Kraft “Natural” Cheese Contains Milk with Hormones Class Action

Consumers more and more often desire to buy foods that are “natural,” including products from animals that have not been given certain substances in their feed. The complaint for this class action alleges the Kraft Heinz Company has been claiming that some of its dairy products were “natural,” when in fact they were made from milk from cows that had been given an artificial growth hormone.

Consumers nowadays “are concerned that the use of artificial growth hormones in animals raised for food is inhumane and contributes to health problems both for the animals and for the humans who consume the food,” the complaint says. “One such artificial hormone is recombinant bovine somatotropin (rbST), which is also known as recombinant bovine growth hormone (rbGH).” This hormone artificially unnaturally increases milk production.

Consumers may also be concerned about ingesting hormones, the complaint says, because some studies have suggested that the use of rbST may increase the risks of certain kinds of cancers. The complaint also alleges, “Compared to milk produced without rbST, milk from cows treated with rbST can have increased fat content and decreased level of proteins, as wel as higher counts of somatic cells (i.e., pus) which makes the milk turn sour more quickly.”

Kraft announced in January 2019 that its natural cheese would henceforth be made from milk that did not contain the artificial hormone rbST. Before this time, the complaint says, “Kraft labeled and marketed its products as ‘natural,’ even though they were made with milk from cows administered rbST.”

The complaint alleges that the designation in former times of the cheeses as “natural” “was false, deceptive, and misleading…”

Even worse, the complaint alleges, “[w]hile many of the Products are now made from milk produced without the artificial hormone rbST (collectively, the ‘Type A Products’), certain Kraft Natural Cheese products (e.g., varietites containing parmesan, asiago, and Romano cheese) continue to be made with milk from cows who were administered rbST (collectively, the ‘Type B Products’).

In other words, according to the complaint, Kraft used to deceive consumers with its “natural” representations on the Type A products and still continues to deceive them with its “natural” representations on the Type B products.

The class for this action is all consumers who bought the products in the US within the applicable statutes of limitations, while the Products contained rbST, until the date of certification of the class in this action.

Three subclasses have also been defined, including a Nationwide Type B Subclass, a California Subclass, and a California Type B Subclass.

The list of products is very long. It may be found in a large footnote on pages 2 and 3 of the class action, linked below.

Dick’s Sporting Goods Off-the-Clock Security Check California Class Action

Companies sometimes ask employees to perform some type of work before they’ve clocked in or after they’ve clocked out—for example, putting on protective gear or starting up computer systems. In this class action, a worker at Dick’s Sporting Goods, Inc. complains that she is forced to wait in line, off the clock, for a security check to be performed, even though it’s the business that requires the security check.

The Rule 23 Class for this action is all current and formerly hourly, non-exempt workers employed at any Dick’s Sporting Goods store in California at any time between July 2, 2016 until the resolution of this action.

According to the complaint, this off-the-clock work means that Dick’s violates the law in a number of ways.

  • It deprives workers of at least minimum wage for all hours worked.
  • It deprives them of wages for all hours of work performed.
  • It saves Dick’s from having to pay workers overtime.
  • It means that when the company does not count this time, it does not provide workers with the accurate, itemized statements they’re entitled to.
  • It means that when workers separate from the company, they are not promptly paid all wages to which they’re entitled.
  • Since they haven’t been promptly paid all wages, it means that workers are entitled to “waiting time” penalties, which allow them to keep racking up pay for up to thirty days after separating from the company.

Plaintiff Gale Carroll worked for a Dick’s Sporting Goods store in Fresno, California from roughly November 2017 to June 2019. She was a non-exempt, hourly cashier who earned $11 to $12 per hour. Class members are those employed in similar jobs, including supervisors, cashiers, attendants, custodians, security guards, stockers, and others.

During the summer months, Carroll was scheduled to work from four to eight hours per day, for a total of fifteen to twenty hours per week, and during the school year, she was scheduled to work for up to thirty hours per week.

