The Florida attorney general has filed a lawsuit alleging Miami-based Icebox Cafe violated the state's Deceptive and Unfair Trade Practices Act by advertising its food and beverage items as locally sourced and "farm-to-table" while the ingredients were purchased from traditional commercial vendors. Office of the Attorney Gen. v. Icebox Cafe LC, No. __ (Fla. Cir. Ct., Miami-Dade Cty., filed May 4, 2018). The state alleges that Icebox Cafe "represented that it purchased products from specific Florida farms and suppliers when such was not the case." According to the complaint, Icebox Cafe's invoices indicate that most of its ingredients were purchased from commercial distributors while its advertising stated that its food was made from products purchased from a local farm and a local seafood distributor. The cafe also allegedly represented that its menu items contained wild salmon and same-day-caught fish, but its invoices did not show purchases of those items. Claiming deceptive representation,…
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Ruling that the jury instructions were misleading, the U.S. Court of Appeals for the Eleventh Circuit has reversed a jury verdict finding for a seafood restaurant in a lawsuit involving allegations of foodborne illness. Rhodes v. Lazy Flamingo 2 Inc., No. 17-11338 (M.D. Fla., entered March 29, 2018). The plaintiffs alleged negligence per se after one ate Lazy Flamingo's oysters, which were contaminated with Vibrio vulnificus and caused an illness requiring five days of hospitalization. A Florida regulation requires foodservice establishments serving raw oysters to display a health-risk warning on menus or table placards; the jury was instructed that it could consider the text of the regulation as well as a Florida foodservice industry bulletin indicating the warning “may be on menus, table placards, or elsewhere in plain view of all customers.” The appeals court found no evidence that the bulletin offered a "reasonable interpretation” of the regulation, reversed the verdict…
A Florida magistrate has recommended that a district court deny Chipotle Mexican Grill Inc.’s motion for $1.5 million in attorney’s fees and costs after the company was granted summary judgment against claims that its advertising misled consumers into believing its food products only contained ingredients free of genetically modified organisms (GMOs). Reilly v. Chipotle Mexican Grill, Inc., No. 15-23425 (S.D. Fla., report and recommendation filed January 26, 2018). Although Florida’s Deceptive and Unfair Trade Practices Act (FDUPTA) permits prevailing parties to recover costs and fees, the magistrate noted that the trial court has broad discretion to consider various factors, including: (i) the scope and history of the litigation; (ii) the ability of the non-prevailing party to satisfy an award; (iii) whether an award of fees would deter similar litigants; (iv) the merits of the respective positions; and (v) whether the claim was brought to resolve a significant legal issue. The…
The Eleventh Circuit has denied a petition for rehearing in a putative class action against Chipotle Mexican Grill alleging false advertising related to genetically modified organisms (GMOs). Reilly v. Chipotle Mexican Grill, Inc., No, 16-17461 (11th Cir., entered November 14, 2017). The appeals court previously denied the plaintiff’s appeal from the trial court’s entry of summary judgment. The plaintiff alleged that she stopped eating Chipotle's chicken burritos after learning from the company website that although the meat and dairy products it uses are not genetically modified, “most animal feed in the U.S. is genetically modified, which means that the meat and dairy served at Chipotle are likely to come from animals given at least some GMO feed.” She began eating at a different Mexican restaurant, where she paid more for a similar chicken burrito despite the restaurant not claiming its food was non-GMO. The district court ruled that the plaintiff…
After years of litigation over whether Florida should reimburse residents whose healthy citrus trees were cut down in an effort to eradicate citrus canker, the Florida Supreme Court has upheld Gov. Rick Scott's veto of $37.4 million appropriated by the state legislature that would have paid judgments to homeowners in two counties. Bogorff v. Scott, No. 17-1155 (Fla., order entered July 13, 2017). From 2000 to 2006, Florida attempted to eradicate citrus canker in the state, eventually chopping down more than 500,000 orange, grapefruit and key lime trees throughout the state located within 1,900 feet of an infected tree, even if the trees showed no signs of the disease. In May 2017, lawmakers budgeted funds to pay previous judgments awarded to homeowners in Lee and Broward counties, two of the five counties affected. Gov. Scott used a line-item veto to stop the budgeted payments; the Lee county plaintiffs then sought…
