The owner of one of the largest commercial fishing businesses in the United States has pleaded guilty to conspiracy, falsifying federal records, cash smuggling and tax evasion in a case accusing him of deliberately misreporting the types of fish he caught to the National Oceanic and Atmospheric Administration (NOAA). U.S. v. Rafael, No. 16-10124 (D. Mass, plea entered March 30, 2017). Carlos Rafael, owner of Carlos Seafood, Inc. and known as the “Codfather,” will face possible forfeiture of his business assets and up to five years in prison at his June 2017 sentencing. An Internal Revenue Service (IRS) investigation apparently found that Rafael caught 800,000 pounds of fish over several years and reported it as haddock, pollock or other species with high NOAA quotas despite containing thousands of pounds of fish with lower quotas, including cod, flounder, grey sole, yellowtail and American plaice. Rafael also told IRS agents posing as…
Tag Archives Massachusetts
A Massachusetts federal court has dismissed a lawsuit alleging ACH Food Companies Inc. mislabeled its Weber® barbecue sauce as “All Natural” despite containing caramel coloring, finding that a $75 rebate rendered the case moot. Demmler v. ACH Food Cos. Inc., No. 15-13556 (D. Mass., order entered June 9, 2016). Details about the complaint appear in Issue 582 of this Update. The court found ACH had tendered full relief to the plaintiff by sending him treble statutory damages. Further, “the $75 check did not represent a settlement offer—ACH sent the check unprompted, and did not impose any preconditions on [the plaintiff] for doing so. This distinction makes all the difference,” the court held. The plaintiff could not pursue damages when he had already been made whole, the court noted, and his “refusal to accept the $75 is immaterial. The question under Article III is whether a live case or controversy exists,…
A Massachusetts consumer has filed a putative class action against ACH Food Companies, Inc., manufacturer of Weber® BBQ Sauces, alleging the company misleadingly markets its products as "All Natural" despite containing caramel coloring. Demmler v. ACH Food Cos., Inc., No. 15-13556 (D. Mass., filed October 13, 2015). The complaint asserts that under Massachusetts and federal regulations, the term "natural" cannot be used on products containing artificial ingredients such as added flavoring or coloring, so ACH's use of caramel coloring precludes it from labeling and marketing its products as natural. The plaintiff alleges he paid a premium for the sauce because he believed it to be natural, and he seeks to represent a class of consumers alleging unjust enrichment and a violation of state law. Issue 582
Gosling Brothers Ltd. has filed a complaint against Pernod Ricard USA, maker of Malibu Island Spiced Rum®, alleging that a recipe on the Malibu website violates Gosling’s “Dark ‘N Stormy” trademarks. Gosling Bros. Ltd. v. Pernod Ricard USA, No. 15-13360 (D. Mass., filed September 15, 2015). Gosling holds five trademarks for “Dark ‘N Stormy” in the categories of wine and spirits, bar services and clothing to protect a cocktail recipe and a premixed cocktail drink composed of Gosling’s Black Seal Rum and ginger beer. The Malibu website, the complaint alleges, offers a recipe for a “Dark N’ Stormy” drink composed of Malibu Island Spiced Rum®, ginger beer, bitters and a lime wedge along with a video instructing how to make the cocktail. The complaint further alleges that a similar recipe for a “Black Stormy” cocktail uses similar ingredients but replaces the Malibu Island Spiced Rum® with Malibu Black Rum®. Gosling…
A consumer has filed a lawsuit against Fifth Generation, Inc. alleging that its Tito’s Handmade Vodka® is not “handmade” as claimed on the label because it is produced through a mechanized process. Wilson v. Fifth Generation, Inc., No. 15-561 (M.D. Ala., filed August 5, 2015). The complaint joins a number of other lawsuits alleging similar facts and claims against Tito’s Handmade Vodka®. Fifth Generation has filed a motion to dismiss a similar lawsuit in Massachusetts federal court, arguing that the claims have “no basis in law or common sense” and no reasonable person could believe that a product sold nationally “was made exclusively in human hands in some backwoods, ad hoc operation, without any mechanical equipment.” Emanuello v. Fifth Generation, Inc., No. 15-11513 (D. Mass., motion filed August 5, 2015). In May and July 2015, courts dismissed lawsuits targeting “handmade” claims made on Maker’s Mark® labels, finding that the “handmade” claim “obviously cannot…