According to the complaint, “Upon information and belief, class members worked more than 8 hours per day and more than 40 hours in at least one workweek during the four years before this Complaint was filed.”

Carroll and other workers in the class performed work under Dick’s supervision, using materials and technology supplied by Dick’s. They are therefore considered to be non-exempt, non-management workers.

The complaint alleges violations of California Labor Code as well as Industrial Welfare Commission Wage Orders.

Rite Aid Infants’ and Children’s Acetaminophen Prices Class Action

Acetaminophen can be dangerous, even fatal, if taken in large doses. Parents are particularly concerned about this when dosing infants. The complaint for this class action alleges that Rite Aid Corporation exploits this fear to charge more for its Infants’ acetaminophen product than for its identical children’s formula.

The Nationwide Class for this action is all persons who bought the Infants’ product, for personal use, in the US.

Rite Aid sells acetaminophen products under its Over the Counter (OTC) brand, including an Infants’ Fever Reducer & Pain Reliever and a Children’s Fever Reducer & Pain Reliever.

Plaintiff Gina Ostermeier-McLucas bought the Infants’ product because she believed that the Infants’ product was different from the Children’s product. The complaint claims that the marketing and labeling of the Infants’ product led her to believe it was “specifically formulated and designed for infants[.]”

According to the complaint, “despite the fact that the Products contain the same exact amount of acetaminophen in the same dosage amounts, [Rite Aid] markets and sells Infants’ Products to consumers, such as [Ostermeier-McLucas], at a substantially higher price than Children’s Products. In stores, the Infants’ Products cost approximately three times as much per ounce [as] Children’s Products for the same amount of medicine.”

How did this situation come to be? In former days, many manufacturers did in fact sell the Infants’ product in a different strength than the Children’s product. At that time, Infants’ products contained 80mg per 0.8 or 1.0 mL. The Children’s product contained 160 mg per 5mL. The Infants’ product was therefore considerably stronger than the Children’s one, because companies believed it was easier to use a dropper to place a limited amount of the medicine in a baby’s mouth than to get it to drink a 5mL cupful of the medicine.

Unfortunately, parents were sometimes confused about whether the amount their doctors had prescribed was the Infants’ product or the Children’s product. At times, this resulted in the parents giving the child too much of the stronger product, causing them to overdose.

The complaint says, “Between 2000 and 2009, US Food and Drug Administration (FDA) received reports of twenty (20) children dying from acetaminophen toxicity, and at least three (3) deaths were tied to mix-ups involving the two pediatric medicines.” In December 2011, in order to minimize such mix-ups in the future, the FDA decided that acetaminophen would only be sold in the weaker, Children’s strength.

At this time, the primary different between the Infants’ and Children’s products are that the Infants’ product comes with a syringe and the Children’s product comes with a small plastic measuring cup. The amount of medicine in each per mL is identical. However, certain makers—including Rite Aid—continue to charge considerably more for the Infants’ product.

Ostermeier-McLucas claims that she only bought the more expensive product because of Rite Aid’s “false, misleading, and deceptive representation that the Infants’ Products were formulated and designed” specifically for infants.

Aaron’s Overtime Pay and Breaks California Class Action

When a company calculates the overtime rate of pay for its employees, it must take into consideration more than just the employee’s base hourly pay. The complaint for this class action alleges that Aaron’s, Inc. does not figure in incentive pay when calculating employees’ overtime rates. It also alleges that the company does not give employees proper meal or rest breaks. These violations mean that the company is likely to violate other, “downstream” requirements under California’s labor laws.

The class for this action is all persons who are or have been employed, in California, as an hourly employee by Aaron’s, between July 2, 2016 and the present.

Plaintiff Luis H. Castro Cardenas worked for Aaron’s in California as an hourly employee. The complaint assumes that his employment is subject to California Industrial Welfare Commission Occupational Wage Orders as well as its Labor Law.

