Skinnygirl Cocktails, LLC and a consumer have filed a joint stipulation of dismissal in a lawsuit alleging that the company and its reality-TV star founder, Bethenny Frankel, mislabeled its Margarita cocktail as “natural” despite containing the preservative sodium benzoate. Langendorf v. Skinnygirl Cocktails, LLC, No. 11-7060 (N.D. Ill., joint stipulation of voluntary dismissal with prejudice filed May 5, 2015). The joint stipulation comes after the court refused to certify the class in October 2014, finding that the plaintiff failed to show that the class was ascertainable and that the plaintiff was not a suitable representative for the class due to a personal relationship with her counsel. The stipulation does not indicate whether the parties reached a settlement. Additional information about the denial of class certification appears in Issue 544 of this Update. Issue 564
Tag Archives Illinois
Saeilo Enterprises Inc., and Alphonse Capone Enterprises Inc., have reportedly reached a settlement in a lawsuit alleging trademark and trade dress infringement for a bottle of vodka branded as “Tommy Guns Vodka” and shaped like Saeilo’s Thompson submachine gun. Saeilo Enterprises, Inc. v. Alphonse Capone Enterprises, Inc., No. 13-2306 (N.D. Ill., notification of docket entry filed April 21, 2015). The gun manufacturer alleged in its complaint that the vodka company misappropriated the trade dress and trademark of the Thompson gun with the shape of the bottle and the name, and Saeilo sought an injunction, damages and attorney’s fees. A notice filed with the court indicates that the parties have reached a settlement and will file a stipulation to dismiss, but terms of the settlement were unavailable. Issue 562
An Illinois federal court has dismissed a lawsuit alleging that Kind misleadingly labeled its Vanilla Blueberry Clusters as having “no refined sugars” despite containing evaporated cane juice (ECJ) and molasses. Ibarrola v. Kind, LLC, No. 12-50377 (N.D. Ill., order entered March 12, 2015). The plaintiff had alleged that ECJ and molasses result from refining sugar cane—albeit less refining than what is required to produce table sugar—and as a result, the label’s claim of “no refined sugar” was fraudulent, breached an express warranty and violated the state’s consumer-protection law. The court found the plaintiff’s claim that she read the entire package, including the ingredients list, before purchasing the product contradicted her claim that she did not understand that the product contained partially refined sugars, noting that courts “have dismissed complaints premised on such logical inconsistencies.” The court also compared what she claimed to believe to what a reasonable consumer would believe upon…
An Illinois federal court has dismissed with prejudice a suit brought by two purported heirs of Anna Short Harrington, the woman who portrayed Aunt Jemima from 1935 to the 1950s, against PepsiCo Inc., The Quaker Oats Co., Pinnacle Foods Group, and The Hillshire Brands Co. Hunter v. PepsiCo Inc., No. 14-6011 (U.S. Dist. Ct., N.D. Ill., order entered February 18, 2015). Harrington served as the face of the Aunt Jemima brand in commercials and public appearances for more than a decade pursuant to a contract which allegedly provided that she would receive a percentage of the proceeds and royalties for the use of her image. The plaintiffs brought 15 causes of action against the food companies, including deprivation of the right of publicity, breach of contract and violation of the International Convention on the Elimination of all Forms of Racial Discrimination. In the complaint, the plaintiffs asserted that they were…
An Arizona resident has filed a putative class action in an Illinois federal court claiming that Jimmy John’s Franchise, LLC failed to secure its customers’ personal and financial data, which were purportedly accessed through the company’s point-of-sale systems at some 216 restaurant locations, between June and September 2014. Irwin v. Jimmy John’s Franchise, LLC, No. 14-2275 (C.D. Ill., filed November 6, 2014). While the named plaintiff alleges that access to her credit card information led to “five fraudulent charges to the credit card that she used during the aforesaid transactions at Jimmy John’s,” she seeks to represent 39 separate statewide classes and a District of Columbia class of all those who used a debit or credit card at Jimmy John’s during the data breach regardless of whether they actually experienced a loss or identity theft. The plaintiff alleges that Jimmy John’s failed to promptly discover and block the data breach,…
