A federal jury agreed with POM Wonderful LLC that Welch Foods, Inc. developed intentionally confusing and misleading marketing and labeling for its White Grape Pomegranate juice product to take advantage of the market POM created for pomegranate juice, but determined that POM did not lose sales because of Welch’s conduct. POM Wonderful LLC v. Welch Foods Inc., No. 09-00567 (C.D. Cal., verdict reached September 13, 2010). More details about the case appear in Issue 290 of this Update. POM has reportedly asked the Ninth Circuit Court of Appeals to review the verdict, claiming that the lower court’s decision to try the case in two phases led the company to refrain from introducing evidence about lost sales during the first phase, which focused on liability. According to a news source, the company requested before the verdict that the court not instruct the jury to decide whether POM had lost sales, but…
Tag Archives California
Taco Bell has requested that the Ninth Circuit Court of Appeals review a district court determination that three insurance companies are not required to provide coverage under commercial liability policies for economic loss allegedly arising from decreased patronage in the wake of a 2006 E. coli outbreak. Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Ready Pac Foods, Inc., No. 09-3220 (C.D. Cal., appeal filed May 11, 2011). The district court reportedly issued an order granting a request for certification of the economic loss claim and stayed its adjudication of other unresolved matters to allow Taco Bell to take an interlocutory appeal to the Ninth Circuit. According to the lower court, “The lost patronage claim presents a legal issue that is unique and distinct from the other types of loss for which Taco Bell seeks a declaration of coverage . . . such as claims for bodily injury, claims for…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) recently finalized its decision to add ethanol in alcoholic beverages and Chinese-style salted fish to the state’s list of carcinogenic chemicals. The listing was effective April 29, 2011. Companies that sell products containing listed chemicals in California are required to notify consumers that their products contain a chemical known to the state to cause cancer under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). More information about OEHHA’s decision appears in Issue 385 of this Update.
Contending that Diamond Foods, Inc. has defended its decision to place “heart-healthy” claims on its packaged walnuts on the advice of counsel, and removed them after a Food and Drug Administration (FDA) warning, also on the advice of counsel, the named plaintiff in a putative class action alleging consumer-fraud against the company is seeking the production of attorney-client communications. Zeisel v. Diamond Foods, Inc., No. 10-01192 (N.D. Cal., filed April 26, 2011). Details about a court order denying the defendant’s motion to dismiss appear in Issue 363 of this Update. The plaintiff points to instances in responses to interrogatories and deposition questions where the company defended its decision to link the omega-3 fatty acids in walnuts to heart health as a good faith bona fide error and indicated that decisions about the labeling were made with legal counsel’s approval. Yet, the company has refused to produce any attorney-client communications on…
A federal court in California recently granted a motion for final approval of a class action settlement in litigation involving allegations that Kellogg Co. fraudulently claimed that its Frosted Mini-Wheats® cereal “was clinically shown to improve children’s attentiveness by nearly 20%.” Dennis v. Kellogg Co., No. 09-01786 (S.D. Cal., decided April 5, 2011). Additional information about the case appears in Issue 368 of this Update. Two class members objected to the settlement, challenging the cy pres relief, which will provide money remaining from the $2.75 million settlement fund to “appropriate charities,” as well as donated food items valued at $5.5 million to charities feeding the indigent. According to the objectors, class counsel owes a fiduciary duty to the class and “[s]omewhere along the way, Class Counsel lost sight of that duty and became an advocate for some unnamed third party charity.” The objectors also argued that the “food donation allows…
A proposed California bill (A.B. 669) that would have levied a state tax on sweetened beverages has reportedly died in a legislative committee. Sponsored by Assembly Member Bill Monning (D-Carmel), the proposed tax of 1 cent per fluid ounce on soft drinks, energy drinks, sweet teas, and other sugary beverages would have raised an estimated $1.7 billion for health-related programs for children. Monning has vowed to continue supporting the tax, asserting that “the long-term health of California’s children is at risk and we must work together to avoid a future influx of chronically ill adults into our already overstressed health care system.” See The (San Jose) Mercury News, April 26, 2011.
Clos LaChance Wines has filed a complaint in a California federal court seeking a declaration that “Mommy” is not a protected trademark when used on a wine label and that the company’s domestic wine products, “MommyJuice White Wine” and “MommyJuice Red Wine,” do not infringe defendant’s “Mommy’s Time Out®” imported wines. Clos LaChance Wines, LLC v. Selective Wine Estates, Inc., No. 11-1848 (N.D. Cal., filed April 18, 2011). Clos LaChance apparently began using its label in August 2010; it includes an image of a woman with four arms juggling a computer, house, cell phone, and teddy bear. Selective Wines, whose label contains an image of an empty chair facing a corner alongside a small table with a bottle and wine glass, purportedly sent a demand letter to Clos LaChance accusing it of infringing Selective’s trademark and demanding that Clos LaChance cease and desist from using the name “MommyJuice” in connection with…
Taco Bell® has launched a nationwide public relations campaign calling for an apology from the law firm that voluntarily dismissed a lawsuit alleging that the company misrepresented the beef filling in its taco and burrito products. Obney v. Taco Bell Corp., No. 11-00101 (C.D. Cal., notice of dismissal filed April 18, 2011). Additional information about the putative class action appears in Issue 379 of this Update. The company apparently launched the campaign “to make sure consumers know that it has not changed products, ingredients or advertising despite what the Beasley Allen law firm has claimed.” According to a news source, the firm said, “From the inception of this case, we stated that if Taco Bell would make certain changes regarding disclosure and marketing of its ‘seasoned beef’ product, the case would be dismissed.” Taco Bell® asks the attorneys, “Would it kill you to say you’re sorry?” See Taco Bell® News Release,…
McDonald’s Corp. has filed a motion to dismiss a putative class action seeking to stop the company from advertising and selling to children its allegedly “unhealthy Happy Meals” with toys. Parham v. McDonald’s Corp., No. 11-00511 (N.D. Cal., motion filed April 18, 2011). Details about the lawsuit appear in Issue 375 of this Update. The company contends that the plaintiff lacks standing to sue under the unfair competition law, Consumer Legal Remedies Act or false advertising law and argues that the complaint is the Center for Science in the Public Interest’s “attempt to distort state consumer protection law beyond recognition” to stop McDonald’s from selling Happy Meals containing toys in California. According to the motion, the plaintiff does not allege physical harm, reliance on the company’s advertising (that is, “Plaintiff does not allege that her own children saw any particular advertisement or made a single purchase from McDonald’s”), or identify…
Seeking a declaration about respective indemnity obligations, National Union Fire Insurance Co. of Pittsburgh, Pa. has filed a complaint in a California federal court against several other insurance companies in a dispute stemming from a neurological injury allegedly caused by the mahi-mahi fish served in a fish burrito at a Rubio’s Restaurant. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Nationwide Mut. Fire Ins. Co., No. 11-00755 (S.D. Cal., filed April 11, 2011). The injured consumer apparently seeks damages in excess of $7 million. The insurance defendants are allegedly defending the fish supplier and restaurant in the personal-injury action, and National Union claims that its policy provides excess insurance only and that the other carriers have a duty to indemnify the insureds first.
