Week 5 - Is the American Heart Association check-mark logo misleading?

Warner v Starkist
1:18-cv-00406
Northern District of New York

Plaintiff Abraham Jacob Warner filed this lawsuit in April 2018, alleging that the American Heart Association [AMA] check-mark logo included on cans of StarKist tuna is misleading to consumers because it makes consumers believe that StarKist tuna is healthier than other tuna without the label.  In fact, the AMA label is a paid endorsement.  If a product meets the AMA standards, the company can pay the AMA for the right to use the label on its products and in its advertising.  Federal law requires companies using a paid endorsement to make a statement in close proximity to the claim, informing consumers that the organization or individual was compensated for the endorsement. 

Oddly, this is the only photo of a can of StarKist tuna I could find on Wikimedia Commons

The AHA responded with a statement that participating food manufacturers pay an administrative fee and an annual fee to use the logo.  The fees offset the costs and expenses of the program, including program management and the testing and certification of products.  Any brand or company can use the logo if the product meets the requirements.

StarKist filed a Motion to Dismiss the lawsuit, stating that the AMA logo is a “certification process, not an endorsement.”  The motion also points out that Plaintiff's complaint does not allege that the StarKist products don't qualify for the AMA logo, or that its advertising is otherwise false.

Week 4 - Does ginger ale contain real ginger?

Julie Fletcher v Dr. Pepper Snapple Group
Case number 1:18-cv-00766 -EAW
Western District of New York

Ms. Fletcher alleges that ginger has a well-known health benefit of calming an upset stomach, and she therefore purchased Canada Dry Ginger Ale for her children because it was a healthier alternative to soda.

Her lawsuit, filed in New York federal court in July 2018, alleges false advertising because Canada Dry ginger ale actually contains no ginger.  The front of the label says “Made from Real Ginger” but the ingredient list on the back of the label does not contain the word ginger.

The label does contain the words “natural flavors” and one of the natural flavors is ginger flavor extract.  Therefore, the company alleges that the product is made from real ginger.  Ms. Fletcher alleges that the amount of ginger in the finished product sold to consumers is 2 parts per million, a miniscule amount that would provide no health benefits.

The Made From Real Ginger ad campaign began in 2007 and in the first 6 months thereafter, sales rose by 9%.

“DPSG prominently made the claim ‘MADE FROM REAL GINGER’ on the front label panel of all of its Canada Dry Ginger Ale cans and bottles because its marketing research revealed that the claim would cultivate a wholesome and healthful image for Canada Dry and promote the sale of its soft drink in a market environment where consumers were fleeing ‘regular’ sodas due to increasing concerns about the health problems they cause.”

Rather than fighting the case [which is time consuming and expensive], the company decided in January 2019 to offer a settlement, including removing the “made from real ginger” label and advertising, and a payment to “injured consumers” of $5.20 per household if you don't have proof of purchase, or $40 per household if you do have proof of purchase.

Week 3 – Hold the cheese, reduce the price?

Kissner v McDonald's
Case number 18-cv-61026-WPD
Southern District of Florida 

On the McDonald's app, you can order a Quarter Pounder with cheese or without cheese.  If you go inside a McDonald's store, you only have the option of buying the Quarter Pounder with cheese.  Sure, you can customize and request it without cheese, but you won't receive a reduced price.

Two Florida customers didn't like that.  On May 8, 2018, they filed a class-action lawsuit against McDonald's for $5 million.  “McDonald's practices of forcing customers to pay for cheese they do not receive as a condition of purchasing a Quarter Pounder ...” is alleged to be a violation of several laws.

On November 2, 2018, the court dismissed the lawsuit, noting that Plaintiffs claimed McDonald’s had been unjustly enriched “to the extent of the amount it receives for cheese that is not delivered to its customers. First, this allegation is nonsensical as the cheese 'not delivered' to the customer has been requested by that customer to not be delivered ...”

“If a particular McDonald’s restaurant does not list an item on its counter or drive-through menu, and a customer placing his order at the counter or drive-through requests a customization of the offered product, a customer is not being deceived or otherwise treated unfairly by not being charged less.”

Bottom line – the price includes certain ingredients.  The customer can choose to remove some of those ingredients, but it's not illegal for the price to remain the same.

South Florida Sun-Sentinel

The Legal Intelligencer

Week 2 - How big is a piece of 4x4 lumber?

Abramov v Home Depot
Case number 1:17-cv-01860
Northern District of Illinois

How big is a piece of 4x4 lumber?

If you said 4x4, you'd be wrong. The term 4x4 refers to the size when it's originally rough-cut from the tree.  Once it's planed [smoothed], it measures 3-1/2 x 3-1/2.

This has been the industry standard since at least the 1950s, if not for the past 100 years.

