Eatsa, a fast-food chain featuring high-tech ordering and automated service, faces a putative class action alleging its restaurants are inaccessible to the blind. Am. Council for the Blind, v. Keenwawa, Inc., No. 17-2096 (S.D.N.Y., filed March 23, 2017). Eatsa customers place orders through mobile apps or kiosks in the restaurants, then swipe a credit card to pay; the customer name then appears on a screen next to a wall of food-delivery “cubbies.” When an order is ready, an LCD screen lights up and displays the customer’s name, and the customer must tap a particular corner of the cubby to open it and retrieve the order. The complaint alleges that Eatsa failed to configure either its mobile app or kiosks to use audio technology, rendering the restaurant inaccessible to the blind or those with low vision. Although Eatsa staffs each restaurant with one or two human “hosts” to help customers, the…
The Securities and Exchange Commission (SEC) and the Department of Justice (DOJ) have reportedly ended their investigations into Hampton Creek's alleged sales-inflation buyback operation, in which employees purchased jars of the company's Just Mayo product then sold the jars back to the company. Bloomberg initially reported that the company had expensed $1.4 million for "Inventory Consumed for Samples and Internal Testing” while reporting $1.9 million in sales during the same period, but a forensic consulting team with an accounting firm commissioned by Hampton Creek apparently found that the company spent less than half of one percent of sales on the buyback program. Additional information on the Bloomberg report appears in Issue 613 of this Update. See Fortune, March 24, 2017. Issue 629
The Senate Agriculture Committee has approved Sonny Perdue's nomination to lead the U.S. Department of Agriculture (USDA), with Perdue receiving support from all members of the committee except Sen. Kirsten Gillibrand (D-N.Y.), along with an abstention from Sonny Perdue's cousin, David Perdue (R-Ga.). The full Senate vote has not yet been scheduled. See Politico, March 30, 2017. After criticism over potential conflicts of interest, nominee for commissioner of the U.S. Food and Drug Administration (FDA) Scott Gottlieb has promised to recuse himself for one year from agency decisions involving more than a dozen companies. Gottlieb faces a Senate confirmation hearing on April 5, 2017. See The New York Times, March 29, 2017. Issue 629
Emerging technologies are changing the way we live, travel and buy goods and services. While new technology may improve our lives, it also brings new risks. Shook, Hardy & Bacon Partners Cary Silverman and Phil Goldberg, with Of Counsel Jonathan Wilson, have authored a report, Torts of the Future: Addressing the Liability and Regulatory Implications of Emerging Technologies, addressing the challenges of promoting innovation and economic growth while protecting consumer safety and privacy. The report, published for the U.S. Chamber Institute for Legal Reform, focuses on five main areas of new technology: autonomous vehicles; the commercial use of drones; private space exploration; the “sharing economy,” which allows people to generate income from underused assets such as cars and housing; and “The Internet of Things,” involving products connected to collect and share data. The authors examine current technological developments, provide an overview of existing regulatory and liability frameworks, consider current and…
The U.S. Department of Justice (DOJ) has obtained a consent decree against Valley Milk Products LLC prohibiting the sale of more than four million pounds of milk powder products and preventing the company from manufacturing the products in the future. U.S. v. All 50 pound high heat nonfat dry milk powder (Grade A), No. 16-0076, (W.D. Va., order entered March 17, 2017). DOJ seized dry milk and dry buttermilk products at the company’s Strasburg, Virginia, facility in November 2016 after FDA inspections found unsanitary conditions and confirmed samples of Salmonella and Listeria. According to the U.S. Food and Drug Administration, the Salmonella strains were “nearly identical” to strains found at Strasburg in 2010, 2011 and 2013, indicating “the existence of persistent/resident strain and harborage” of the bacteria at the facility. DOJ also alleged the products were “contaminated with filth” after inspectors found dark brown droplets forming on metal surfaces of…
Just Born, Inc. is facing a putative class action alleging its boxes of candy are underfilled by 35 percent. Escobar v. Just Born, Inc., No. 17-1826 (C.D. Cal., removed to federal court March 17, 2017). The plaintiff allegedly bought a box of the company’s Mike and Ike candy at a movie theater and claims Just Born is “falsely and deceptively misrepresenting” the amount of product contained in movie boxes of Mike and Ike and Hot Tamales candies it sells at movie theaters and retail outlets nationwide. The plaintiff claims that because she bought the product at a movie theater, where it was stored in a glass showcase, she paid for the product before she took possession of it and had no opportunity to inspect the packaging for “other representations of quantity of candy product contained therein other than the size of the box itself.” The plaintiff also relies on a…
Three plaintiffs have filed a putative class action against Dr Pepper Snapple Group, Inc., claiming that although the label on the company’s Canada Dry Ginger Ale product says “Made With Real Ginger,” the product contains “no detectable amount of ginger.” Hashemi v. Dr. Pepper Snapple Grp., Inc., No. 17-2042 (C.D. Cal., filed March 14, 2017). The plaintiffs argue that they hired an independent lab to test for ginger in the product, which is advertised on television with footage of the cans attached to ginger plants and a voice-over that asserts, “For refreshingly real ginger taste, grab a Canada Dry Ginger Ale. Real Ginger. Real Taste.” Seeking class certification, restitution, declaratory and injunctive relief, damages and attorney’s fees, the plaintiffs allege violations of the California and Colorado consumer-protection statutes as well as breaches of warranties, fraud and misrepresentation. Issue 628
Subway has issued a notice of action in Canada against the Canadian Broadcasting Corporation (CBC) following a February broadcast of the network’s “Marketplace” program that claimed DNA testing of the chain’s sandwiches showed its chicken was half processed soy. The sandwich chain is reportedly asking for $210 million in damages for defamation. According to the Toronto Star, Subway asked the CBC to retract the story but decided to file suit after the network refused. Additional details about a U.S. projected class action filed against Subway after the CBC report appear in Issue 627 of this Update. See Fortune, March 17, 2017, Issue 628
An Oregon plaintiff has filed a putative class action against the makers of Cascade Ice Coconut Water alleging the product contains no coconut. Silva v. Unique Beverage Co., LLC, No. 17-0391 (D. Or., filed March 9, 2017). The complaint alleges that “[d]espite the large colorful coconuts and the word 'Coconut' that defendant puts on the front of its label, defendant’s product actually contains no coconut water, no coconut juice, no coconut pulp, no coconut jelly.” The plaintiff also claims that consumers buy coconut water for its “special health qualities,” making its sales a “billion-dollar industry.” Washington-based Cascade Ice’s label lists the primary ingredients of the coconut water product as carbonated water, strawberry puree, citric acid, pear juice concentrate and “natural flavors.” For violations of the Oregon Unlawful Trade Practices Act, the plaintiff seeks equitable and injunctive relief, actual, statutory and punitive damages and attorney’s fees. Issue 628
A California federal court has postponed issuing a final dismissal order in Safeway Inc.’s proposed settlement with a putative class, ordering the parties to develop a plan for publicizing the settlement to alert other potential plaintiffs that the statute of limitations will begin to run. In re Safeway Tuna Cases, No. 15-5078 (N.D. Cal., order entered March 13, 2017). The class action, involving allegations of underfilled cans of tuna sold in Safeway grocery stores and those of its subsidiary Vons, received significant media coverage in outlets such as the Los Angeles Times and the San Francisco Chronicle. The court said it “is concerned that potential class members who may have seen such coverage would now be unaware that the case has been dismissed, and that the limitations period for filing a further suit therefore may run upon dismissal.” The U.S. Supreme Court has held that the filing of a class…
