A federal court in Florida has dismissed with prejudice most of the claims asserted in a putative class action alleging that “percent fat free” labels on the packages of deli meats are misleading and deceptive. Kuenzig v. Kraft Foods, Inc., No. 11-838 (Tampa Div., decided September 12, 2011). Additional information about the case appears in Issue 391 of this Update. The court found all but one of the plaintiff’s claims preempted by federal food-labeling law and also found that all but one of his claims failed to state a claim because they were frivolous or disingenuous. As to defendant Hormel Foods Corp., the plaintiff had alleged that while the company’s labels do not indicate the number of calories per serving next to the “percent fat free” claim on the front of its product packaging, the labels are “somehow misleading by association, since Hormel’s products are on grocery shelves next to Kraft’s products.”…
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Two putative class actions alleging that companies making and selling extra virgin olive oil (EVOO) sell their products at a premium despite their failure to meet certain EVOO standards have been dismissed by a federal court in Florida because the plaintiffs did not adequately plead their claims under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Meyer v. Colavita USA, Inc., No. 10-61781, Nachio v. Am. Rice Inc., No. 10-61793 (S.D. Fla., decided September 13, 2011). The defendants claimed in their motions to dismiss that the complaints were based on a flawed UC Davis study that analyzed a small sample of olive oil purchased in California and that the plaintiffs failed to either allege that the products they purchased were not EVOO as the companies claimed or that they had been harmed. The court agreed that the UC Davis results were…
A federal court in Florida has dismissed without prejudice two putative class actions against Kraft Foods alleging that the packaging for its Oscar Mayer® deli meat products misleads consumers about their actual fat content. McDougal v. Kraft Foods, Inc., No. 11-61202; Rogel v. Kraft Foods, Inc., No. 11-61281 (S.D. Fla., decided June 23, 2011). The plaintiffs filed voluntary dismissal notices in the cases, one of which is discussed in Issue 396 of this Update. A company spokesperson reportedly indicated when the McDougal complaint was filed that the allegations were unfounded. See Law360, June 23, 2011.
A federal judge in Florida has reportedly granted a motion for permanent injunction in a trademark infringement case involving two “never-ending” restaurant promotions. According to media sources, Darden Concepts Inc., which owns Olive Garden and Red Lobster, filed an October 2010 complaint alleging that a TGI Friday Inc. franchisee with outlets in seven states had infringed on its “never-ending pasta” and “all you can eat” shrimp slogans by advertising a “never-ending shrimp” deal. Under terms of the settlement, TGI Friday’s must halt its “never-ending” promotion, which evidently ran as 630 TV spots in anticipation of a national campaign. See Law360, June 6, 2011.
According to a news source, a Florida resident has filed a putative class action against Kraft Foods Global, Inc., alleging that the packaging for its Oscar Mayer® deli meat products misleads consumers by declaring the meat to be 98 percent fat free, with 50 calories per serving. McDougal v. Kraft Foods, Inc., No. 11-61202 (S.D. Fla., filed May 23, 2011). The plaintiff contends that consumers are misled to believe that just 2 percent of the 50 calories come from fat, when 20 percent of the calories per serving actually come from fat. Seeking to certify statewide and nationwide classes, the plaintiff alleges violation of consumer protection laws, breach of express warranty and unjust enrichment. The complaint is similar to one filed in a different federal district in Florida in April. Additional details about that lawsuit appear in Issue 391 of this Update. See Law360, May 24, 2011.
A Florida resident has alleged in a putative class action that Kraft Foods and Hormel Foods deceive the public by selling their prepackaged retail sandwich meat products in a way that suggests they contain far less fat than they actually do. Kuenzig v. Kraft Foods, Inc., No. 11-00838 (M.D. Fla., filed April 18, 2011). The companies allegedly state on their product labels that the sliced ham, turkey and other deli-style meats are 95, 96, 97, or 98 percent fat-free and juxtapose this information with a calorie count per serving. According to the plaintiff, this leads consumers to believe that of the 50 calories in a serving, for example, less than 5 percent comes from fat. Because the products could actually derive one-half of their calories from fat, the plaintiff contends that health-conscious consumers “will continue to be surprised to learn that Products they’ve purchased—and perhaps have repurchased for years—are about ten…
A Florida court has reportedly denied the motion to dismiss filed by organic and natural foods grocery chain Whole Foods Market in a case alleging that the company sold frozen vegetables harvested in a polluted area by the forced labor of Chinese prisoners. Se. Consumer Alliance Inc. v. Whole Foods Market Group Inc., No. 2009-92727-CA-01 (Fla. Cir. Ct., 11th Cir.) decided April 20, 2011). The company purportedly certifies and sells the vegetables as organic. The plaintiffs, who are apparently seeking a declaration that the company violated deceptive marketing law, have twice amended their complaint to bring new claims, including deceptive trade practices and false advertising. Plaintiffs’ counsel Bruce Baldwin was quoted as saying, “They’re the biggest organic retailer in America with the biggest certifier in China working for them. They knew, but they kept selling the Chinese frozen vegetables as if there was no problem at all.” See Law360, April 21,…
Finding that the class definition approved by the district court was inconsistent with its analysis of the class certification requirements, the Eleventh Circuit Court of Appeals has returned litigation over the purportedly misleading digestive health claims for YoPlus yogurt to a district court in Florida. Fitzpatrick v. General Mills, Inc., No. 10-11064 (11th Cir., decided March 25, 2011). Additional information about the case appears in Issue 296 of this Update. When it decided to grant the plaintiffs’ motion for class certification, the district court apparently defined the class as “all persons who purchased YoPlus in the State of Florida to obtain its claimed digestive health benefit.” The defendant challenged this definition on the ground that it requires individualized fact-finding, and the court had specifically determined that common issues predominate over individualized issues. According to the appellate court, the district court “conducted a detailed analysis of the requirements necessary for a…
The Eleventh Circuit Court of Appeals has affirmed a district court ruling finding that a $97 million judgment entered by a Nicaraguan court to compensate 150 Nicaraguan agricultural workers for injuries allegedly caused by workplace exposure to a pesticide is unenforceable under Florida law. Osorio v. Dow Chem. Co., No. 10-11143 (11th Cir., decided March 25, 2011). The appellate court agreed that (i) “the Nicaraguan court lacked subject matter jurisdiction and/or personal jurisdiction over the defendants”; (ii) “the foreign judgment could not be recognized in Florida because the judgment was ‘rendered under a system which does not provide . . . procedures compatible with the requirements of due process of law’”; and (iii) “the Nicaraguan judgment could not be recognized under Florida law because doing so would be repugnant to Florida public policy.” The court declined to address whether Nicaragua “as a whole ‘does not provide impartial tribunals’” and also…
According to a news source, a prosecutor in Florida appears willing to accept an insanity defense in the case of a man who murdered his father while depressed, sleep-deprived and under the purported influence of an energy drink. A psychiatrist reportedly testified during a bond reduction hearing that defendant Stephen Coffeen, who allegedly smothered his father in 2009, suffered a “psychotic break” that was “accelerated by his use of Red Bull.” The defendant’s brother, Thomas Coffeen, is apparently skeptical about the defense, writing to the court, “since when is being tired, and high on an energy drink, an excuse for cold blooded murder, anyway?” The court has denied bond and set another hearing in the case for February 17, 2011. See St. Petersburg Times, February 7, 2011.
