The Eleventh Circuit has denied a petition for rehearing in a putative class action against Chipotle Mexican Grill alleging false advertising related to genetically modified organisms (GMOs). Reilly v. Chipotle Mexican Grill, Inc., No, 16-17461 (11th Cir., entered November 14, 2017). The appeals court previously denied the plaintiff’s appeal from the trial court’s entry of summary judgment. The plaintiff alleged that she stopped eating Chipotle's chicken burritos after learning from the company website that although the meat and dairy products it uses are not genetically modified, “most animal feed in the U.S. is genetically modified, which means that the meat and dairy served at Chipotle are likely to come from animals given at least some GMO feed.” She began eating at a different Mexican restaurant, where she paid more for a similar chicken burrito despite the restaurant not claiming its food was non-GMO. The district court ruled that the plaintiff…
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A consumer has filed a lawsuit alleging that she became ill after eating a chicken salad containing “hard, gray-colored granules” with a “foul odor and taste” at a location of Bojangles Famous Chicken 'n Biscuits. Green v. Bojangles Restaurants, Inc., No. 17-2936 (D.S.C., removed to federal court October 30, 2017). The plaintiff asserts that she ordered a Roasted Chicken Bites salad that contained the granules, which she ate because she purportedly thought they were pieces of feta cheese. The plaintiff contends that she immediately became ill and vomited at the restaurant, while her husband took the granules to the restaurant owner, who apparently indicated he would have them tested at a laboratory. The plaintiff also argues that after the incident, she developed “nodules or growths” in her throat that remained for about 18 months. Claiming strict liability, breach of implied warranty, negligence, negligence per se and loss of consortium, the plaintiff…
The Scottish Government is seeking public comment on a consultation that proposes actions to improve diet and reduce obesity in Scotland. The government previously announced funding of more than $55 million over five years to limit the marketing of food high in fat, sugar and salt and provide weight-loss support for people with type 2 diabetes. The consultation, which is open through January 31, 2018, asks questions about promotions and marketing, “out of home” or restaurant eating, labeling, product reformulation and taxes on sugar-sweetened beverages or similar products. Scotland is also considering proposals to limit “junk food” advertising and provide support for small and mid-sized food manufacturers to reformulate and develop healthier products.
Green Crush, a retailer selling juice, smoothie and aguas frescas beverages, has filed a lawsuit alleging that a former Green Crush manager and a former contractor engaged in corporate espionage, asserting that they used the chain’s proprietary information and infringed its trademarks and trade dress to start a competing company. Green Crush, LLC v. Paradise Splash 1, Inc., No. 17-1856 (C.D. Cal., filed October 23, 2017). The complaint alleges that the manager frequently asked senior Green Crush employees about “distribution operations, specific equipment, detailed drink ingredients, the design, placement, setting and layout of drink containers and cups, and the process and recipes used” before leaving to start a competing juice store. Further, Green Crush argues, the manager and contractor solicited Green Crush employees to work for them; allegedly, some of those employees asked “if the store under construction was a [Green Crush] store because it looked just like one.” Seeking…
A Texas appeals court has held that Mark Anthony Brewing cannot produce and label a house-brand beer for TGI Friday’s restaurants because state law prohibits “overlapping” relationships among alcohol manufacturers, distributors and retailers. Texas Alcoholic Beverage Comm’n v. Mark Anthony Brewing, Inc., No. 16-0039 (Texas Ct. App., entered October 13, 2017). The Texas Alcoholic Beverage Commission (TABC) rejected Mark Anthony Brewing's application for approval of the beer labels, which it created as part of a licensing agreement with TGI Friday's, on the grounds that Texas’ “tied-house” statutes prohibit such business relationships. Specifically, TABC found, the agreement violated the part of the administrative code providing that “[n]o application for a label shall be approved which indicates by any statement, design, device, or representation that the malt beverage is a special or private brand brewed or bottled for, or that includes the name, trade name, or trademark of any retailer permittee or…
