New Lawsuits Filed: Cochineal Extract in Starbucks Products, Salmonella in Pet Food and Eggs, Frito-Lay Challenge to Order for Production of Employment Data
A California resident has filed a putative class action against Starbucks Corp. alleging that the company deceived consumers by failing to disclose that some of its products were made with cochineal extract, a common food-coloring ingredient made from crushed insects. Anderson v. Starbucks Corp., No. BC485438 (Cal. Super. Ct., Los Angeles Cty., filed May 25, 2012). Seeking to represent a nationwide class and statewide subclass of consumers, the plaintiff claims that she and the class members, had they known about the company’s use of the ingredient, would not have purchased the products for a number of reasons, including objections to consuming animal products, allergic responses to the ingredient or “sheer disgust.” Alleging violations of the California Unfair Business Practices Act and False Advertising Act, unjust enrichment, fraud by omission/concealment, and violation of California’s Consumers Legal Remedies Act, the plaintiff seeks disgorgement, restitution, compensatory and punitive damages, payment to a cy pres fund, corrective advertising, an apology, attorney’s fees, and costs.
At least two lawsuits have been filed against Diamond Pet Foods and a retailer, alleging that dog food tainted with Salmonella sickened an infant and was responsible for the death of a pet. Eisenberg v. Diamond Pet Food Processors of S.C., L.L.C., No. 12-3127 (D.N.J., filed May 25, 2012); Marciano v. Schell & Kampeter, Inc. d/b/a Diamond Pet Foods, No. 12-2708 (E.D.N.Y., filed May 30, 2012). The plaintiff in Eisenberg alleges that his 8-week-old son was hospitalized for three days after contracting an infection from exposure to Salmonella tainted dry dog food. Counsel has reportedly indicated that it was unknown how the child contracted the illness; samples of the family’s pet food apparently did not test positive for Salmonella, although the child allegedly contracted the rare strain linked to the recalled pet food. See MSN.com, May 31, 2012.
The plaintiff in Marciano seeks to certify national and New York classes of pet food purchasers, alleging that the recalled dog food sickened two of her pets, one of which died. She alleges breach of implied and express warranty, negligence, strict product liability, unjust enrichment, and violations of New York consumer fraud statutes. She seeks actual, consequential and treble damages; injunctive and declaratory relief; interest; attorney’s fees; and costs.
A California resident has filed a wrongful death suit against an egg producer and restaurant, alleging that the consumption of Salmonella tainted eggs caused his father’s death. Marlais v. Quality Egg, LLC, No. RG12632871 (Cal. Super. Ct., Alameda Cty., filed June 1, 2012). According to the complaint, some two months after his father died in 2010, the defendants issued a recall of more than 228 million shell eggs, and the Food and Drug Administration found significant objectionable conditions at the Iowa-based egg producer’s facility. Alleging strict products liability, negligence and breach of implied warranties, the plaintiff seeks wrongful death and survivorship damages, economic and non-economic damages, interest, and court costs.
Frito-Lay, Inc. has filed a complaint against the U.S. Department of Labor (DOL) in a Texas federal court seeking judicial review of a final administrative order requiring the company to produce certain employment information. Frito-Lay, Inc. v. DOL, No. 12-1747 (N.D. Tex., filed June 5, 2012). As a federal contractor, Frito-Lay is subject to an executive order and regulations prohibiting discrimination. DOL’s Office of Federal Contract Compliance Programs (Office) enforces the order “primarily through agency-initiated compliance evaluation and complaint investigations.”
According to the complaint, the Office issued a standard compliance review scheduling letter in July 2007 “for a routine desk audit of Frito Lay’s Dallas Baked Snack facility” and sought data for the 2006 affirmative action plan year and the first half of 2007. Frito-Lay apparently complied with the request and heard nothing more until fall 2008, when the Office requested data dating back to July 2005 and forward to December 2007. Again, Frito-Lay apparently complied with the request, and the Office subsequently claimed that its analysis “revealed a statistically significant disparity in the hiring rates of females versus males for entry-level Warehouse/Material Handler positions” from June 2006 through December 2007. Frito-Lay alleges that the Office did not thereafter conduct a standard investigation, but instead “took the unusual, if not unprecedented, step of expanding the temporal scope of its compliance review beyond 2007.”
The Office allegedly sought additional employment data from January 2008 through October 2009, and Frito-Lay objected to this request “on the grounds that [Office] regulations do not contemplate the agency’s investigation of post-Scheduling Letter conduct in compliance reviews.” The Office initiated an enforcement action, and an administrative law judge (ALJ) purportedly sustained Frito-Lay’s objection and recommended dismissal of the Office’s complaint. Thereafter, DOL’s Administrative Review Board reversed the ALJ’s recommended decision and order finding that the Office had the authority to request the 2008-2009 data because it was pursuing “a concern about a statistically significant disparity.”
Challenging the board’s order, Frito-Lay alleges that (i) the request for additional data contrary to agency norms violated the Administrative Procedure Act (APA) and the Fourth and Fifth Amendments of the U.S. Constitution, (ii) the board’s refusal to close the case in a timely manner violated the APA, (iii) the Office’s delay in bringing the enforcement action violated the APA, and (iv) any potential discriminatory hiring claims are time-barred.