So if you actually bought a board that was 4” x 4”, it wouldn't fit where you intended to put it.  Which proves that the Plaintiff who filed the lawsuit against Home Depot in 2017, claiming the store falsely advertised the dimensions of its boards, did not actually intend to build anything with the $5 million the lawsuit demanded.

A similar lawsuit against Menards was dismissed in September 2017.

On March 12, 2018, a federal court dismissed [threw out] the lawsuit against Home Depot.  The judge said the term “4x4” would not have misled a reasonable consumer.  Which implies that these two Plaintiffs were not … well, you get the idea.

Week 1 - Starbucks class action - underfilled lattes

Strumlauf, et al. v. Starbucks Corp. 
Case No. 4:16-cv-01306-YGR,
US District Court for the Northern District of California

Class-action lawsuit filed in 2016 alleges false advertising – Starbucks underfills its lattes by 25% and overfills with foam, thereby overcharging its customers.  The lattes are advertised as 12 ounces, 16 ounces, and 20 ounces, but the lawsuit alleges that they routinely and intentionally fall short of that measurement.  The lawsuit claims Starbucks did this to save money on milk, its most expensive ingredient.

Click here to read the actual lawsuit

Click here for an article about the lawsuit

On January 5, 2018, the federal court dismissed the lawsuit, or in lay-person words, the case was thrown out.  The judge wrote that (1) heated milk expands, and its expanded volume met the advertised measurement, and (2) people who buy lattes expect them to contain foam on the top.

Another current Starbucks lawsuit:

The Starbucks “All Natural” Gummies Class Action Lawsuit
Starbucks deceives customers into believing that their gummy snack packs are made with “all-natural” flavors as opposed to artificial flavoring.
Sandra Brown v. Starbucks Corp.
Case No. 3:18-cv-02286
US District Court for the Southern District of California
Filed October 3, 2018
Click here to read the actual lawsuit

Welcome to the blog 2019!

This past year, I posted every Monday about each of the 50 US states, plus DC and US territories, including interesting information and trivia.  I hope you enjoyed reading!

In 2019, I will post every Monday about a “frivolous” lawsuit which either began or ended in 2018.

What is a frivolous lawsuit?  A frivolous lawsuit is any lawsuit that is filed with the intention of harassing, annoying, or disturbing the opposing party, or in which the plaintiff knows there is little or no chance of the lawsuit actually succeeding if pursued in court.

Although most people will agree that certain lawsuits are frivolous, some of these lawsuits resulted in the plaintiffs obtaining money.  And sometimes, a lawsuit which appears frivolous actually isn't.

As an example of an older “frivolous” lawsuit, most of us remember when a 79yo lady sued McDonald's because of burns she sustained when she bought a cup of hot coffee from the drive-thru and it spilled in her lap, (1) causing third degree burns which required extensive surgery and skin grafts, and almost killed her, or (2) people need to realize that hot coffee is just that – hot – and should expect to be burned if they spill it on themselves, duh.

In 1994 [can you believe this is 25 years ago?!], a New Mexico jury determined that plaintiff was 20% responsible for her own injuries and McDonald's was 80% responsible, and awarded the lady almost $3 million.  The court reduced that amount to $640,000.  Thereafter, the parties reached a confidential settlement to avoid the further legal expense of a McDonald's appeal.

Click here for plaintiff's side of the case, which actually looks very compelling, including that McDonald's intentionally sold the coffee at 180-190 degrees which is capable of causing third degree burns in three seconds [boiling point is 212 degrees, home-brewed coffee is generally 140 degrees, reducing the temperature to 155 degrees would have avoided severe burns entirely], and McDonald's had received over 700 previous consumer complaints about coffee burning them and had done nothing.  Plaintiff had initially just wanted $20,000 to cover her medical expenses.  McDonald's offered $800.

Here's to a safe and happy 2019!

December - Week 52 - US Territories

Guam

Date became a US territory – August 1, 1950 (as unincorporated territory), April 11, 1899 [acquired from Spain]
Postal abbreviation – GU
Capital – Hagåtña
Area – 570.7 [smaller than Rhode Island]
Population as of census 2010 – 159,358 [lower than every state]
Population density per square mile – 759.9 [about as crowded as Connecticut, the 4th most crowded state]
Area code – 671
Zip codes – 96910 - 96932
Official nickname – Island of Warriers, or Tano 'l ManChamorro meaning 'Land of the Chamorros'
Official motto – Where America's Day Begins [it is located on the other side of the international date line] 

Flag of Guam

Fun facts
-Guam does not have sand. The beaches are coral.
-It is the largest island in Micronesia.
-It is approximately 30 miles long, and its width varies between 4 and 12 miles.
-Guamanians are US citizens but do not vote in US presidential elections.