Danny Meyer, David Chang, Jonah Miller, Tom Colicchio and other restaurateurs have been named as defendants in a putative class action that alleges a business strategy to eliminate tipping and replace it with a service charge of at least 20 percent is price-fixing and a conspiratorial restraint of trade that violates the federal Racketeer Influenced and Corrupt Organizations Act and Sherman Act. Brown v. 140 NM LLC, No. 17-5782 (N.D. Cal., filed October 5, 2017). The complaint alleges that the restaurateurs' agreement constitutes price-fixing because the restaurants involved conspired to raise their prices simultaneously. Meyer, CEO of Union Square Hospitality Group, is alleged to have spearheaded the “conspiracy.” The complaint cites dozens of newspaper articles, television and radio interview transcripts, trade group meetings and tweets in which Meyer and other defendants discussed the reasons for implementing the change and explaining the competitive advantages of acting as a group. According to…
A former employee of Shake Shack Inc. has alleged he was fired after complaining about health and safety violations at one of the company’s New York City locations. Via v. Shake Shack Inc., No. 17-7049 (S.D.N.Y., filed September 14, 2017). The plaintiff alleges that managers of one location fired him after he complained that, among other allegations, they (i) failed to train employees about food allergies; (ii) allowed visibly sick workers to prepare food; and (iii) failed to properly clean the kitchen and equipment. Recent New York City health inspections cited the location for the presence of food/refuse/sewage-associated flies found in food and non-food areas, contaminated and cross-contaminated food and food contact surfaces that had not been sanitized. Claiming retaliation in violation of state laws, the plaintiff seeks $1 million in damages.
The U.S. Court of Appeals for the Seventh Circuit has rejected class certification and a settlement agreement in a lawsuit alleging Subway sells "Footlong" sandwiches that are sometimes shorter than 12 inches. In re: Subway Footlong Sandwich Mktg. & Sales Practices Litig., No. 16-1652 (7th Cir., entered August 25, 2017). “In their haste to file suit," the court noted, "the lawyers neglected to consider whether the claims had any merit. They did not.” Additional details about this case appear in Issues 468 and 487 of this Update. The court found that the parties established in early discovery that the raw dough sticks the chain uses for baked bread portions were uniform in weight and that variations in final length were “wholly attributable to the natural variability in the baking process.” In addition, meat and cheese toppings are standardized, “so the length of the bread has no effect on the quantity of food each…
The Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office has reversed a refusal to register “The Cannibal” as a mark for beer to Iron Hill Brewery, finding little likelihood of confusion between the beer and a restaurant called “The Cannibal Beer & Butcher.” In re Iron Hill Brewery, No. 86682532 (TTAB, entered July 28, 2017). The board found that Cannibal Beer & Butcher failed to show that consumers would be confused by Iron Hill's use of "Cannibal" because the beer product that the brewery provides is different from the restaurant services provided by Cannibal Beer & Butcher. "In light of the large number of restaurants in the United States, the facts that a single mark is sometimes used [to] identify restaurant services and beer, that some restaurants are associated with breweries, and that restaurants may sell beer are not sufficient to establish a relationship between restaurant…
Pret A Manger faces a putative class action alleging the chain’s wrap packaging hides inches of empty space between sandwich halves. Lau v. Pret A Manger (USA) Ltd., No. 17-5775 (S.D.N.Y., filed July 31, 2017). The complaint alleges that Pret's wraps are packaged in clear plastic sleeves with an opaque cardboard band hiding nonfunctional slack fill between the cut halves. The plaintiff also argues that the sandwiches are misbranded under the Food, Drug and Cosmetic Act and that the act's safe harbor provisions allowing extra space in packaging do not apply to the wraps because they are made and sold at the restaurant’s locations. Claiming violations of New York consumer-protection law and fraud, the plaintiff seeks class certification, damages, restitution, injunctive relief and attorney’s fees. Issue 643
