JUDICIAL:
HENRY AVOCADO CORPORATION, Plaintiff, v. Z.J.D. BROTHER, LLC & LONG ZHONG “MICHAEL” CHEN Defendants., No. 17CV4559ARRRLM, 2019 WL 1586865 (E.D.N.Y. Apr. 12, 2019);
Between April 24, 2017 and May 11, 2017, Henry Avocado Corporation (“plaintiff,” “Henry,” or “Henry Avocado”), an avocado distributor based in California, shipped 79,000 pounds of avocados to New York. Though both parties acknowledge that Henry has not yet been paid for these avocados, the identity of the debtor is the subject of considerable dispute. According to Henry, the avocados were sent to New York at the request of Z.J.D. Brother, LLC (“Z.J.D.”), a company that distributes food to sushi restaurants in New York. Z.J.D., by contrast, asserts that the produce was ordered by Johnny Avocado Incorporated (“Johnny” or “Johnny Avocado”), a third-party avocado wholesaler located in New York. Z.J.D. maintains that it never contracted with Henry directly, and its only role in the relevant transactions was to advance funds to Johnny so that Johnny could continue to supply avocados to Z.J.D. and its other customers.
In August 2017, Henry filed suit against Z.J.D. and its owner, Long Zhong “Michael” Chen (collectively, “defendants”), under the Perishable Agricultural Commodities Act (“PACA”). I denied defendants’ motion to dismiss plaintiff’s complaint in December 2017, and the parties proceeded to discovery. Now, both parties have filed cross motions for summary judgment. Because all of plaintiff’s claims turn on disputed questions of fact regarding the nature of the produce shipments, the underlying expectations of each party, and the communications between the parties, the motions were denied.
WildEarth Guardians v. Conner, No. 17-1334, 2019 WL 1592314 (10th Cir. Apr. 15, 2019);
The dispute before us concerns the Tennessee Creek Project (the Project), an effort of the United States Forest Service (the Service) in the San Isabel and White River National Forests to protect the forest from insects, disease, and fire; improve wildlife habitat; and maintain watershed conditions. In 2014 the Service published an environmental assessment (EA) of the Project, followed by a Decision Notice (DN) and Finding of No Significant Impact (FONSI). One of the EA’s many conclusions was that the Project was unlikely to adversely affect Canada lynx, and the DN/FONSI declared that the Project would not significantly impact the human environment.
WildEarth Guardians sought review in the United States District Court for the District of Colorado, arguing that the Service had violated the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., by failing in its EA to adequately assess the Project’s effects on lynx and by failing to prepare an environmental impact statement (EIS). The district court upheld the agency action. Exercising jurisdiction under 28 U.S.C. § 1291, the court affirms. The Service satisfied its NEPA obligations when it reasonably concluded in its EA that under a worst-case scenario the lynx would not be adversely affected by the Project and reasonably concluded that an EIS was not necessary.
Geidel v. De Smet Farm Mut. Ins. Co. of S. Dakota, 2019 S.D. 20; Delray Geidel was insured under a farm liability policy issued by De Smet Farm Mutual Insurance Company. He sold a portion of his farm property, and the purchaser constructed a hog confinement facility on that property. Geidel’s neighbors brought suit against him and the owner of the hog facility, alleging nuisance, trespass, and negligence. De Smet refused to defend Geidel against the neighbors’ lawsuit. Geidel retained counsel and successfully defended the lawsuit. He then filed a breach of contract action against De Smet, alleging De Smet had a duty to defend. The parties filed cross-motions for summary judgment, and the circuit court granted De Smet summary judgment. Geidel appeals. The court affirmed.
ANGELA KENNARD, Plaintiff, v. LAMB WESTON HOLDINGS, INC., Defendant., No. 18-CV-04665-YGR, 2019 WL 1586022 (N.D. Cal. Apr. 12, 2019)
Plaintiff is a California citizen who resides in San Francisco, California. Defendant is a Delaware corporation with its principal place of business located in Eagle, Idaho. Plaintiff brings this class action alleging that defendant “unlawfully and unfairly packag[ed] its ALEXIA brand SWEET POTATO fries WITH SEA SALT product [the ‘Alexia product’] in opaque containers that contain more than 50% empty space.”