The complaint alleges a number of violations committed by Aaron’s against Cardenas:

First, the complaint claims that Aaron’s did not take Cardenas’s incentive pay into consideration when figuring his overtime rate of pay. This would mean that his rates of pay at time-and-a-half and double time were incorrectly calculated.

Second, the complaint claims that Cardenas did not get proper meal breaks at the required intervals in his workday. The complaint claims that employees were not informed that they were entitled to such meal breaks. While companies are allowed to ask workers to skip meal breaks, in such instances they must give them an addition hour’s pay.

Third, the complaint claims that Cardenas did not get proper rest breaks at the required intervals in the day, nor was he informed that he was entitled to them. Again, companies are allowed to ask workers to skip their rest breaks, but when they do, they must give them an additional hour’s pay.

These violations led to other, “downstream” violations.

Because of the improper calculation of overtime pay and the failure to allow for proper meal and rest breaks, the company did not provide workers with accurate itemized statements.

Because the company had not paid proper overtime wages or penalties for missed meal or rest breaks, it also had not paid workers all it owed them at termination or resignation.

Because not all wages were paid at termination, the complaint alleges that workers who were terminated or resigned are entitled to “waiting time” penalties. California’s waiting time penalties provide that in such instances, a worker is entitled to continuing pay for up to thirty days after termination or resignation.

YouTube Facilitation of Copyright Piracy Class Action

The first lines in the complaint for this class action are, “This case is about copyright piracy. YouTube, the largest video-sharing website in the world, is replete with videos infringing on the rights of copyright holders.” The complaint names YouTube, LLC, Google, LLC, and parent company Alphabet, Inc. as defendants.

The complaint alleges, “YouTube has facilitated and induced this hotbed of copyright infringement through its development and implementation of a copyright enforcement system that protects only the most powerful copyright owners such as major studios and record labels.”

These large content owners can use a tool called Content ID that “compares videos being uploaded on YouTube to a catalog of copyrighted material submitted by those entities permitted to utilize Content ID.” Unfortunately, this tool is not available to ordinary users.

Ordinary creators must use manual means to locate illegal postings of their works, only after they are posted, and then file individual takedown notices with YouTube. According to the complaint, YouTube also limits the number of takedown notices they will process for individual users.

The complaint alleges that this system is “deliberate and designed and designed to maximize YouTube’s … focused but reckless drive for user volume and advertising revenue.” The complaint claims that the companies now earn $15 billion in advertising revenues from advertising and additional money from the personal data it collects on users.

The complaint alleges that the site facilitates the piracy, allowing quick uploading of materials “with no prepublication diligence” as to whether the work belongs to the posters or not. According to the complaint, Google does not even use anti-piracy tools it previously used elsewhere to avoid infringement.

The complaint alleges that the companies are responsible for the copyright infringement that takes place on YouTube because they are not entitled to any of the safe harbors provided by the Digital Millennium Copyright Act.

Two classes have been proposed for this action.

The first is all persons holding the exclusive right to publicly perform, reproduce, publicly display, or distribute film, audiovisual, or musical works over the internet for works first going into the public domain after December 31, 1977 whose copyrighted works have been uploaded to YouTube within the relevant statute of limitations, whether the upload is the works in their entirety or only a portion of them, where the person has had to submit a successful takedown notice and where the work has been infringed or uploaded again without permission, and where the person has not benefitted from the YouTube Content ID program.

The second is all persons holding the exclusive right to publicly perform, reproduce, publicly display, or distribute film, audiovisual, or musical works over the internet for works first published after 1976, whose works have been uploaded to YouTube without the associated copyright management information within the relevant statutes of limitations.

Twin City Fire Insurance Rejection of Covid-19 Closure Claims Class Action

In a now-familiar pattern, this class action brings suit against an insurance company which is rejecting claims for business losses due to closures to prevent the spread of Covid-19. According to the complaint, the Harford Financial Services Group, Inc. and its subsidiary Twin City Fire Insurance Company, have rejected claims from its insureds, claiming that its policies do not cover Covid-19 closure business losses.

