A federal court in Illinois, presiding over consolidated multidistrict litigation claims against McDonald’s Corp. for allegedly advertising its French fries as gluten-, wheat- and dairy-free while actually using small amounts of hydrolyzed wheat bran and casein in them, has denied plaintiffs’ motion for class certification. In re McDonald’s French Fries Litig., MDL No. 1784 (N.D. Ill., decided May 6, 2009. The court determined that the class definition was indefinite and overbroad, the proposed class would be unmanageable, and individual issues would predominate over common ones. The plaintiffs, who alleged violations of all 50 states’ and the District of Columbia’s consumer fraud and/or deceptive trade practices acts, breach of express warranty and unjust enrichment, sought to certify a nationwide class of all persons “who purchased Potato Products from McDonald’s restaurants on or after February 27, 2002 through February 7, 2006 and who at the time of purchase had been medically diagnosed with…
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The Eleventh Circuit Court of Appeals has turned aside a constitutional challenge to the statutory damages provisions of the Fair and Accurate Credit Transactions Act in litigation against a food establishment that allegedly printed more than the last five digits of a customer’s credit card number on an electronically generated receipt. Harris v. Mexican Specialty Foods, Inc., Nos. 08-13510 & -13616 (11th Cir., decided April 9, 2009). The district court had granted the merchants’ motions for summary judgment and dismissed the claims with prejudice, after finding the statutory damages provision unconstitutionally vague and excessive. According to the appeals court, which addressed only the facial challenge to the law, by providing for a range of damages (from $100 to $1,000), the law does not deprive potential defendants of notice of the consequences of violations or result in arbitrarily assessed damages awards. The court remanded the litigation for further proceedings.
KFC U.S. Properties, Inc. has filed a lawsuit in federal court against the company that allegedly supplied defective food containers for the sale of Popcorn Chicken® to KFC customers; the containers apparently burst into flames when the product is reheated in a microwave. KFC U.S. Props., Inc. v. Paris Packaging, Inc., No. 09-00249 (W.D. Ky., filed April 3, 2009). According to the complaint, in February 2009, the defendant began using an ink with high carbon content for the graphics printed on the containers. After receiving customer complaints, KFC tested the containers and established that they “spontaneously combusted in a microwave within 13-20 seconds of reheating.” While no personal injuries have been alleged, the company is seeking damages in excess of $75,000 for breach of contract.
According to NowPublic.com, a self-proclaimed participatory online news network, the food industry, facing legislative initiatives that would require posting calorie and other nutritional information on restaurant menu boards, is fighting back with state-level preemption laws. Ohio recently approved legislation (H.B. 217) giving the state’s Director of Agriculture the sole authority to regulate how and whether food service operations must provide food nutrition information to the public, thus putting an end to the disclosure movement that was apparently gaining momentum at the local level there. Legislation adopted in Georgia (H.B. 1303) would prevent political subdivisions from adopting similar local laws. NowPublic notes that the restaurant industry lost its federal preemption argument when mounting a challenge in court to a menu disclosure law that took effect in New York City. The industry then apparently “changed its strategy” by seeking legislation in Congress that would create federal preemption of calorie posting laws and in…
The Philadelphia City Council this week adopted menu labeling laws that will require chain restaurants with more than 15 outlets to provide extensive nutritional information on printed menus and to list calories on menu boards. Starting January 1, 2010, national and local chains must disclose calories, saturated and trans fats, sodium, and carbohydrates on printed menus in the same typeface used for food descriptions and price. Opposed by the Pennsylvania Restaurant Association for its “one-size-fits-all” approach, the regulation also drew criticism from some council members who viewed the bill as an unnecessary burden on the restaurants. The Center for Science in the Public Interest, however, praised the new rules as a “useful incentive to the restaurant industry to expand the number and variety of healthy choices on their menus.” See CSPI Press Release, November 6, 2008; Philadelphia Inquirer, November 7, 2008; Meatingplace.com, November 10, 2008. In a related development, the Seattle Post-Intelligencer reported…
A California appeals court has determined that a misreading of prior case law led a trial court judge to erroneously overturn a jury verdict in favor of a plaintiff who alleged that she was made ill from exposure to campylobacter at defendant’s restaurant. Sarti v. Salt Creek Ltd., No. G037818 (Cal. Ct. App., 4th App. Dist., Div. 3, decided October 27, 2008). So ruling, the court reinstated $725,000 in economic damages and $2.5 million in noneconomic damages and allowed the plaintiff to recover her costs on appeal. The trial court granted the defendant’s motion for judgment notwithstanding the verdict, after determining, under a heightened causation standard, that reasonable inferences alone cannot prove a food poisoning case. The appeals court exhaustively analyzes the court’s reasoning in Minder v. Cielito Lindo Restaurant, 67 Cal.App.3d 1003 (1977), and shows how the court in that case misread prior case law “to preclude the use…
