A federal court in California has granted in part and denied in part the motion to dismiss filed in a putative class action against Whole Foods Market. Pratt v. Whole Foods Mkt. Cal., Inc., No. 12-5652 (N.D. Cal., order entered March 31, 2014). The claims relate to a number of 365 Everyday Value® products that the plaintiff purchased and involve the following allegedly unlawful or misleading label representations: “evaporated cane juice” (ECJ), “natural” and “no sugar added.” Because the plaintiff abandoned in his amended complaint all claims regarding the defendants’ whipped topping product, the court dismissed all claims based on this product with prejudice as to the plaintiff and without prejudice as to any putative class member. The “no sugar added” claims were thus dismissed, “as the only product alleged to have such a misleading claim was the whipped topping.” The court also emphasized that, per its August 2013 order, any claims…
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A California resident has filed a putative statewide class action against H.J. Heinz Co. alleging that its Distilled White Vinegar is falsely advertised as “all natural” because it is made with genetically modified (GM) crops. Banafsheha v. H.J. Heinz Co., No. 14-2023 (C.D. Cal., filed March 17, 2014). Alleging that she paid more for the product due to the “all natural” labeling and would not have purchased the product had she known that it contains GM ingredients, the plaintiff claims, “Over 70% of U.S. corn crops are GM. Defendant sources its ingredients from U.S. commodity suppliers who supply GM crops. Large volume food manufacturers who wish to use non-GM ingredients must specifically source their crops, typically from Europe, or undertake the additional step and expense of verifying the supply from non-GM growers through identity preservation programs. In most instances, manufacturers who purchase only non-GM crops for their products specifically label the…
The defendant in litigation alleging that it conceals the sugar added to its tea-like yerba mate products by listing the ingredient as “organic evaporated cane juice” has removed the action to federal court. Cowan v. Guayaki Sustainable Rainforest Prods., Inc., No. 14-1248 (N.D. Cal., removed March 17, 2014). The plaintiff, a California resident with a family history of diabetes, alleges that she purchased the products relying on the ingredients listed on the product labels and paid more for them “because she believed the Class Products contained lesser amounts of sugar and was [sic] healthier for her” than comparable products. Seeking to represent a nationwide class of consumers, the plaintiff claims that Guayaki releases misbranded products into the stream of commerce and that the company violates the Unfair Business Practices Act, California False Advertising Act and Consumers Legal Remedies Act. She also brings causes of action for negligent misrepresentation and breach of…
A federal court in California has refused to certify four classes of Starbucks employees in litigation alleging that its rest break policy and scheduling practices, and meal period policy and practices violated the state’s Labor Code and Unfair Competition Law. Cummings v. Starbucks Corp., No. 12-6345 (C.D. Cal., decided March 24, 2014). As to the proposed meal break class, the court found that the plaintiff’s “second theory of liability—that Starbucks had a practice of failing to provide timely meal breaks—does not present a common question of law” because “there is no common answer as to why employees took a late meal break, and individualized inquiries into each late meal break would be required.” The court also found as to this proposed class that the plaintiff’s claims did not meet the typicality requirement because her alleged late meal break claims were due not to a defective policy, but “because of unique…
While a federal court in California has dismissed a request for injunctive relief in a consumer fraud action against Wallaby Yogurt Co. for lack of standing, it will allow the first amended complaint’s remaining claims to proceed. Morgan v. Wallaby Yogurt Co., Inc., No. 13-0296 (N.D. Cal., order entered March 13, 2014). Additional details about the court’s ruling on the plaintiff’s original complaint appear in Issue 500 of this Update. As to the request for prospective injunctive relief, the court agreed with the defendant that the plaintiffs will not be deceived as to future product purchases because they now know that “evaporated cane juice” is added sugar. So ruling, the court acknowledged a split among the district courts in the circuit on this issue. The court also expressly disagreed with Kane v. Chobani, Inc., No. 12-2425 (N.D. Cal. Sept. 19, 2013), to the extent that the court (i) found that…
A federal multidistrict litigation (MDL) court in California has granted POM Wonderful’s motion to decertify a class of claimants alleging that they were misled by health-benefit representations for the company’s pomegranate juice. In re POM Wonderful LLC Mktg. & Sales Practices Litig., MDL No. 2199 (C.D. Cal., order entered March 25, 2014). Details about the motion appear in Issue 516 of this Update. According to a news source, the court found that (i) the plaintiffs’ two damages models failed to support a class action, and (ii) claims that consumers allegedly paid an inflated price for the company’s juice failed to explain how the company’s health-benefit representations caused damage. As to the practical effects of proceeding as a class action, the court reportedly stated, “Here, Plaintiffs acknowledge that, based on the volume of product sold, every adult in the United States is a potential class member. These millions of consumers paid…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has added methyl isobutyl ketone to the list of chemicals known to the state to cause reproductive toxicity under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). The chemical is used as a solvent for vinyl, epoxy, acrylic and natural resins, and as a synthetic flavoring adjuvant and a fruit flavoring. According to OEHHA, the listing is based on the authoritative body listing mechanism because the U.S. Environmental Protection Agency has identified it as a chemical that causes reproductive toxicity. The listing is effective March 28, 2014, and will require exposure warnings to consumers. See OEHHA News Release, March 28, 2014. Issue 518
A federal court in California has determined that the tasks an employee performed only when working the closing shift for Starbucks Corp. consumed a de minimis amount of time and thus dismissed his claims that the company violated the state Labor Code by failing to pay him for that time. Troester v. Starbucks Corp., No. 12-7677 (C.D. Cal., order entered March 7, 2014). According to the court, the software Starbucks used during the relevant time period required an employee to clock out before initiating the store closing procedure, which involved setting the store alarm and locking the door, tasks that took no more than one to two minutes. Other tasks the employee undertook included walking employees to their cars or staying with them until they were picked up, placing forgotten patio furniture indoors, or even re-entering the store to retrieve an employee’s personal belongings. In the court’s view, “[e]ven assuming all…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has scheduled an April 14, 2014, public workshop to discuss “a possible regulatory action to change the existing regulation governing Proposition 65 warnings.” The Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) requires manufacturers to warn consumers if their products contain any substances known to the state to cause cancer or reproductive toxicity. Failure to provide such warnings exposes manufacturers to enforcement actions filed by private entities or state prosecuting authorities and the possibility of significant fines. While the draft proposed changes hyperlinked to the meeting announcement could change before OEHHA takes any final action, they were developed on the basis of public input provided in 2013, after the agency conducted a pre-regulatory workshop, and respond to the governor’s proposal to reform Prop. 65 to, among other things, “require more useful information to the public on what they…
A former Chiptole Mexican Grill employee has brought a wage-and-hour complaint against the company, including claims of harassment, gender discrimination, retaliation, battery, and wrongful termination. Roberts v. Chipotle Mex. Grill, Inc., No. BC537487 (Cal. Super. Ct., Los Angeles Cty., filed February 26, 2014). Filing on behalf of herself and in a representative capacity on behalf of others, plaintiff Tedi Roberts claims that Chipotle (i) failed to pay legally required overtime or compensation for hours worked; (ii) failed to provide legally required meal periods and rest periods or accurate wage statements; (iii) failed to take action when she complained about sexual harassment and battery; (iv) refused to change her schedule or provide a transfer to help her avoid further harassment, battery, embarrassment, and humiliation; and (v) retaliated against her—terminated her employment—for complaining about the conditions of her employment including through the “protected activity” of social networking. Roberts avers that she has…
