Two consumers have filed a lawsuit against Subway Sandwich Shops Inc. and T-Mobile USA Inc. alleging the companies sent unsolicited text messages advertising an offer for a free sandwich without first obtaining written consent from the recipients. Rahmany v. T-Mobile USA Inc., No. 16-1416 (W.D. Wash., filed September 6, 2016). The complaint asserts that the plaintiffs each received an unsolicited text on September 1, 2016, advertising a free 6-inch chicken sandwich from Subway, with a link to download the T-Mobile app for additional details. T-Mobile sent the message with an automatic telephone dialing system “with the consent and encouragement of Subway for the purposes of financial gain in a mutually beneficial relationship between those two companies,” the plaintiffs allege. For alleged violations of the Telephone Consumer Protection Act (TCPA), the plaintiffs seek $500 per negligent violation and $1,500 per knowing or willful violation. Issue 616
Tag Archives Washington
The U.S. Environmental Protection Agency (EPA) and several conservation groups have agreed to a settlement that limits pesticide use near salmon habitats in three states in a lawsuit accusing the agency of failing to assess the effects of pesticides on salmon despite a 2004 court decision ordering it to consult with National Marine Fisheries Service (NMFS) on the issue. Nw. Ctr. for Alts. To Pesticides v. EPA, No. 10 1919 (W.D. Wash., stipulated settlement agreement filed August 13, 2014). The settlement bans aerial spraying of five pesticides—carbaryl, chlorpyrifos, diazinon, malathion, and methomyl—within 300 feet and ground applications within 60 feet of salmon habitats in California, Oregon and Washington. The restrictions will be in place while NMFS analyzes the impact of the pesticides on salmon, and according to the settlement, EPA will then be required to enact permanent protections based on the findings. The Fourth Circuit struck down similar provisions in 2013…
A federal court in Washington has determined that the U.S. Environmental Protection Agency (EPA) did not violate the Freedom of Information Act (FOIA) in responding to requests for information relating to its investigation of nitrate levels in groundwater and residential drinking water wells in the Lower Yakima Valley. Cmty. Ass’n for Restoration of the Env’t, Inc. v. EPA, No. 13-3067 (E.D. Wash., order entered August 6, 2014). Because the environmental organization (CARE), which is a plaintiff in Resource Conservation and Recovery Act (RCRA) citizen suits against the dairies whose documents are part of the FOIA requests, also alleged Administrative Procedure Act (APA) violations against EPA, the court granted its request to allow the parties to brief the merits of CARE’s APA claim. Meanwhile, the dairies subject to the RCRA actions have filed a lawsuit against EPA, seeking an order prohibiting EPA from disclosing to CARE or other members of the…
The state attorneys general (AGs) of Oregon, Vermont and Washington have reportedly filed separate lawsuits against Living Essentials and its parent Innovation Ventures seeking a permanent injunction to stop allegedly misleading and deceptive advertising for 5-hour ENERGY®. According to news sources, other state AGs are expected to bring similar action; some 30 have been investigating the accuracy of company ads for the product. Washington AG Bob Ferguson has alleged that the defendants violated the state consumer protection statute by (i) airing TV commercials with “survey results” from doctors who “recommend” the product “while misrepresenting survey results and failing to disclose key facts”; (ii) using a misleading “no sugar crash” product tagline given studies demonstrating a caffeine crash; (iii) implying that the product can be consumed by teens with the label statement, “Do not take if you are pregnant or nursing, or under 12 years of age”; and (iv) claiming that the…
Washington state voters have reportedly rejected a ballot initiative that would have required front-of-package labeling for genetically modified (GM) food products, seeds and other agricultural commodities. According to the Washington Secretary of State, 53 percent of voters ultimately opposed the initiative, which was hotly contested by consumer advocates, food companies, physicians, and farmers in the months preceding the November 5, 2013, general election. Opponents of the initiative argued that GMO labeling would not only increase household food prices by as much as $400 per year, but would expose small farmers to “shake-down, bounty hunter law suits” as well as burdensome regulations. “This is a clear victory for Washington consumers, taxpayers and family farmers across our state,” said “No on 522” campaign spokesperson Dana Bieber in a November 5 statement. “Washington voters have soundly rejected this badly written and deceptive initiative.” Meanwhile, major grocery retailers purportedly plan to continue their efforts…