Puerto Rico

 

Date became a US territory – March 2, 1917 (as unincorporated territory, a commonwealth), April 11, 1899 [acquired from Spain], it has voted to become the 51st US state but that is not yet official
Postal abbreviation – PR
Capital – San Juan
Area – 5,324.7 [larger than only Delaware and Rhode Island]
Population as of census 2010 – 3,725,789 [approximately the same as Connecticut]
Population density per square mile – 1,088.1 [only District of Columbia and New Jersey are more crowded]
Area code – 787, 939
Zip codes – 00600 – 00799 and 00900 - 00999
Official nickname – Island of Enchantment
Official motto – "JOANNES EST NOMEN EJUS" means "John is his name", referring to St. John the Baptist or San Juan Bautista, the original name of the island. 

Flag of Puerto Rico

Fun facts
-The official name is the Commonwealth of Puerto Rico.
-The temperature varies between 70 and 80 degrees Fahrenheit all year round.
-The largest telescope in the world is located in Puerto Rico. It is used to look at asteroids and determine if any get too close to the Earth.
-Puerto Ricans are US citizens but do not vote in US presidential elections.
-Puerto Rico is an archipelago consisting of the main island of Puerto Rico, smaller islands Vieques and Culebra, and 140+ other islands, most of which are uninhabited.
-Puerto Rico has the only tropical rainforest in the US Forest System, and has no snakes.

US Virgin Islands

Date became a US territory – March 31, 1917 (as unincorporated territory) [purchased from Denmark]
Postal abbreviation – VI
Capital – Charlotte Amalie on the island of St. Thomas
Area – 732.8 [about twice the size of the District of Columbia]
Population as of census 2010 – 106,405 [lower than Guam]
Population density per square mile – 791.7 [about the same as Guam]
Area code – 340
Zip codes – 00801 - 00851
Official nickname – 'Rock City' for St. Thomas, 'Love City' for St. John, and 'Twin City' for St. Croix.
Official motto – "United in Pride and Hope" 

Flag of the US Virgin Islands

Fun facts
-The US purchased the islands from Denmark for $25 million in gold.
-The US Virgin Islands is the only location in the United States where you drive on the left side of the road.
-Point Udall is the Easternmost Point in the United States. 
-There is an Underwater National Park off the coast of St. John. 
-Virgin Islanders are US citizens but do not vote in US presidential elections.
-The US Virgin Islands is an archipelago consisting of three main islands – St. Thomas, St. John, and St. Croix – and 50+ other islands.

American Samoa

Date became a US territory – April 17, 1900 (as unincorporated territory)
Postal abbreviation – AS
Capital – Pago Pago
Area – 581.1 [about half the size of the US Virgin Islands, slightly larger than the District of Columbia]
Population as of census 2010 – 55,519 [approximately half of the US Virgin Islands]
Population density per square mile – 726.7 [about the same as Connecticut]
Area code – 684
Zip code – 96799
Official nickname – The Heart of Polynesia
Official motto – "Sāmoa, Muamua Le Atua" which means “Samoa, Let God be First” 

Flag of American Samoa

Fun facts
-American Samoa has earned the nickname "Football Island," as the islands produce more American football players than anywhere else in the world.
-American Samoa consists of five volcanic islands (Tutuila, Aunu'u, and the Manu'a islands of Ofu, Olosega, and Ta'u) and two coral atolls (Rose and Swains atolls)
-American Samoa is located 2,300 miles south of Hawaii, making it the most southern point in the United States.
-Bats are the only native species of mammals found in American Samoa. The Samoan flying fox bat is only found in Samoa and Fiji. They are active both day and night, and have a 3 foot wingspan.
-American Samoa's waters were used for the splash landings for US astronauts during the 60s and 70s.
-It rains 300 days each year 

Northern Mariana Islands

Date became a US territory – November 4, 1986 (as unincorporated territory, a commonwealth), conquered by the US in 1947 during WWII
Postal abbreviation – MP
Capital – Capitol Hill on the island of Saipan
Area – 1,975.7 [almost as large as Guam]
Population as of census 2010 – 53,883 [smallest of all states and territories]
Population density per square mile – 295.7 [about the same as Ohio]
Area code – 670
Zip codes – 96950 - 96952
Official nickname – Pearl of Saipan

Flag of Northern Mariana Islands

Fun facts
-The Northern Mariana Islands, plus Guam, comprise the Mariana Islands archipelago.
-The island chain geographically consists of two groups:  a northern group of ten volcanic main islands, all currently uninhabited; and a southern group of five coralline limestone islands (Rota, Aguijan, Tinian, and Saipan, along with Guam), all inhabited except Aguijan.
-The temperature remains almost constant during the year.  The rainy season is July through November and the dry season is December through June.  Ocean temperature is usually around 80 degrees.
-The atomic bombs dropped on the Japanese cities of Hiroshima and Nagasaki in 1945 were loaded onto war planes on the island of Tinian.
-Northern Marianans are US citizens but do not vote in US presidential elections.