Whole Oats Enterprises, a partnership of musicians Daryl Hall and John Oates, has filed a lawsuit against Early Bird Foods & Co. alleging that the name of the company’s “Haulin’ Oats” granola product infringes on their trademarks. Whole Oats Enters. v. Early Bird Foods & Co., No. 15-1124 (E.D.N.Y., filed March 4, 2015). The musicians own the registered trademark in “Daryl Hall and John Oates” and assert common law trademark rights to “Hall & Oates,” which the group often calls itself. Early Bird’s “Haulin’ Oats,” a granola product containing rolled oats and maple syrup, is an “obvious” “phonetic play” on the band name, the complaint alleges. The complaint also details a 2014 attempt at the use of “Haulin’ Oats” by a Tennessee company selling oatmeal and food-delivery services. The company assigned its rights to “Haulin’ Oats” to Whole Oats, which then licensed the name back to the company in exchange for royalties.…
Tag Archives New York
A consumer has filed a putative class action in New York federal court against Blue Diamond Growers alleging that the company deceptively labels its Almond Breeze Almond Milk as “All Natural” despite containing potassium citrate, Vitamin A Palmitate, Vitamin D2, and D-Alpha-Tocopherol. Harlam v. Blue Diamond Growers, No. 15-877 (E.D.N.Y., filed February 19, 2015). The plaintiff alleges that 18 varieties of Blue Diamond almond milk contain the ingredients at issue, which she asserts are artificial or synthetic and, as a result, reasonable consumers would not expect to find them in products labeled as natural. “The [U.S. Food and Drug Administration] considers use of the term ‘natural’ on a food label to be truthful and non-misleading when ‘nothing artificial or synthetic . . . has been included in, or has been added to, a food that would not normally be expected to be in the food,’” she argues. Alleging unjust enrichment, breach…
Ina Garten, the chef who hosts Food Network’s “Barefoot Contessa,” and her company have filed a lawsuit against a seafood producer for allegedly infringing the Barefoot Contessa mark with its line of “Contessa Chef Inspired” frozen dinners. Barefoot Contessa Pantry LLC v. Aqua Star (USA) Co., No. 15-1092 (S.D.N.Y., filed February 17, 2015). Barefoot Contessa, the company that owns the trademarked name, agreed in 2012 to license the mark to unrelated entity Contessa Premium, a frozen- dinner manufacturer, on the condition that Garten and the company had strict control over the quality of the dinners produced and marketed under the Barefoot Contessa name. In April 2014, Contessa Premium sold its assets to OFI Imports, Inc. and its parent company, Aqua Star, according to the complaint. The day after the sale, Barefoot Contessa apparently terminated the license and refused to grant OFI a new license, “given OFI’s lack of experience in…
A New York federal court has granted conditional class certification to plaintiffs employed by T.G.I. Friday’s who allege underpayment for side work and lack of payment for overtime work in violation of the Fair Labor Standards Act (FLSA). Flood v. Carlson Restaurants Inc., No. 14-2740 (S.D.N.Y., filed April 17, 2014). The restaurant employs as many as 42,000 tipped workers throughout the United States who are eligible to join the nationwide class. T.G.I. Friday’s argued that the named plaintiffs were not similar enough to merit class certification, but the court disagreed, finding that the plaintiffs’ “declarations and depositions—which cover eight T.G.I. Friday’s locations in four states—contain common allegations of FLSA violations, including Defendants’ denial of full minimum wage and overtime compensation for tipped workers.” The court dismissed the restaurant’s arguments on the merits of the case, noting that those issues could not be addressed at the class certification stage, and directed…
After granting a motion for summary judgment in favor of Kangadis Food Inc.’s (KFI’s) owners, a New York federal court has issued an order further explaining its decision to dismiss the owners from a false-labeling class action. Ebin v. Kangadis Family Mgmt. LLC, No. 14-1324 (S.D.N.Y., order entered December 1, 2014). Additional information about the initial dismissal appears in Issue 543 of this Update. The court held that the plaintiffs “totally failed” to properly argue that the court should pierce the corporate veil and hold the owners liable for KFI’s actions. To satisfy the second prong of the piercing-the-veil test, the plaintiffs had to show that the owners, “through their domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice” against the plaintiffs. The court found that rather than providing an argument satisfying the second prong, the plaintiffs merely provided a “wholly conclusory statement”…