A federal court in Washington has dismissed without prejudice a number of claims in a putative class action alleging that the producer and seller of a vitamin water product misled consumers by failing to disclose that the product contains caffeine or its relative amount and falsely represents that the product is a “natural tonic” and contains “natural caffeine.” Maple v. Costco Wholesale Corp., No. 12-5166 (E.D. Wash., order entered August 1, 2013). While the court determined that the plaintiff had standing by rejecting Costco’s contention that the labeling on one product unit was not visible through the packaging encasing the variety packs in which it is sold, it found that federal law preempts claims that the defendants were required to disclose the presence of caffeine or state its relative amount in the drink. Among the claims that the court dismissed for insufficient pleading were (i) violation of the state’s consumer…
Two additional putative class actions have been filed against Monsanto Co., alleging that the recent discovery of genetically modified (GM) wheat on a farm in Oregon has harmed wheat farmers throughout the United States due to diminished prices “resulting from loss of export and domestic markets” and “increased grower costs resulting from the need to, inter alia, maintain the integrity of the soft white wheat supply and/or to keep genetically engineered wheat from further entering the general wheat supply and export channels.” Dreger Enters. v. Monsanto Co., No. 12-211 (E.D. Wash., Spokane, filed June 5, 2013); Ctr. for Food Safety v. Monsanto Co., No. 13-213 (E.D. Wash., filed June 6, 2013). Like the suit filed by a Kansas farmer, the plaintiffs allege nuisance, negligence and strict liability as to Monsanto’s conduct of field tests of GM wheat throughout the country from 1998 to 2005. Information about the other lawsuit appears…
Answering a question certified by the Ninth Circuit Court of Appeals, a divided Washington Supreme Court has determined that a deputy sheriff who was served, but did not consume, a Burger King hamburger contaminated with an employee’s spit, may recover under state product liability law for emotional distress, “but only if the emotional distress is a reasonable reaction and manifest by objective symptomatology.” In re Bylsma v. Burger King Corp., No. 86912-0 (Wash., decided January 31, 2013). The deputy had alleged ongoing emotional distress, including vomiting, nausea, food aversion, and sleeplessness, symptoms that purportedly led him to seek treatment from a mental health professional. So ruling on a matter of first impression, the court majority agreed with the deputy sheriff that the Washington Product Liability Act allows recovery for emotional distress damages absent physical injury. The federal district court which had considered the deputy’s claim, dismissed it on the ground…
A federal court in California has certified a nationwide class and Washington subclass of individuals who received purportedly unsolicited text messages sent by OnTime4U to advertise Papa John’s pizza products. Agne v. Papa John’s Int’l, Inc., No. 10-1139 (W.D. Wash., decided November 9, 2012). An appeal was filed before the Ninth Circuit on November 26. According to the court, “OnTime4U apparently told Papa John’s franchisees that it was legal to send texts without express customer consent because there was an existing business relationship between the customers and the Papa John’s restaurants. Certain Papa John’s franchisees, including at least some of the Rain City Defendants, provided OnTime4U with lists of telephone numbers of individuals who had purchased pizza from them. Those lists were generated out of the PROFIT system, a proprietary database that Papa John’s describes as a ‘point of sale data entry system.’ . . . OnTime4U removed landline numbers from…
The Washington Department of Ecology has implemented the second part of a statewide measure “banning the sale of certain products containing BPA,” which now includes sports bottles with capacity up to 64 ounces. As of July 1, 2012, sport bottles containing bisphenol A (BPA) can no longer “be made, sold or distributed” in the state in accordance with a 2010 law passed by the state legislature. The first phase of the law, which took effect July 1, 2011, already prohibits “bottles, cups or other containers intended for children under age 3 that contain BPA,” although “cans designed to hold or pack food will still be allowed to contain BPA.” “A number of national and international scientific organizations have expressed concerns that BPA can interfere with the body’s hormonal system,” said the department in a July 11, 2012, press release. “Recent studies suggest some children may be exposed to enough BPA…