A complaint against the maker of Tabatchnick soups that alleged the company’s products could not be called “natural” because they contain genetically modified organisms (GMOs) has been voluntarily dismissed. Ramsaran v. Tabatchnick Fine Foods, Inc., No. 17-60794 (S.D. Fla., dismissed June 9, 2017). The plaintiff had argued that he relied on the company’s “all natural” representations when he bought the company’s prepackaged soups but later learned that they contain GMO soy, corn or canola. Additional details appear in Issue 632 of this Update. Issue 638
A Florida federal court has confirmed an arbitration tribunal's decision awarding $32 million to Del Monte International for Inversiones Y Procesadora Tropical Inprotsa's continued use of Del Monte pineapple seeds after the agreement permitting use had expired. Inversiones Y Procesadora Tropical Inprotsa v. Del Monte Int'l, No. 16-24275 (S.D. Fla., order entered May 1, 2017). Inprotsa argued that although it had stipulated "that Del Monte owned the MD2 pineapple variety," "it only stipulated to that fact because Del Monte had falsely represented that it owned the MD2 variety in letters to Costa Rican growers." In response, Del Monte pointed out that the arbitral tribunal "specifically held that the parties' agreement was not procured by fraud." The court found that Inprotsa did not argue "that the two-year arbitration process was fraudulent, that the arbitration tribunal acted fraudulently, or that the final award was procured by fraud." Rather, the company argued that…
A Florida plaintiff has filed a putative class action against the maker of Tabatchnick soups, alleging its products cannot be called “natural” because they contain genetically modified organisms (GMOs). Ramsaran v. Tabatchnick Fine Foods, Inc., No. 1760794 (S.D. Fla., filed April 24, 2017). The complaint asserts that 19 Tabatchnick soups labeled or advertised as “all natural,” containing “highest quality, natural ingredients,” actually contain GMO soy, corn, canola or their derivatives. The plaintiff alleges that GMOs, which have “undergone sophisticated bioengineering,” cannot be described as “minimally processed” or natural and are therefore artificial. For alleged violations of the Florida Deceptive and Unfair Trade Practices Act, negligent misrepresentation and breach of express and implied warranties, the plaintiff seeks declaratory judgment, class certification, injunctive relief, damages and attorney’s fees. Issue 632
A Florida federal court has dismissed part of a data breach complaint against Wendy’s, calling two of the claims “shotgun pleadings” and noting that the plaintiffs “misconstrue the basic legal principles of statutory law.” Torres v. Wendy’s Int’l, LLC, No. 16-0210 (M.D. Fla., order entered March 21, 2017). Additional details on the case appear in Issues 594 and 612 of this Update. The plaintiffs originally filed suit in February 2016 after a data breach of Wendy’s credit card payment system, but the Florida court dismissed the suit for failure to plead an injury sufficient to prove standing. Ruling on the amended complaint, the court found that the plaintiffs could establish standing based on “particularized, concrete injuries,” including late fees, loss of credit card reward points and loss of cashback awards. The court refused to dismiss a breach of implied contract count, reasoning that when a merchant invites a customer to…
The U.S. Court of Appeals for the Eleventh Circuit has overturned a Florida court's summary judgment against Ocheesee Creamery, finding that the company can sell its milk product as skim milk despite its refusal to follow a Florida law requiring skim milk to be fortified with vitamin A. Ocheesee Creamery LLC v. Putnam, No. 16-12049 (11th Cir., order entered March 20, 2017). Additional details on the lower court's rulings appear in Issues 555 and 599 of this Update. Florida initially told Ocheesee that it could sell its skim milk as "imitation skim milk," but Ocheesee objected to the description of its natural, unfortified milk as "imitation." Ocheesee rejected other suggested labels as well, including "Non-Grade 'A' Milk Product, Natural Milk Vitamins Removed," then filed a lawsuit asserting a First Amendment right to describe its product as "skim milk." The lower court granted summary judgment in favor of Florida, finding that…
