A New York state court has granted a motion for summary judgment and dismissed libel claims filed against Fox Television Stations Inc. by a D’Lites ice cream seller. Prince v. Fox Television Stations Inc., No. 107129/2011 (N.Y. S. Ct., order entered May 6, 2014). Matthew Prince filed a libel suit against Fox after a local channel in New York aired a report claiming that the low-calorie ice cream sold in the D’Lites stores Prince would soon be opening in the area contained more than three times as many calories, carbohydrates, total fat, and sugar than the amounts the chain advertised—for example, 148 calories rather than the advertised 50. The court rejected Fox’s argument that its report had not sufficiently identified Prince, despite that the reporters only visited stores that Prince did not own and the report briefly showed a screenshot of the D’Lites website listing what cities would soon have…
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Ice cream truck franchiser Mister Softee Inc. has filed a motion for a preliminary injunction in a lawsuit alleging trademark infringement and violation of a non-compete covenant against former franchisee Dimitrios Tsirkos, who converted his 16 Mister Softee trucks to Master Softee trucks and began selling his own ice cream out of them at the beginning of the 2014 ice cream truck season. Mister Softee of Queens Inc. v. Tsirkos, No. 14-1975 (S.D.N.Y., motion filed April 25, 2014). Mister Softee ended Tsirkos’ franchise contract after he refused to pay $74,000 in franchise royalties for his trucks, but Tsirkos allegedly adjusted the logo on his trucks, started his own soft-serve depot and began selling ice cream in New York City anyway. Tsirkos has filed a motion opposing the injunction, and a hearing is set for May 15, 2014. See Law360, May 2, 2014. See New York Daily News, May 1, 2014. …
A federal court in California has denied the plaintiff’s motion for class certification in a suit alleging that Ben & Jerry’s Homemade deceives consumers by using “all natural” on labels for ice cream, frozen yogurt and popsicle products that contain alkalized cocoa. Astiana v. Ben & Jerry’s Homemade, Inc., No. 10-4387 (N.D. Cal., decided January 7, 2014). Additional details about the lawsuit appear in Issue 366 of this Update. The action followed the court’s September 2012 denial of final approval for a class-action settlement in the case on the basis of issues raised by Dennis v. Kellogg, 697 F.3d 858 (9th Cir. 2012). Among other matters, the court agreed with the defendant that the plaintiff failed to establish that the class was ascertainable and that common issues predominate over individual issues. While the case was initially brought on behalf of a nationwide class of consumers, in its current posture, a…
Mafrash Attias has reportedly filed a putative class action against McDonald Israel alleging that the company cheats consumers by putting less ice cream into its ice cream cups. According to the complaint, Attias found that the contents of two sizes of the company’s “Ice Blast” product, with an NIS 2 shekel price (US 50 cents) difference, are nearly always barely distinguishable in weight or volume. He has also apparently alleged that the large size sometimes holds less ice cream than the less expensive smaller alternative and that the McDonald’s marketing pitch is to encourage customers to “size-up” for “only” 2 additional shekels. The named plaintiff reportedly submitted samples from several McDonald’s stores to the independent, Jerusalem-based Forensic Science Institute for testing. According to a news source, its report is attached to the complaint. The plaintiff seeks NIS 24.5 million (about US $7 million). See Jewish Business News, December 9, 2013…
A federal court has dismissed without prejudice the first amended complaint filed in a putative class action alleging that Weight Watchers International misleads consumers by misrepresenting the number of calories in its line of diet ice cream bars. Burke v. Weight Watchers Int’l, Inc., No. 12-6742 (D.N.J., decided October 17, 2013). While the court held that it was premature to decide whether the plaintiff had standing to bring claims as to diet bars she did not purchase, persuaded by other courts that this was more properly decided at the class certification stage, it agreed with the defendants that the state law-based claims were preempted. The Food and Drug Administration has set forth the five methods that can be used to calculate the total number of calories in a food product labeled with that information. In the court’s view, “Burke’s claims are preempted because she has failed to plead two separate…
