Whole Foods and a consumer have reached an agreement in a lawsuit alleging the company misrepresented the prices of its products before the point of purchase. Burgos v. Whole Foods Mkt. Grp., No. 15-7357 (D.N.J., stipulation filed January 20, 2016). The plaintiff alleged that some of Whole Foods’ price displays failed to meet the state’s requirements, which she argued amounted to violations of New Jersey’s consumer-protection statute. The stipulation specifies that the individual plaintiff’s claims are dismissed with prejudice, but the plaintiff’s proposed class is not bound to the terms of the agreement. Issue 591
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A California federal court has dismissed a lawsuit against Costco Wholesale Corp. alleging the company’s shrimp was falsely advertised as adherent to a supplier code of conduct on human rights while the product was allegedly obtained through the use of slave labor. Sud v. Costco Wholesale Corp., No. 15-3783 (N.D. Cal., order entered January 15, 2016). The plaintiff argued that she was harmed because she purchased shrimp relying on Costco’s misrepresentation; the court disagreed after Costco provided records of the plaintiff’s and her mother’s purchases, which the company tracks through its membership program. Accordingly the court granted Costco’s motion to dismiss but allowed the plaintiff leave to amend. Details about the August 2015 complaint appear in Issue 576 of this Update. Issue 591
Three major grocers—Albertsons Companies, Hy-Vee and The Kroger Co.—have reportedly filed a lawsuit against three tuna companies alleging they conspired to fix prices of canned tuna. The companies join other grocers and consumers in pursuing damages from Tri-Union Seafoods, Starkist and Bumble Bee Foods for alleged price fixing, a practice the plaintiffs argue began in 2008 and continued until July 2015. See Undercurrent News, January 11, 2016. Details about lawsuits by other grocers appear in Issue 574 of this Update, while information about the consolidation of the suits by the U.S. Judicial Panel on Multidistrict Litigation appears in Issue 588. Issue 590
A consumer has filed a proposed class action against Trader Joe’s Co. alleging the company sells 5-ounce cans of store-brand tuna filled with only 3 ounces of product. Magier v. Trader Joe’s Co., No. 16-0043 (S.D.N.Y., filed January 5, 2016). According to the complaint, “Independent testing by the U.S. National Oceanic and Atmospheric Administration (NOAA) determined that, over a sample of 24 cans, 5-ounce cans of Trader Joe’s Albacore Tuna in Water Salt Added contain an average of only 2.61 ounces of pressed cake tuna when measured precisely according to the methods specified by [the federal statute].” The complaint further alleges similar NOAA test results for six other Trader Joe’s tuna products, amounting to breach of warranties, unjust enrichment, negligent misrepresentation, fraud and violations of New York’s consumer-protection statute. The plaintiff seeks class certification, declaratory judgment, compensatory and punitive damages, an injunction, attorney’s fees and a jury trial. Issue…
A California federal court has dismissed a lawsuit against Trader Joe’s Co. alleging the retailer’s soy milk is mislabeled because it does not contain cow’s milk, which the plaintiffs argued amounts to a violation of the federal Food, Drug, and Cosmetic Act and California’s consumer protection statute. Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., order entered December 1, 2015). “Often in food labeling cases,” the court noted, “courts jump straight to the question of whether a plaintiff may state a claim under California’s Unfair Competition Law. But there is a threshold question.” The court explained that questions related to food labeling must be considered in the context of the federal Food, Drug, and Cosmetic Act because “if the alleged conduct would not violate the federal statute, it doesn’t matter whether the plaintiff could pursue a state law claim based on that conduct. If a food label does not…
Safeway Inc. will pay $41.9 million to customers who ordered groceries online and were charged a 10 percent markup on the items they ordered compared to the prices charged in-store, a court has confirmed. Rodman v. Safeway Inc., No. 11-3003 (N.D. Cal., order entered November 30, 2015). A California federal court approved the settlement amount of $31 million in damages and $10.9 million in prejudgment interest. Additional details about the case appear in Issues 549 and 577 of this Update. Issue 587
Pepperidge Farm, maker of Milano® cookies, has filed a trademark infringement lawsuit against Trader Joe’s Co. alleging the retailer’s Crispy Cookies emulate the shape and configuration of Milano® cookies. Pepperidge Farm, Inc. v. Trader Joe’s Co., No. 15-1774 (D. Conn., filed December 2, 2015). In addition to the similarity between the cookie products, Pepperidge Farm alleges that the packaging of Crispy Cookies is similar as well. Although Crispy Cookies packaging depicts the cookies in a fluted paper tray—as Milano® cookies are sold—Trader Joe’s actually packages the cookies in a plastic tray inside the external packaging. Pepperidge Farm cites Google search results for “‘Trader Joe’s,’ ‘cookie’ and ‘Milano’” as evidence that consumers have also noted the similarities between the two products. Pepperidge Farm seeks declarations of infringement, permanent injunctions, damages and attorney’s fees. Issue 586
Two consumers have filed a putative class action alleging that two lines of kombucha manufactured by Millennium Products and sold by Whole Foods Market contain several defects, including levels of alcohol higher than the label represents and packaging inadequate to properly accommodate the product’s secondary fermentation. Pedro v. Millennium Prods., Inc., No. 15-5253 (N.D. Cal., filed November 17, 2015). Millennium’s kombucha, a fermented tea product, is sold in two lines—a “Classic” line requiring the purchaser to be 21 years old and an “Enlightened” line containing “a trace amount of alcohol” but insufficient amounts to require identification upon purchase (less than 0.05 percent alcohol by volume). The plaintiffs allege that both lines contain more alcohol than the label indicates, which allegedly caused one plaintiff to become sick and experience “among other things, trouble breathing, and increased heart rate.” The plaintiffs further allege the byproduct of kombucha’s fermentation, carbon dioxide, builds up…
A California consumer has filed a putative class action against Safeway Inc. alleging the grocery retailer’s tuna cans are under-filled by 10 to 20 percent based on federally mandated fill standards. Soto v. Safeway Inc., No. 15-5078 (N.D. Cal., filed November 5, 2015). The plaintiff contends that U.S. National Oceanic and Atmospheric Administration (NOAA) testing indicates Safeway’s 5-ounce tuna cans contain an average of 2.29 ounces of pressed cake tuna despite federal standards requiring cans of that size to contain at least 2.84 ounces of product. This result was consistent across 97.9 percent (94 of 96) of the tuna cans analyzed, according to the complaint. The plaintiff alleges breach of warranties, fraud, unjust enrichment, negligent misrepresentation and violations of California’s consumer protection statutes, and he seeks class certification, compensatory and punitive damages, an injunction and attorney’s fees. Issue 584
Whole Foods Market, Inc. and video publisher The Criterion Collection have filed a notice of voluntary dismissal in a trademark dispute over Whole Foods' "Criterion Collection" line of wines. The Criterion Collection v. Whole Foods Mkt., Inc., No. 15-7132 (S.D.N.Y., notice filed October 28, 2015). The parties note that matters have been "amicably settled and adjusted between the parties" and voluntarily dismiss the case with prejudice and without costs to either party. Terms of the settlement were not disclosed. The September 2015 lawsuit alleged that Whole Foods infringed Criterion's trademarked name for a line of republished classic movies. Additional details appear in Issue 578 of this Update. Issue 583
