Renowned restaurateurs Mario Batali and Joseph Bastianich have reportedly been sued by workers in their East and West Coast restaurants. A complaint filed in late July 2010 by current and former employees of New York City’s Babbo Ristorante e Enoteca was amended to include a class of employees who work in five additional east coast eateries. They reportedly allege that the Batali-Bastianich enterprise “unlawfully confiscated a portion of their workers’ hard-earned tips in order to supplement their own profit. At the end of every shift, instead of distributing customers’ credit card tips to the workers who earned them as the law requires, Mr. Batali, Mr. Bastianich, and their restaurants took from the tip pool an amount equal to approximately 4-5% of the restaurants’ wine sales (and sometimes other beverage sales) for the night and put it in their own pockets.” The New York plaintiffs are apparently seeking class certification and…
Tag Archives California
The Ninth Circuit Court of Appeals has determined that an agreement among grocery chains in Southern California to share profits during an anticipated labor strike was anticompetitive in violation of the Sherman Act and rejected defendants’ argument that the violation could be excused because the agreement was designed to be used as an economic weapon in a labor dispute. California v. Safeway, Inc., Nos. 08 55671, 08-55708 (9th Cir., decided August 17, 2010). According to the court, despite the limited duration of the agreement and the fact that the groceries involved constituted, at most, 70 percent of the market, the agreement was anticompetitive because it removed all incentive to compete by providing lower prices or better service to consumers. The court disagreed that the defendants needed the pact to effectively bargain with striking employees. In this regard, the court stated, “Defendants claim no purpose for their agreement beyond strengthening their hands…
A California appellate court has reversed a summary judgment order that terminated litigation involving claims that chain restaurants violated Proposition 65 (Prop. 65) by selling grilled chicken products to consumers without appropriate warnings about carcinogens created by the cooking process. Physicians Comm. for Responsible Med. v. McDonald’s Corp., No. B218089 (Cal. Ct. App., decided August 12, 2010). The carcinogens at issue are polycyclic aromatic hydrocarbons and PhIP (2-amino-1-methyl-6-phenylimidazol[4,5-b]pyridine). The trial court had dismissed the claims in late 2008 finding that the proposed warnings, which mentioned “well cooked,” “thoroughly cooked” and “grilled” chicken, were barred by conflict preemption because they would frustrate the U.S. Department of Agriculture’s (USDA’s) “longstanding policy of promoting the safe cooking of chicken” under the federal Poultry Products Inspection Act (PPIA). The court agreed with the defendants that the warnings would have frightened consumers from properly cooking chicken. The trial court dismissed the claims again in June 2009…
Three elected San Francisco officials recently introduced legislation to amend the city’s health code by restricting restaurant toy giveaways to only those meals that meet stringent nutritional guidelines. The Healthy Food Incentives Ordinance (10196) would apply to all San Francisco restaurants, but mostly affect fast food establishments that offer toys linked to the purchase of meals targeted to children and high in calories, salt or fat. In April 2010, Santa Clara County, California, became the first local government to enact a similar measure, highlighted in Issue 347 of this Update. The proposed San Francisco measure would prohibit restaurants from offering an “incentive item” such as toys, trading cards or admission tickets with a single menu item containing more than 200 calories or 480 milligrams of sodium or an entire meal containing more than 600 calories or 640 milligrams of sodium. Another stipulation calls for toy giveaway meals to provide no…
Seeking to represent a statewide class of all those who purchased extra virgin olive oil during a four-year period, one of Bravo TV’s “Top Chefs” and individual consumers have sued companies that make and sell the product, alleging that it often does not meet international and U.S. standards. Martin v. Carapelli USA, LLC, No. BC442300 (Cal. Super. Ct., Los Angeles Cty., filed July 30, 2010). The complaint cites a June 2010 study conducted by University of California at Davis’s Olive Oil Center researchers who apparently concluded that samples of imported olive oil labeled as “extra virgin” often did not meet applicable standards. They allegedly determined that the failures could be attributed to (i) oxidation from poor handling, (ii) “adulteration with cheaper refined olive oil,” or (iii) oil made from inferior olives, processing flaws, and/or improper oil storage. According to the complaint, “For years, chefs and home cooks have shared anecdotal…