Plaintiff contends that she purchased the Alexia product “several times during 2017 and 2018 in Daly City,” only to be “surprised when she opened the product that the container had more than 50% empty space, or slack-fill.” (Id. ¶ 3 (emphasis in original).) Plaintiff does not deny that the Alexia product labels accurately disclose the product’s net weight, the number of fries per serving, and the approximate number of servings per container. Namely, the package indicates that the bag has “[a]bout 6 servings per container” and that a serving size is “3 oz (84g/12 pieces).”2 Instead, plaintiff argues that the container size leads reasonable consumers to believe that there will be more fries than there actually are. (Id. ¶ 30.) Specifically, plaintiff avers that the Alexia product’s “packaging size” was a “material factor” in making her purchase decisions and claims she would not have purchased the Alexia product had she known the “true facts…concerning [d]efendant’s representations[.]” Because “[t]he containers (1) do not allow consumers to fully view its [sic] contents; and (2) contains [sic] nonfunctional slack fill[,]” plaintiff contends that the packaging is “per se illegal.”
Plaintiff filed her initial complaint on August 2, 2018. (Dkt. No. 1.) After defendant moved to dismiss and strike the complaint with prejudice pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(f), plaintiff filed a first amended complaint. Accordingly, the Court denied the motion to dismiss as moot. Defendant subsequently moved to dismiss the FAC, which the Court granted in part and denied in part, giving plaintiff leave to amend its claims under the Consumer Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750 et seq., the “unlawful” and “unfair” prongs of the Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq., and the False Advertising Law (“FAL”), Cal. Bus. & Prof. Code § 17500 et seq.
On January 15, 2019, plaintiff filed the operative SAC. Therein, plaintiff seeks to represent the following class of California consumers: All California residents who made retail purchases of Defendant’s ALEXIA brand SWEET POTATO fries product during the applicable limitations period up to and including final judgment in this action. The SAC is virtually identical to plaintiff’s FAC, with the exception of: (i) six additional paragraphs concerning each statutory slack fill safe harbor provision under California Business and Professions Code section 12606.2(c)(1)–(6); and (ii) allegations regarding consumers’ handling practices as to frozen foods. Plaintiff asserts the same three claims for relief as in his FAC, namely violations of the CLRA, UCL, and FAL. Defendant moves to dismiss each. Border City has not persuaded the Court that it has subject-matter jurisdiction over this action. Accordingly, the Court (1) dismisses Border City’s Complaint without prejudice due a lack of subject-matter jurisdiction and (2) denies Border City’s motion for a temporary restraining order and/or preliminary injunction as moot.
REGULATORY:
Correcting amendment: Food and Nutrition Service (FNS), USDA; This document contains corrections to the final rule entitled “Simplified Cost Accounting and Other Actions to Reduce Paperwork in the Summer Food Service Program,” published in the Federal Register on June 1, 2018. These corrections do not impose new program requirements. Info HERE
Correcting amendment: Food and Nutrition Service (FNS), USDA; This document contains corrections to the final rule entitled “Simplified Cost Accounting and Other Actions to Reduce Paperwork in the Summer Food Service Program,” published in the Federal Register on June 1, 2018. These corrections do not impose new program requirements. Info HERE
Proposed rule: Agricultural Marketing Service, USDA; This proposed rule would implement a recommendation from the Florida Tomato Committee (Committee) to change the handling regulations under the Marketing Order regulating the handling of tomatoes grown in Florida. This action would remove the standard weight requirements for tomato containers under the handling regulations. Info HERE
Notice and request for comments: National Agricultural Statistics Service, USDA; In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the National Agricultural Statistics Service (NASS) to request revision and extension of a currently approved information collection, the Vegetable Surveys Program. Revision to burden hours will be needed due to changes in the size of the target population, sampling design, and/or questionnaire length. Some of the vegetable production surveys will incorporate sampling of the total population of producers, while the processing surveys will involve a total enumeration of the entire population. Changes are being made to the commodities and States included in this group of surveys based on the comprehensive program review, which took place following the completion of the 2017 Census of Agriculture. Changes are also being made to some of the questionnaires to accommodate changes in the industry and to make the questionnaires easier for the respondent to complete. This should help to reduce respondent burden and improve the overall response rates. Info HERE
Proposed rule: Food Safety and Inspection Service, USDA; The Food Safety and Inspection Service (FSIS) is proposing to amend its labeling regulations to remove provisions that require packages of meat or poultry products that contain at least one pound or one pint, but less than four pounds or one gallon, to express the net weight or net contents in two different units of measurement on the product label. FSIS is taking this action in response to a petition submitted on behalf of a small meat processing establishment. After reviewing these provisions, FSIS has determined that it is not necessary for labels of any meat or poultry products to bear dual statements of weight or content, using more than one unit of measurement, to convey the accurate weight or amount of the product to consumers. Info HERE
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