The class for this action is all policyholders in the US who bought commercial property coverage, including business or interruption income and extra expense coverage from the Hartford or Twin Cities and who have been denied coverage under their policy for lost business income after being ordered by a government entity to shut down or curtail business in response to the Covid-19 pandemic.

The plaintiff in this case is Leal, Inc., which operates a boutique clothing store in Columbus, Ohio. Leal is insured by Twin Cities and the Hartford. The policy is an “all-risk” policy that covers “direct physical loss of or physical damage to Covered Property … caused by or resulting from any Covered Cause of Loss.”

The policy does not define the terms “direct physical loss of or physical damage to…” However, the complaint alleges that “the use of the disjunctive ‘or’ in the phrase ‘direct physical loss of or physical damage to’ means that coverage is triggered if either a physical loss of property or damage to property occurs. The concepts are separate and distinct and cannot be conflated.”

The complaint goes on to claim, “Physical loss of, or physical damage to, property may be reasonable interpreted to occur when a covered cause of loss threatens or renders property unusable for its intended purpose or unsafe for normal human occupancy and/or continued use.”

The policy includes Business Income and Extra Expense Coverage, as well as coverage for business income losses due to an “order of civil authority” that forbids access to the covered property.

The complaint says that various studies have shown that Covid-19 germs can live on surfaces for days, and that this therefore is a cause of physical loss or damage.

Governor Mike DeWine declared a State of Emergency on March 9, 2020. The Ohio Department of Health issued an order closing all non-essential businesses, including Leal, on March 22. The store was able to resume “significantly limited operations” on May 12. The complaint alleges that this has led to “a substantial loss of business income and additional expenses covered under the Policy.”

However, Leal’s insurance claim was rejected because the company contended that the losses don’t come from “property damage at your place of business or in the immediate area” and because the policy contains a Virus Exclusion.

Coca-Cola “Vanilla” Coke Labeling New York Class Action

The Coca-Cola Company sells a version of its popular Coca-Cola in a vanilla version known as Vanilla Coke. The complaint for this class action alleges that the name and representations on the can are deceptive and misleading because the drink is not flavored exclusively with vanilla.

The class for this action is all persons who live in New York who bought the product during the applicable statutes of limitations.

An image of the drink can is reproduced on the second page of the complaint, showing the words “Vanilla” and “Vanilla Flavored & Other Natural Flavors.”

The complaint alleges that the representations on the can are misleading, because “although the characterizing flavor is represented as vanilla, the vanilla taste is not exclusively from vanilla and is from artificial flavors.”

Three different surveys referred to by the complaint claim that majorities of consumers (from 62% to 76%) avoid artificial flavors.

Real vanilla flavor, from the vanilla plant, is popular, rare, and expensive. The complaint says, “Because of widespread fraud in vanilla products, vanilla became the only flavor for which a standard of identity was established” with rules different from the general flavoring rules.

The ingredient panel for the drink shows “Natural Flavors” but no vanilla. If the drink contained real vanilla, the complaint says, the ingredient “Vanilla Extract” or “Vanilla Flavoring” should be shown as the specified name of a real vanilla ingredient.

The front notation “Vanilla Flavored & Other Natural Flavors,” the complaint says, is consistent with the labeling for what is known as “Vanilla WONF” or “Vanilla with Other Natural Flavors.” “However,” the complaint says, “when a product’s primary characterizing flavor is vailla, it is misleading to use the ‘WONF’ labeling structure because the vanilla standards take precedence over the general flavor regulations where they may otherwise be in conflict.”

What does that mean? The complaint claims, “The vanilla regulations require that where a product is labeled as vanilla, the addition of non-vanilla flavors that increase and promote a vanilla taste are required to be declared as artificial flavors, so consumers are not misled.”

