According to District of Columbia court reporter Zoe Tillman, U.S. District Judge James Boasberg is currently considering a motion to certify a class in litigation filed by a California consumer in 2008 to challenge the merger of Whole Foods Market Inc. and Wild Oats. As Tillman notes, in March 2009 the Federal Trade Commission settled the anti-competition charges it filed against Whole Foods, which the company’s counsel argues could make it difficult for the plaintiffs to proceed on the merits. Named plaintiff Ekaterini Kottaras reportedly contends that the merger violated antitrust laws by forcing shoppers to pay higher prices in the “premium, natural, and organic” products market. This article discusses the FTC proceedings in some detail to provide a context for the putative class litigation. Whole Foods apparently contends that Kottaras’s expert testimony is insufficient to prove her case and that she may not be an appropriate class member due…
An August 23, 2011, USA Today article has highlighted privacy concerns over how bars, restaurants and night clubs use ID scanners to track and share consumer data with other venues, including whether an individual patron “caused a problem” or “started a fight.” As the purveyor of one system explained to journalist Trevor Hughes, the new networked scanners collect information about patrons and “allow multiple bars in a geographic area to alert each other about known troublemakers,” a feature already employed by New York City, Miami, Los Angeles, and Las Vegas establishments. This development, however, has since spurred criticism from groups like the American Civil Liberties Union (ACLU), which noted that the systems “come with very few promises of security or confidentiality.” For example, as ACLU legislative counselor Chris Calabrese observed, while Canada has placed legal limits on the use of data gathered by ID scanners, consumer data could be sold to…
A group known as “Individualities Tending Toward Savagery” (ITS) has reportedly claimed responsibility for injuring two Mexican nanotechnology researchers with a parcel bomb, putting scientists around the world on alert. According to an August 21, 2011, Chronicle of Higher Education article, the group has a manifesto that cites Ted Kaczynski, the Unabomber, as an inspiration and “has been linked to attacks in France, Spain, and Chile, and to a bomb sent earlier this year to a scientist at another Mexican university who specializes in nanotech.” An analyst quoted by the Chronicle also warned that the threats “show signs of someone well-educated who could be affiliated with a college.” The latest attempt apparently targeted the director of a technology-transfer center at the Monterrey Institute of Technology and Higher Education, while an April 2011 bomb was intended for the nanotechnology department at the Polytechnic University of the Valley of Mexico. In addition,…
A Jewish California resident who claims to be a vegetarian has filed a putative class action against Chipotle Mexican Grill, Inc., alleging that the company failed to adequately warn consumers that its pinto beans are prepared with or contain bacon or pork. Shenkman v. Chipotle Mex. Grill, Inc., No. BC467980 (Cal. Super. Ct., Los Angeles Cty., filed August 19, 2011). According to the complaint, the company does not disclose in its in-store menus that pinto beans contain pork, and, when specifically asked, employees informed the plaintiff that the pinto beans did not contain bacon or pork. Relying on these representations, the plaintiff purportedly purchased and ate the beans to his detriment, financial and otherwise. The plaintiff seeks to certify a class of California residents who “abstain from consuming bacon or pork” for “ethical, religious, moral, cultural philosophical, or health-related reasons” and purchased the pinto beans from any Chipotle restaurant in California…
POM Wonderful LLC, which has created a market for pomegranate juice beverages and other products, has sued Backside Beverages, LLC, alleging that the company has infringed POM’s trademark with its Pompis energy drink. POM Wonderful LLC v. Backside Beverages, LLC, No. 11-760 (D. Utah, filed August 22, 2011). POM’s complaint includes a comprehensive description of the actions it has taken and the $300 million it has spent to promote and protect its brand and trademarks since first introducing fruit-based beverages in 2002. According to the complaint, the defendant has tarnished POM’s registered trademarks “because ‘pompis’ is a slang Spanish term for ‘backside,’ that is, ‘backside’ of a person. In English, ‘pompis’ is equally derogatory,— combining the term POM and the term ‘pis’ which phonetically sounds like ‘piss’.” POM contends that such derogatory use of its marks intentionally trades on its goodwill “while at the same time tarnishing the POM brand.”…
