A Florida-based import-export company has filed for Chapter 7 protection in bankruptcy court, listing more than $204 million in liabilities from litigation over its role in the import from China of powdered milk contaminated with melamine. In re Exim Brickell, LLC, No. 13-28502 (U.S. Bankruptcy Ct., S.D. Fla., filed August 3, 2013). Exim Brickell, LLC declared $300 in office furniture as its only asset. According to a news source, the 2008 tainted Chinese milk scandal, which affected hundreds of thousands of children in that country and killed six, resulted n verdicts and legal fees against the company as a result of litigation involving a Venezuelan company that recently won an appeal in their breach of contract dispute. See Law360, August 7, 2013. In a related development, a new milk contamination scandal has developed in China over whey protein concentrate potentially contaminated with the C. botulinum bacterium. The dairy farm near…
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Two California residents who filed a putative class action in a California federal court against, among others, a company that makes “Horizon,” “Silk,” “International Delight,” and “Land O’Lakes” brand products with labels including as an ingredient “evaporated cane juice” in alleged violation of Food and Drug Administration (FDA) requirements, have filed a complaint in intervention and motions to set aside a nationwide class settlement approved by a federal court in Florida. Singer v. WWF Operating Co., No. 13-21232 (S.D. Fla., filed July 12, 2013). According to the California plaintiffs, the Florida action was filed on April 8, 2013, as a statewide putative class action and then amended nine days later for purposes of securing preliminary approval of a nationwide class settlement. The California plaintiffs filed their putative statewide class action on April 29 and allege that they had extensive communications with defendant’s counsel who requested from them a 30-day extension…
A federal court in Florida has determined that a putative statewide class is not preempted under federal law from claiming that the presence of genetically modified (GM) corn in Campbell Soup Co. vegetable soups renders its “100% Natural” labeling representations false. Krzykwa v. Campbell Soup Co., No. 12-62058 (S.D. Fla., order entered May 24, 2013). The court also refused to dismiss the claims under the primary jurisdiction doctrine. In the original complaint, the plaintiff alleged that he purchased two soup products with GM corn. Their labels had been pre-approved by the U.S. Department of Agriculture (USDA) because they also contained chicken and the agency has pre-approval authority as to these products. Campbell argued that USDA’s seal of approval preempted state law-based labeling-related claims. Later complaint amendments changed the products at issue to vegetarian soups whose labels are under the Food and Drug Administration’s (FDA’s) regulatory purview and do not require pre-approval.…
A company that makes and sells a proprietary blend of purported “wellness” herbs as part of its line of gourmet coffee, teas and hot chocolates has sued one of its former independent business owners/operators (IBOs) alleging, among other matters, disparagement, breach of a confidential performance agreement and non-competition clause, and the misappropriation of trade secrets. SereniGy Global, Inc. v. Mendoza, No. 13-08243CA04 (Fla. Cir. Ct., 11th Cir., Dade Cty., filed March 6, 2013). According to the complaint, the company relies on a network of IBOs to market and advertise its products and signed a performance agreement with the defendant to do so in March 2012. By October, the company allegedly “received information that Defendant had been making slanderous, derogatory and disparaging remarks about Plaintiff and its CEO in violation” of the agreement, was “divulging confidential information to a third-party,” and “had been disloyal and involved in moral turpitude by advising…
A Florida resident has filed a putative statewide class action alleging that Frito-Lay falsely labels its snacks, including “Bean Dip products,” as “ALL NATURAL” despite the use of ingredients—particularly soy—containing genetically modified organisms (GMOs). Altman v. Frito-Lay N. Am., Inc., No. 12-61803 (S.D. Fla., filed September 13, 2012). The gist of the complaint is that products containing GMOs should not be labeled “all natural” unless they also disclose that the products contain GMOs. The plaintiff contends that she would not have purchased the company’s bean dip if she had known the company “could not support its claim that the Product is all natural.” Seeking to represent a class of Florida consumers who purchased Frito-Lay “All Natural” products over the past four years, the plaintiff alleges violations of the state’s Deceptive and Unfair Trade Practices Act and unjust enrichment. She requests injunctive relief, restitution, actual damages, punitive damages, attorney’s fees, costs,…