A federal court in California has denied in part and granted in part the motion to dismiss filed by Smart Balance, Inc., which is defending a putative class action alleging that the company misled consumers by marketing its Nucoa margarine as cholesterol-free and healthy despite the artificial trans fat in the product. Yumul v. Smart Balance, Inc., No. 10-00927 (C.D. Cal., order entered July 30, 2010). The plaintiff alleges violations of the state’s unfair competition and false advertising laws and violation of the Consumer Legal Remedies Act. She seeks an injunction requiring that the misleading advertising practices cease, a corrective advertising campaign, restitution, and an injunction requiring the destruction of all misleading and deceptive materials and products. The defendant asserted that the factual allegations lacked sufficient specificity and also contended that the complaint be dismissed because it was based on conduct outside the applicable limitations period. Declining to consider some materials submitted…
According to a news source, a company that makes high-priced cookware and targets its sales to Spanish-speaking immigrants in the Los Angeles area has agreed to settle litigation accusing it of fraudulently claiming that its products could cure diseases ranging from cancer and Alzheimer’s to diabetes and heart disease. California v. Rena Ware Int’l, Inc., No. BC437981 (Cal. Super. Ct., Los Angeles Cty., settlement reached July 1, 2010). California Attorney General Jerry Brown brought the lawsuit, alleging unfair competition and false advertising. Sales representatives reportedly told consumers that the cookware reduced high blood pressure by removing hormones from meat while it cooked. Under the agreement, the manufacturer will pay a total of $625,000 to resolve the dispute and must ensure, by means of an independent monitor, that it will refrain from using either false information or high-pressure sales tactics. See Mealey’s Personal Injury Report, July 12, 2010.
A federal court in California has dismissed a putative class action alleging that consumers were misled into believing that Cap’n Crunch’s Crunch Berries® cereal contained real berries or fruit. Werberl v. PepsiCo, Inc., No. 09-04456 (N.D. Cal., decided July 1, 2010). Noting that one law firm had filed unsuccessful suits in two other California federal district courts on behalf of two other class representatives, the court observed that the claims before it were “virtually identical.” Additional information about the dismissal of one of the other cases appears in issue 306 of this Update. According to the court, “no reasonable consumer would believe that Cap’n Crunch derives any nutritional value from berries” and any reliance on the use of the term “crunch berries” to imply “that real berries or fruit are contained in the cereal would neither be reasonable nor justifiable.” The court also found that leave to amend was unwarranted…
California EPA’s Office of Environmental Health Hazard Assessment has issued a notice indicating that it has proposed adding the qualifier “oral” to the maximum allowable dose level (MADL) for cadmium. Apparently, this qualifier was inadvertently omitted when the MADL of 4.1 micrograms per day was adopted under Proposition 65 (Prop. 65) in 2002. Comments must be submitted no later than August 23, 2010. Cadmium has apparently been used as a plasticizer, and some studies have indicated that it can be transferred to food by its use in fertilizer.
A federal court in California has denied defendant’s motion to dismiss a putative class action alleging that the company deceived the public by promoting and labeling its reformulated microwave popcorn as containing “No Added Diacetyl.” Fine v. ConAgra Foods, Inc., No. 10 01848 (D.C. Cal., order entered June 29, 2010). According to the plaintiff, she relied on defendant’s claims about “no added diacetyl” when purchasing its products, yet the popcorn still contains diacetyl. Accepting the plaintiff’s allegations as true for the purpose of ruling on the motion, the court noted that while plaintiff does not have “direct knowledge of the presence of diacetyl in Defendant’s products, Plaintiff relies on the work and statements of several health experts and alleges that ‘[k]nown “substitutes” for diacetyl still contain molecules of diacetyl.’” The defendant sought to dismiss the claims on the grounds that the plaintiff did not allege a cognizable injury and thus lacks…