If vanillin is used, the label must tell consumers that the drink “contains vanillin, an artificial flavor” (or “flavoring”).

The complaint alleges that Coca-Cola’s “branding and packaging of the Product is designed to—and does—deceive, mislead, and defraud … consumers.” It claims that the company sells more of the product and at higher prices because of these representations.

Kohl’s Misclassification of Assistant Store Managers New York Class Action

The first sentence of the complaint for this class action makes a flat statement: “Retail employers must pay overtime to their assistant managers unless their primary duty is management.” It attributes this requirement to New York Labor Law. However, the complaint contends, Kohl’s Department Stores, Inc. and Kohl’s Corporation misclassify assistant stores managers as exempt from overtime rules and do not pay them for overtime hours.

According to the complaint, Kohl’s assistant managers should not be classified as exempt: Kohl’s “assign[s] non-management work to its Assistant Store Managers (ASMs) which generally takes up more than 50% of their time, closely supervises their work, and pays them only a little more than its non-exempt employees.”

Unfortunately, the complaint claims, “It schedules them to work 45 hours or more each week (over 50 during holiday seasons), but schedules so few hourly staff that in fact they regularly work 50-60 hours per week. Kohl’s classifies all of its ASMs as exempt ‘executive’ and does not pay them overtime.”

Plainiff Jenna Graziano lives in Newburgh, New York. She worked as an Assistant Store Manager of Human Resources and Operations for Kohl’s in Newburgh from roughly September 2007 to October 2015.

The complaint alleges, “Although there are categories of ASMs that focus on different areas, the basic duties of an ASM are the same.” The ASMs’ “primary duty is to perform mostly the non-exempt labor of the stores in which they work, including unloading trucks, unpacking merchandise, filling online orders, stocking shelves, [performing] customer service and operating cash registers.” The complaint claims that the duties of various categories of ASMs are “similar with only minor differences.” It also classifies all ASMs as exempt.

Kohl’s tries to keep its payroll expenses down, the complaint alleges, with a practice of substituting ASMs for hourly associates. “It has done this in part by sending hourly associates home before the end of their shift and not replacing them when they call[] out. Kohl’s then requires the ASMs to finish the hourly tasks of the hourly associates who had been scheduled but were sent home early or not replaced.”

Kohl’s normally schedules ASMs for 45 hours per week. During holiday weeks, from the week before Thanksgiving through the end of December, they are scheduled for six days and 54 hours per week. During inventory, they are schedule for 60 hours per week.

ASMs are also closely monitored. When they are assigned some management duties, the complaint says, these are routine and closely directed and supervised by others.

The class for this action is all those who have worked for Kohl’s as ASMs in New York.

Mapfre Insurance Covid-19 Salon Insurance Coverage Class Action

Many of the businesses that were forced to close to prevent the spread of the coronavirus pandemic are seeking to recoup lost business income from their insurance companies. Many insurance companies have rejected their claims. In this class action, the complaint alleges that Mapfre Insurance Company and College Highway Insurance Agency, Inc. should provide payout for claims of lost business income.

The class for this action is all salons that have suffered business interruption and lost income as a result of Civil Authority Orders issued in response to the Covid-19 pandemic.

Plaintiff Albertina Guzman Picot, a hair salon, does business as Salon Cabellos. The salon was insured with Mapfre and College Highway. College Highway is wholly owned by Mapfre. The policy includes coverages for business personal property, business income, and extended special business income.

The complaint alleges, “The terms of the policy explicitly provide the insured with insurance coverage for actual loss of business income sustained, along with any actual, necessary and reasonable extra expenses incurred, when access to the Insured’s properties is specifically prohibited by Civil Authority Orders. This additional coverage is identified as coverage under ‘Civil Authority’.”

According to the complaint, “[t]he Policy is an all-risk policy, insofar as it provides that covered causes of loss under the policy provides coverage for all covered losses, including but not limited to direct physical loss and/or direct physical damage, unless a loss is specifically excluded or limited in the Policy.”