Austin-based Amy’s Ice Creams has reportedly filed a trademark infringement lawsuit in a federal district court against Amy’s Kitchen, which makes frozen lunch and dinner entrées with organic and non-genetically modified ingredients. While the two companies have apparently co existed without difficulty for more than 20 years, Amy’s Ice Creams, now with 15 shops throughout Texas, claims that it recently learned about the frozen food company’s plan to launch a line of frozen treats. Amy’s Kitchen is based in California, and its products are sold nationally. Ice cream company founder Amy Simmons reportedly said, “We don’t want them to go into ice cream because there will be obvious confusion.” According to the complaint, the confusion would not be limited to Texas consumers, as the ice cream company “is well known beyond the state. The success of Amy’s [Ice Creams] has been featured in such publications as Inc., Southern Living, Wall…
A federal court in California has issued a tentative rejection of a settlement reached in a putative class action alleging that Ben & Jerry’s Homemade Inc. falsely claims that its ice cream is all natural despite containing genetically modified ingredients. Tobin v. Conopco Inc., No. 12-5881 (N.D. Cal., notice filed April 15, 2013). The court’s notice of tentative ruling also raises questions for hearing including (i) “what is the parties’ best argument that venue is proper in this district,” (ii) are the plaintiff’s claims typical of the class claims in light of the defendants’ contention that she lacks standing to bring her claims under the New Jersey Consumer Fraud Act, (iii) is the parties’ proposed notice the best practicable, (iv) do the proposed cy pres charities have any nexus to the claims, and (iv) is it appropriate to reduce the funds available for settlement purposes to cover fees and administrative…
The day after a California court apparently refused to approve the settlement of class claims against the company that makes “All Natural Ben & Jerry’s Ice Cream,” an Illinois resident filed a putative class action against the company in a New Jersey federal court, alleging that the product contains many unnatural ingredients including those that are genetically modified. Tobin v. Conopco, Inc., No. 12-5881 (D.N.J., filed September 13, 2012). The named plaintiff seeks to represent a nationwide class of individuals who purchased the products since 2006 relying on the allegedly false “all natural” label. According to the complaint, the Center for Science in the Public Interest (CSPI) tested the company’s products in 2010 and found that they contain “alkalized cocoa, corn syrup, partially hydrogenated soybean oil, or other ingredients that either don’t exist in nature or that have been chemically modified.” CSPI’s letter to the manufacturer, claiming that the products…
A California resident has filed a putative nationwide class action against a company that makes low-calorie frozen desserts, alleging that they do not, as advertised, contain just “150 calories per pint.” Michelle v. Arctic Zero, Inc., No. ___ (S.D. Cal., filed August 21, 2012). According to the complaint, Arctic Zero’s Vanilla Maple dessert “has 46% more calories than the 150 calories advertised on the product packaging and reflected on the nutritional label” and the company’s “Chocolate Peanut Butter has 68% more calories than the 150 calories advertised.” Claiming that she would not have purchased the products had she not been misled, the plaintiff alleges violations of California’s Unfair Competition Law (unlawful, unfair and fraudulent conduct), False Advertising Law and Consumers Legal Remedies Act, as well as unjust enrichment. She seeks preliminary and permanent injunctive relief; corrective disclosures; compensatory, consequential, statutory, exemplary, treble, and punitive damages; restitution; attorney’s fees; costs; and…
While a federal court in California has dismissed warranty claims filed under federal law against an ice cream manufacturer sued for allegedly misleading consumers by labeling its products with the phrases “All Natural Flavors” and “All Natural Ice Cream,” most of the plaintiffs’ state law-based claims will proceed. Astiana v. Dreyer’s Grand Ice Cream, Inc., No. 11-2910; Rutledge-Muhs v. Dreyer’s Grand Ice Cream, Inc., No. 11-3164 (N.D. Cal., order entered July 20, 2012). The plaintiffs allege that Dreyer’s and Edy’s ice cream products should not bear labels stating “All Natural Flavors” because they contain between one and five artificial and/or synthetic ingredients, and the company’s Haagen-Dazs ice cream products should not bear labels stating “All Natural Ice Cream” because they contain cocoa processed using a synthetic and/or artificial alkalizing agent. They allege violation of written warranty under the Magnuson-Moss Warranty Act; common law fraud; unlawful, unfair and fraudulent business practices and false…