A New York federal court has rejected Wolfgang’s Steakhouse and ZMF Restaurants LLC’s motion to dismiss a case alleging that the restaurant violated the Fair and Accurate Credit Transactions Act of 2003 (FACTA) by printing credit card expiration dates on receipts. Fullwood v. Wolfgang’s Steakhouse, Inc., No. 13-7174 (S.D.N.Y., order entered November 14, 2014). The court found that the plaintiff’s amended complaint insufficiently supported its allegation that Wolfgang’s knew of the ramifications of violating FACTA yet wilfully disregarded the law, but granted her leave to amend. The plaintiff brought her putative class action after receiving a receipt from Wolfgang’s that displayed her credit card’s expiration date. She did not, however, allege any actual damages from the disclosure. Under FACTA, actual damages can be awarded for both negligent and willful violations; only willful violations, however, can result in the statutory and punitive damages that the plaintiff seeks. Accordingly, the court devoted much of…
According to press reports, New York Assemblyman Karim Camara (D-Brooklyn) announced this week that he intends to propose legislation requiring sugar-sweetened beverages (SSBs) to carry labels cautioning that their consumption contributes to “obesity, diabetes and tooth decay.” He introduced a similar bill (A10172) in August 2014, but no action was apparently taken on that initiative. “We can’t sit back and pretend that sugary drinks aren’t harmful to people,” Camara was quoted as saying. “The research is clear—too much sugar leads to health problems such as obesity and diabetes.” A California Assembly committee defeated like-minded legislation earlier in 2014. More details about that proposal appear in Issue 527 of this Update. See The New York Post, November 13, 2014. Issue 545
A federal court in New York has granted the motion for summary judgment filed by the owners of Kangadis Food Inc., a company that declared bankruptcy when faced with class claims that it falsely labeled its products as pure olive oil when they actually contain an industrially processed substance. Ebin v. Kangadis Family Mgmt. LLC, No. 14-1324 (U.S. Dist. Ct., S.D.N.Y., order entered October 24, 2014). Additional information about the litigation appears in Issue 539 of this Update. According to the court, the “plaintiffs have failed to adduce competent labeling evidence from which any reasonable juror could conclude that defendants used their alleged domination of Kangadis Food Inc. as a means to accomplish the fraud here alleged.” Counsel for the defendants reportedly surmised that the court agreed that the plaintiffs’ “derivative claims are nothing more than a desperate attempt to extract some value from the defendants, individuals and a separate entity with…
A New York federal court has approved a $910,000 settlement in a class action contending that Pret A Manger failed to pay employees for the time it took them to put on uniforms or time spent waiting for the changing room. Trinidad v. Pret A Manger (USA) Ltd., No. 12-6094 (S.D.N.Y., order entered September 19, 2014). Under the settlement agreement, Pret will pay $910,000 to the class to be distributed on a sliding scale, with $5 to class members employed for less than a week, and about $4.50 per week to class members who worked there longer. Class counsel sought 33 percent of the settlement fund for attorney’s fees, but the court found fault with some of counsel’s billing practices. It noted that approximately 70 percent of the billed hours were worked by a partner at the rate of $550 per hour, but “a close review of the tasks that [the…
A New York bankruptcy court and federal court have issued orders certifying classes in litigation against Kangadis Food, Inc. d/b/a The Gourmet Factory and related entities, alleging that the company falsely labeled its products as “100% Pure Olive Oil” when they actually contain the industrially processed substance “olive-pomace oil,” “olive-residue oil” or “Pomace.” In re Kangadis Food Inc., No. 14-72649 (U.S. Bankr. Ct., E.D.N.Y., order entered September 19, 2014); Ebin v. Kangadis Family Mgmt. LLC, No. 14-1324 (S.D.N.Y., order entered September 18, 2014). Additional information about the federal court proceeding appears in Issue 507 of this Update. While the federal court dismissed the direct claims against the company’s owners, it found that the claims could proceed against them “under the veil piercing and alter ego theories.” The court further rejected the defendants’ “ascertainability” challenge to class certification, noting that “whether or not an individual purchased during the class period a tin…