While the policy appears to contain a Virus Exclusion, the complaint asserts that it “was never intended … to pertain to a situation like the present global Pandemic of the Coronavirus and therefore does not exclude coverage in this matter.” It claims that the exclusion was developed as a response to the SARS epidemic, “which was not a Pandemic and not a global Pandemic…” The complaint also claims that the Virus Exclusion was only a clarification of existing law and was “fraudulently adopted, adhesionary, and unconscionable.”

Furthermore, the complaint alleges, “Access to [Salon Cabellos’s] business was prohibited by Civil Authority Orders and the Policy provides for coverage for actual loss of business sustained and actual expenses incurred as a covered loss caused by the prohibitions of the Civil Authority Orders in the area of [the] Insured Property.”

When Salon Cabellos submitted its claim to College Highway and Mapfre for losses due to closures mandated by civil authorities, it was told that the companies were denying Covid-19-related claims.

Juul and Altria Anticompetitive E-Cigarette Agreement Class Action

This antitrust class action brings suit against what it calls “horizontal competitors”—Altria Group, Inc., Altria Enterprises, LLC, and Juul Labs, Inc.—to eliminate competition by the Altria companies in the e-cigarette market. According to the complaint, this involved Juul and Altria agreeing that Altria would exit the market in exchange for partial ownership of Juul. The complaint calls this a “horizontal allocation of the market[,]” a market it claims Juul was monopolizing.

The class for this action is all persons or entities in the US and its territories who bought e-cigarettes directly from Juul, from October 5, 2018 until the anticompetitive effects of the defendants’ conduct stop.

The complaint’s claim, it says, “is not based on allegations of circumstantial evidence, but is instead based on explicit written agreements among the defendants—the ‘Relationship Agreement’, dated December 20, 2018; the ‘Amended Relationship Agreement’, dated January 28, 2020; and a commitment letter from Altria to Juul, dated October 5, 2018—that contained unequivocal non-compete provisions.”

According to the complaint, “[o]n April 1, 2020, the Federal Trade Commission (‘FTC’) filed an administrative complaint … challenging the lawfulness of both the agreement and the acquisition … and noting that the conduct in question violated Section 1 of the Sherman Act and Section 7 of the Clayton Act.”

Juul’s e-cigarettes consist of a rectangular device with a battery and temperature regulator and a “pod” of nicotine and flavored oil. The complaint alleges, “The system can deliver a nicotine peak in five minutes, which compares favorably with combustible cigarettes.” It is a closed system, in that it cannot be modified. Juul entered the market in 2015 and already had a 75% of it in October 2018.

The Altria Group, formerly known as Philip Morris Companies, Inc., was at one time the leading maker of traditional combustible cigarettes. With the decline of traditional smoking, it sought business in other markets. It began selling e-cigarettes through its subsidiary NuMark in 2013. At one time, it had 16% of the e-cigarette market, but that share declined. A statement from Altria’s CEO in February 2018 claimed, “We aspire to be the U.S. leader in authorized, non-combustible, reduced-risk products.”

When Altria sought to buy into Juul, the complaint says Juul refused to share the market with Altria: “As explained in the FTC Complaint, Juul insisted that a precondition for a purchase of a stake in the company was that the Altria Group exit the market. As the FTC put it … ‘[d]uring negotiations, [Juul] insisted, and Altria recognized, that Altria’s exit from the e-cigarette market was a non-negotiable condition for any deal. When Altria sought to weaken or remove any obligation to exit the market, [Juul] conveyed that any such attempt was completely unacceptable.’”

The complaint adds, “The Altria Group accepted this condition in a letter to Juul dated October 5, 2018 and began dismantling its e-cigarette operations…”

An agreement was signed in December 2018, with Altria gaining a 35% stake in Juul for $12.8 billion.