According to a news source, New Jersey residents have filed a putative class action in state court against the Texas-based company that makes Tito’s Handmade Vodka®, the fourth such action filed within the past two months, alleging that promoting and labeling the product as “handmade” deceives consumers because the vodka is made in an industrial facility and the company sells more than 15 million bottles a year. McBrearty v. Fifth Generation, Inc. The first complaint was filed in California in September 2014 and subsequently removed to federal court, Hofmann v. Fifth Generation, Inc.; the second followed in early October in an Illinois state court, Aliano v. Fifth Dimension, Inc.; the third was filed in a Florida federal court, Pye v. Fifth Generation, Inc. The complaints variously refer to the company’s website and a Forbes article purportedly featuring images of old-time pot-still production (“i.e., in a shack containing a pot still…
An Illinois federal court has declined to certify a class in a lawsuit alleging that Skinnygirl Margarita, a pre-mixed alcohol beverage sold by Skinnygirl Cocktails, and its founder, Bethenny Frankel of reality show "The Real Housewives of New York City" and talk show "Bethenny," was labeled as “all natural” despite containing the non-natural preservative sodium benzoate. Langendorf v. Skinnygirl Cocktails, LLC, No. 11-7060 (N.D. Ill., order entered October 30, 2014). The plaintiff sought to represent a class of all consumers who purchased Skinnygirl Margarita spirits in Illinois after March 1, 2009, but the court identified several shortcomings with the proposed class. First, the court found that the plaintiff failed to offer a valid method to identify the purchasers. “Plaintiff says class membership can be verified by the dates of purchase, the locations of retail establishments, the frequency of purchases, the quantity of purchases, and the cost of purchase, but does not…
A federal court in Illinois has dismissed without prejudice a putative class action alleging consumer fraud against a company that makes snacks which list evaporated cane juice (ECJ) as an ingredient. Ibarrola v. Kind, LLC, No. 13-50377 (N.D. Ill., order entered July 14, 2014). The court declined to address whether the plaintiff had standing to assert claims as to products she had not purchased because class issues such as adequacy and typicality had not yet been briefed and further declined to consider dismissing the complaint under the primary jurisdiction doctrine, noting that the U.S. Supreme Court may have called this rationale into question in POM Wonderful LLC v. Coca-Cola Co., No. 12-761, 2014 WL 2608859 (June 12, 2014). The court dismissed the entire complaint, however, because it failed “to plausibly and adequately alleged that [the plaintiff] was deceived by Kind’s representations.” She did not apparently “explain how she was deceived, or…
A Papa John’s customer has filed a putative class action against the pizza company in Illinois state court, alleging that the chain illegally charges sales tax on delivery fees, resulting in each delivery customer overpaying by $0.16. Zucker v. Papa John’s Int’l, Inc, No. 14-668 (Madison Cty. Ct., filed May 5, 2014). Zachary Tucker argues that Illinois sales tax may be imposed only on the total sales price of tangible property, excluding the delivery fee, so long as the actual cost of delivery is less than the amount of the delivery fee. As a result, the complaint alleges, Papa John’s has violated and continues to violate the Uniform Deceptive Trade Practices Act (UDTPA), an Illinois consumer protection statute. In addition to class certification, Tucker seeks a cease-and-desist ruling to prevent Papa John’s from continuing to charge sales tax on delivery fees in Illinois, as well as damages for negligence, breach of…
The Chicago City Council has reportedly passed, 36-10, a ban on plastic bags at chain stores (i.e., at least three locations with the same owner) beginning in August 2015 for those larger than 10,000 square feet and August 2016 for smaller establishments. The prohibition follows several months of debate on the measure, with environmental advocates contending that the ban will reduce the number of bags littering the city and store owners arguing that more expensive paper bags will lead to higher prices. See Chicago Tribune, April 30, 2014. Issue 522