A plaintiff has alleged in Massachusetts federal court that Whole Foods Market mislabels its 365 Everyday Value Plain Greek Yogurt as containing 2 grams of sugar per serving despite Consumer Reports tests showing that a serving of the product contains an average of more than 11 grams of sugar. Knox v. Whole Foods Market, No. 14-13185 (U.S. Dist. Ct., D. Mass., filed Aug. 1, 2014). According to the complaint, the plaintiff learned about the alleged labeling discrepancy from Consumer Reports magazine, which tested six samples of 365 Everyday Value Plain Greek Yogurt and apparently found the average sugar content to be nearly six times the amount listed on the label. Whole Foods reportedly responded to the magazine’s findings by asserting that it relied on testing results from reputable third-party labs. The plaintiff alleges breach of warranty, unjust enrichment and negligence, and he seeks class certification, compensatory and punitive damages, attorney’s…
Tufts University Senior Research Scientist Guangwen Tang has reportedly accused the American Society for Nutrition (ASN) of defaming her with its plan to retract her 2012 article—“β-carotene in Golden Rice is as good as p-carotene in oil at providing vitamin A to children”—for allegedly prob- lematic research protocols. Filing in Middlesex County Court, Tang has also accused Tufts of interference in business relations because, she argues, the university barred her from doing human research for two years and told her she would be subject to disciplinary actions regarding future research and would be required to undergo human subject training—actions that Tufts disclosed to ASN and led to the organization’s decision to retract her article, she claims. Tang’s studies examined the effects of golden rice, genetically engineered rice enriched with β-carotene, in China through a 2008 field trial that involved feeding the rice to Chinese children. Chinese media reports and Greenpeace…
Massachusetts lawmakers have proposed a bill (H.B. 2011) to expand access to healthy food choices in vending machines on state property, including “government office buildings, road-side rest stops, state parks and recreation centers, state colleges and universities, and state supported hospitals.” The legislation seeks to set specific nutritional standards for all foods or beverages sold through vending machines located in government buildings or on property owned or managed by the commonwealth. To this end, the proposed bill would require that all beverage items must be one or a combination of the following: (i) water, including carbonated water, without added caloric sweeteners; (ii) coffee or tea without added caloric sweeteners, provided that condiments offered for these beverages have less fat than cream; (iii) fat-free or 1-percent low-fat dairy milk or calcium- and vitamin-D-fortified soymilk with less than 200 calories per container; (iv) 100 percent fruit juice or fruit juice combined with…
The First Circuit Court of Appeals has determined, as a matter of first impression, that Starbucks Corp. violated a Massachusetts law prohibiting restaurant tips to be shared with employees who have managerial responsibilities, because the “upscale coffee house” chain allowed tips collected in tip jars by the cash registers of its Massachusetts shops to be shared by shift supervisors and baristas. Matamoros v. Starbucks Corp., Nos. 12-1189, -1277 (1st Cir., decided November 9, 2012). Massachusetts apparently amended a tip-sharing law in 2004. Under the earlier version, the courts applied a “primary duty” test to decide whether an employee could participate in a tips pool—if the primary duty was to serve customers, he could participate; if the primary duty was to manage, she was ineligible. After amendment, the legislature clearly defined a “wait staff employee” as someone, among other matters, “who has no managerial responsibility.” The court agreed with the plaintiffs…
The manufacturer that sells the Bosch®, Thermador® and Gaggenau® brands of home appliances has sued the Julia Child Foundation for Gastronomy and the Culinary Arts seeking a declaration that it has not infringed the defendant’s trademarks and copyrights or the publicity rights related to the late Julia Child. BSH Home Appliances Corp. v. The Julia Child Found. for Gastronomy & the Culinary Arts, No. 12-11590 (D. Mass, filed August 24, 2012). According to the complaint, Julia Child used the plaintiff’s Thermador® oven for many years both on the set of The French Chef TV program and in her personal kitchen, which, after she died, was donated to and appears in the Smithsonian Institution. The oven maker claims that it has used images of Julia Child “and references to the well-known historical fact of her use of Thermador products in various media, including on its website and on its social media web…
