What a company knew and when is a critical question in any lawsuit involving recalled products. And the answer may be complicated, particularly when a manufacturer announces multiple recalls and expands previous recalls.Continue Reading Recall Litigation Report: Mid-America Pet Food Faces Putative Class Action Over Recalled Pet Food Products
Consumer-driven lawsuits that follow a product recall often focus on what the company knew, when it knew it, and how it acted in response. And for companies who are hoping to avoid such a lawsuit, one of the biggest questions is what do they need to disclose to consumers and how far does that obligation reach? Certainly, companies cannot disclose what they did not know, and manufacturers are not required to warn for every conceivable risk, regardless of how remote. A recent class action, Gurkov v. Real Kosher Ice Cream Inc., No. 1:23-cv-06128 (E.D.N.Y Aug. 14, 2023), brings these issues into focus.Continue Reading Recall Litigation Report: Real Kosher Ice Cream Sued Over Listeria Contamination
The wait is -almost- over! Eighteen years after the case was filed and nearly one year from the day the Second Circuit heard oral arguments in the MasterCard/Visa Interchange Fee Litigation, the Court of Appeals affirmed District Judge Margo Brodie’s approval of the $5.6 billion class action settlement agreed upon by the parties. While many observers believed the settlement would ultimately be affirmed, the panel did so with some unanticipated wrinkles, affirming a majority of the district court’s order, but leaving many of appellants’ questions and issues unanswered.Continue Reading Turning Fees Into Funds: $5.6 Billion Settlement in MasterCard/Visa Interchange Fee Litigation Is Affirmed on Appeal
Class actions following a product recall often focus on what the company allegedly knew before its products were taken off the market. But this is not always the case. A company can also come under fire for its actions after the recall and, specifically, what recourse it offers to consumers of recalled products.
On October 5, 2021, the U.S. Food and Drug Administration (“FDA”) alerted the public of a manufacturing issue with certain lots of Ellume USA LLC’s (“Ellume”) COVID-19 Home Tests that had could lead to false positive results, and several weeks later, the FDA announced a Class I recall of these tests based on the higher-than-acceptable false positive test result. When it comes to COVID-19, a false positive could lead to delayed diagnosis and treatment of the actual cause of illness; further spread of COVID 19 when presumed positive people are grouped based on false test results; unnecessary COVID-19 treatment from health care providers, such as antiviral treatment, convalescent plasma, or monoclonal antibody treatment, which can result in side effects; disregard for the recommended precautions against COVID-19, including vaccination; and isolation, monitoring household or close contacts for symptoms, limiting contact with family or friends, and missing school or work.
Continue Reading Recall Litigation Report: Consumers Bring Class Action Lawsuit Against Ellume Refusing to Refund Recalled COVID-19 Home Tests
Whether to label foods as either containing genetically-modified organisms (GMOs) or being GMO-free is getting more complicated. On the one hand, Vermont’s GMO-labeling law, which has thus far survived legal challenge, will require by next July that all foods for sale at retail in the state bear labeling regarding GMO content. On the other hand, many retailers and food producers seeking to capitalize on consumer perceptions that GMO-free foods are healthier, have voluntarily adopted GMO-free labels. No matter if such labeling is voluntary or compelled, the seller faces difficult evidentiary burdens in trying to substantiate GMO label claims. Let’s say it can be proved that GMO ingredients are not contained in a finished food item. How far up the production chain must one go in order to ensure GMOs were not otherwise involved in the process?
Last week, the popular restaurant chain Chipotle was sued in a proposed class action over its GMO-free claims. Chipotle has prominently made serving GMO-free food, and small farming in general, a centerpiece of its marketing. Its anti-GMO marketing stance has
Continue Reading Here Come the GMO-Free Class Actions
In January 2014, a blind patron sued Lucky Brand Jeans for discrimination when he was not able to use Lucky Brand’s point-of-sale (“POS”) device to independently complete a debit purchase because the visual touch screen on the POS was not discernible to blind individuals. The plaintiff filed a class action under title III of the Americans with Disabilities Act (“ADA”) in the U.S. District Court for the Southern District of Florida. Recently, the Department of Justice (“DOJ”) filed a Statement of Interest in this case in response to two arguments advanced by Lucky Brand in a motion to dismiss.
Lucky Brand argued that: (1) there is no requirement within the ADA and its regulations mandating that the POS devices have the capabilities requested by the plaintiff; and (2) since blind customers can purchase items by using cash, credit, or by processing their debit card as a credit card, there was no discrimination under the ADA merely because the plaintiff could not use the POS device to use his debit card as a debit card.Continue Reading DOJ’s Recently Articulated Position on the Accessibility of Point-of-Sales Devices
This year, the United States Supreme Court is expected to decide whether a retailer can protect itself against class action lawsuits by including a single claim arbitration provision in its contracts with customers.
At issue before the United States Supreme Court is the case of AT&T Mobility v. Concepcion. The question to be decided is whether a retailer can enforce a provision in its contracts with customers that states all disputes will be handled through single-party arbitration, as opposed to class action litigation. This decision is particulary relevant to retailers that commonly use customer agreements to sell products and services, such as banks, fitness clubs, car rental companies, and Internet companies.Continue Reading Supreme Court To Decide Whether Retailers Can Require Individual Arbitration of Customer Claims