The Natural Resources Defense Council, Inc. (NRDC), a non-profit advocacy organization, has filed a complaint for declaratory and injunctive relief against the U.S. Department of Health and Human Services (HHS) and the Food and Drug Administration (FDA), seeking an order compelling FDA to issue a final response to NRDC’s October 2008 petition calling on the agency to prohibit the use of bisphenol A (BPA) in food packaging and other food-contact materials. NRDC, Inc. v. HHS, No. 11-5801 (S.D.N.Y., filed August 19, 2011). In June 2011, the D.C. Circuit Court of Appeals apparently dismissed a similar complaint, agreeing with FDA that it had been filed in the wrong court. Additional information about that complaint appears in Issue 356 of this Update. According to the new complaint, the Food, Drug, and Cosmetic Act requires FDA to respond to petitions like the one NRDC filed “within 90 days.” Yet, “ [m]ore than one thousand…
Del Monte Fresh Produce N.A., Inc. has filed a complaint for declaratory and injunctive relief against the Food and Drug Administration (FDA) in a federal court in Maryland alleging that the agency lacked an adequate factual basis after a Salmonella outbreak in early 2011 to conclude that the company’s Guatemalan cantaloupe supplier was the source of the contamination. Del Monte Fresh Produce N.A., Inc. v. United States, No. __ (D. Md., filed August 23, 2011). On the basis of that conclusion, FDA allegedly demanded that the company issue a recall or “suffer the consequences of an FDA consumer advisory questioning the wholesomeness of Del Monte cantaloupes.” The agency also imposed an import alert under which Del Monte is prohibited from importing cantaloupes from its Guatemalan source without proving the fruit is “negative” for Salmonella and other pathogens. According to Del Monte, “this prohibition will continue indefinitely into the future unless…
Plaintiffs in a class action certified by a California federal court in April 2011, have filed an opposition to the defendants’ motion to decertify the class in light of a case the U.S. Supreme Court decided in June. Johnson v. General Mills, Inc., No. 10-61 (C.D. Cal., pleading filed August 22, 2011). The plaintiffs allege that class members were misled by the defendants’ representations that YoPlus® products had digestive health benefits. Details about the court’s certification ruling appear in Issue 385 of this Update. According to the plaintiffs, the defendants did not seek review of the court’s certification ruling and, in fact, agreed to the plaintiffs’ class notification program, which the court approved. The defendants purportedly assert that a U.S. Supreme Court ruling rendered 10 days later compels the court to decertify the class. Claiming that the defendants’ argument is untenable as an unwarranted expansion of the U.S. Supreme Court’s holding,…
According to a press report, the U.S. Department of Justice (DOJ) plans to oppose the request for $90.8 million in attorney’s fees filed by counsel for African-American farmers who sued the U.S. Department of Agriculture for discrimination in the administration of farm loan programs. Additional information about the fee petition appears in Issue 405 of this Update. While DOJ lawyers have not yet filed a formal opposition to the fee petition, in other court papers they have apparently indicated that “the government does not agree with every point made by plaintiffs in support of final approval of this settlement agreement.” The fee request represents 7.4 percent of the proposed $1.25 billion settlement. Ten individuals reportedly filed an objection to the settlement earlier in August, contending that settling the matter before discovery would be detrimental to plaintiffs who would lose their bargaining leverage with the federal government. See The BLT: The…
A federal court in Illinois has reportedly dismissed on standing grounds the pro se claims of an individual plaintiff who alleged that the food packaging materials used by McDonald’s Corp., when discarded by consumers, pose a threat to the environment. Gencarelli v. McDonald’s Corp., No. 11-5573 (N.D. Ill., decided August 19, 2011). The plaintiff filed his complaint under the Safe Drinking Water Act, Toxic Substances Control Act and National Environmental Policy Act. According to the court, he lacked standing to sue because he alleged “a generalized grievance” only. To establish standing, the plaintiff was required to show a “concrete injury in fact, causation, and redressability,” which the court apparently found he failed to do. See BNA Daily Environment Report, August 24, 2011.