While a federal court in Florida has dismissed a putative class action alleging that Target Corp. violates consumer fraud laws by selling honey that does not conform to the state’s honey standard, it gave the plaintiff leave to amend the complaint and also found that (i) the plaintiff had standing to bring the claims, (ii) Federal Rule of Civil Procedure 9(b)’s heightened pleading standard did not apply, and (iii) the claims were not preempted by federal law. Guerrero v. Target Corp., No. 12-21115 (S.D. Fla., decided September 4, 2012). The court dismissed the complaint without prejudice because it failed “to provide any more specific details regarding how Plaintiff knows that Defendant’s honey did not contain pollen. Thus, the Court agrees with Defendant’s argument that Plaintiff’s Complaint, as currently plead (sic), fails to state a claim because it does not provide fair notice to Defendant regarding the factual basis for Plaintiff’s…
A federal court in Florida has denied the Federal Trade Commission’s (FTC’s) request that it modify a stipulated final order resolving a 2006 dispute with Garden of Life, Inc. over purportedly unsubstantiated representations that its products could treat a range of serious diseases and their symptoms. FTC v. Garden of Life, Inc., No. 06-80226 (S.D. Fla., filed May 25, 2012). The parties had agreed that the company could make such claims if supported by “competent and reliable scientific evidence,” defined in the stipulated final order as “tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that has been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.” Claiming that the company was continuing to deceive consumers and that “the Stipulated Final Order has failed to…
A Florida resident has filed a complaint on behalf of a nationwide class of consumers against Frito-Lay, alleging that it sells the company’s snack foods, such as Tostitos® chips, Sunchips® and bean dip, as “All Natural” without disclosing that they contain genetically modified organisms (GMOs). Foust v. Frito-Lay N. Am., Inc., No. 12-21975 (S.D. Fla., filed May 25, 2012). According to the complaint, “The Product poses a potential threat to consumers because medical research and scientific studies have yet to determine the long-term health effects of genetically engineered foods. Recent studies suggest that GMOs may in fact be harmful to a consumer’s health.” Still, the plaintiff does not allege personal injury, claiming instead that he would not have purchased the product “if he had known that the Defendant could not support their [sic] claim that the Product is all natural because it contains GMOs.” In this regard, the plaintiff notes that…
A Pennsylvania resident has filed a putative class action in a Florida federal court seeking to represent Florida and multistate classes of consumers allegedly misled by claims that Tropicana orange juice products are “pure” and “natural.” Pederson v. PepsiCo, No. 12-00104 (M.D. Fla., filed January 18, 2012). Similar to lawsuits already filed in New Jersey and California, this complaint alleges that Tropicana branded fruit juices are extensively processed and flavored for mass-marketing purposes. Additional information about the other lawsuits appears in Issue 422 of this Update. According to the complaint, “Defendants heavily process Tropicana Orange Juice by pasteurizing, de-aerating, and storing it for long periods of time at a ‘tank farm’ and under a nitrogen blanket, which strips the juice of its flavor and aroma. Defendants then re-flavor the product with chemical ‘flavor packets’ before it is packaged into a carton and sold to the consumer.” Alleging violations of the Florida…
A federal court in Florida has redefined a plaintiffs’ class in deceptive advertising litigation against the company that claims its Yo-Plus® yogurt provides digestive health benefits. Fitzpatrick v. General Mills, Inc., No. 09-60412 (S.D. Fla., order entered December 2, 2011). While the Eleventh Circuit Court of Appeals upheld the class certification decision, it remanded the case for the lower court to redefine the class to omit any reference to plaintiffs’ reliance on company claims, which reliance need not be proved under the Florida Deceptive and Unfair Trade Practices Act. Additional information about the Eleventh Circuit ruling appears in Issue 388 of this Update. The class will now be defined as “all persons who purchased Yo-Plus in the State of Florida until the date notice is first provided to the class.”
