The Department of Justice (DOJ) has published the antitrust complaint filed with a proposed final judgment and competitive impact statement, resolving its concerns that the acquisition of Grupo Modelo S.A.B. de C.V. by Anheuser-Busch InBev SA/NV would violate section 7 of the Clayton Act. According to DOJ, the final judgment requires the companies “to divest Modelo’s entire U.S. business to Constellation Brands, Inc.,” or to an alternative purchaser if that transaction fails, to avoid a threat to the competitive U.S. beer market. Court approval of the agreement is required, and public comment is requested within 60 days of publication. See Federal Register, May 22, 2013.
Class representatives in litigation against Papa John’s International have filed an unopposed motion for preliminary approval of a class action settlement in a case involving claims that the company’s franchisees sent unlawful commercial text messages through OnTime4U to some 220,000 individuals without their express consent. Agne v. Papa John’s Int’l, Inc., No. 10-1139 (W.D. Wash., filed May 17, 2013). Details about the court’s grant of class certification appear in Issue 463 of this Update. Under the proposed agreement, class members who are provided notice will automatically receive a merchandise certificate for a free Papa John’s pizza—a $13 retail value with a collective value of $2.86 million. Class members who submit claims and whose phone numbers are verified will also receive $50 each at an aggregate value of $11 million. Attorney’s fees and costs will add $2.45 million to the settlement fund, and $25,000 in incentives for the named plaintiffs will…
A YUM! Brands shareholder has brought a derivative action on behalf of the company against its officers and directors in a federal court in Kentucky, alleging they inflated the company’s growth predictions and failed to promptly inform shareholders that the company purchased chicken with allegedly excessive levels of antibiotics and toxic chemicals for sale in KFC establishments in China; according to the complaint, once the information became public, business in China and the company’s share price plummeted, while the defendants “profited handsomely” from “dumping more than $64.6 million of personally held common stock during the Relevant Period.” Zona v. Novak, No. 13 506 (W.D. Ky., filed May 21, 2013). Alleging breach of fiduciary duty, insider selling and misappropriation of information, and unjust enrichment, the plaintiff seeks damages, injunctive relief, disgorgement, attorney’s fees, costs, and expenses. She claims that management knew as early as 2009 that the chicken purchased in China was tainted…
A federal court in Georgia has overruled the government’s objections to Stewart Parnell’s representation by attorney Kenneth Hodges in the defense of criminal charges arising from a Salmonella outbreak allegedly traced to Parnell’s former company, Peanut Corp. of America. United States v. Parnell, 13-12 (M.D. Ga., order entered May 30, 2013). Because the government’s motion was sealed, further details about the objections are unknown. According to the court, Parnell “knowingly and voluntarily waived his right to object to Hodges’ potential or actual conflict.” Additional information about the criminal charges appears in Issue 472 of this Update.
A federal court in California has granted in part and denied in part the motion to dismiss filed by Twinings North America, Inc. to the second amended putative class complaint filed by a woman who alleged that she paid a premium for the company’s green, black, white, and red teas relying on their purportedly misleading label—“a natural source of antioxidants.” Lanovaz v. Twinings N. Am., Inc., No. 12-2646 (N.D. Cal., order entered May 23, 2013). The company sought to dismiss claims relating to products the plaintiff did not purchase, labeling the plaintiff did not see or advertising upon which the plaintiff did not rely. According to the court, as long as the “not purchased products” are nearly identical, a plaintiff may bring claims on behalf of others related to those products. Here, “Because the claims for 51 of the varieties of tea are based upon the exact same label describing…
A federal court in Florida has determined that a putative statewide class is not preempted under federal law from claiming that the presence of genetically modified (GM) corn in Campbell Soup Co. vegetable soups renders its “100% Natural” labeling representations false. Krzykwa v. Campbell Soup Co., No. 12-62058 (S.D. Fla., order entered May 24, 2013). The court also refused to dismiss the claims under the primary jurisdiction doctrine. In the original complaint, the plaintiff alleged that he purchased two soup products with GM corn. Their labels had been pre-approved by the U.S. Department of Agriculture (USDA) because they also contained chicken and the agency has pre-approval authority as to these products. Campbell argued that USDA’s seal of approval preempted state law-based labeling-related claims. Later complaint amendments changed the products at issue to vegetarian soups whose labels are under the Food and Drug Administration’s (FDA’s) regulatory purview and do not require pre-approval.…
The Ninth Circuit Court of Appeals has upheld a lower court ruling affirming the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) decision that genetically modified (GM) alfalfa is not a “plant pest” and thus that it lacked authority to stop its deregulation or to consult with the Fish and Wildlife Service regarding potential environmental impacts. Ctr. for Food Safety v. Vilsack, No. 12-15052 (9th Cir., decided May 17, 2013). The Center for Food Safety, an organization dedicated to environmental advocacy, has announced its determination to appeal the ruling and to pursue other legal options to stop the planting and cultivation of GM alfalfa. The gist of the Ninth Circuit’s ruling is that while the plaintiffs’ environmental and economic concerns may be valid, they have no bearing, under the current statutory scheme, on APHIS’s authority vis-à-vis GM crops. The court’s opinion methodically explains how GM alfalfa is created…
The European Food Safety Authority (EFSA) has published new guidance on ways of assessing the potential risks of producing genetically modified (GM) animals, including fish, insects, mammals, and birds. Although EFSA reports that it has not yet received any applications for GM animals, the European Commission evidently requested that the agency develop environmental risk assessment (ERA) guidance because scientific developments indicate that “future submissions may be made for a number of species.” According to EFSA, the guidance will provide a “clear framework” for evaluating potential adverse effects of living GM animals on the environment and on human and animal health. “The core of the guidance is that ERAs for GM animals must be carried out in a scientifically sound and transparent manner,” said Elisabeth Waigmann, head of EFSA’s GMO Unit. “They must be based on sufficient scientific and technical data that enable conclusions to be drawn on possible environmental risks posed by…
The Food and Drug Administration (FDA) has issued a notice about a collection of information titled “Experimental Study on Consumer Responses to Nutrition Facts Labels with Various Footnote Formats and Declaration of Amount of Added Sugars” that the agency has submitted to the Office of Management and Budget for review. FDA reported that it plans to use the information to promote public health and explore consumer responses to various food label formats for the footnote section of the Nutrition Facts label, including “those that exhibit information such as a description of percent Daily Value, a succinct statement about daily caloric intake, a general guideline for interpreting percent Daily Values, or a footnote about nutrients whose daily intake should be limited.” This study will also reportedly explore “how declaring the added sugars content of foods might affect consumers’ attention to and understanding of the sugars and calorie contents and other information…
The U.S. Department of Health and Human Services (HHS) and the U.S. Department of Agriculture (USDA) have announced two public meetings of the 2015 Dietary Guidelines Advisory Committee (DGAC) on June 13 and June 14, 2013, in Bethesda, Maryland. With an aim to create an updated version of its Dietary Guidelines for Americans report, required by HHS and USDA to be issued “at least every five years,” DGAC will reportedly evaluate new scientific evidence and resource documents to “develop a report to the Secretaries of HHS and USDA that outlines its science-based recommendations and rationale.” See Federal Register, May 30, 2013.
