Consumer Fraud - False Advertising "Pure & Natural" Orange Juice

A federal judge on Wednesday allowed multidistrict consumer-fraud litigation to go forward against Tropicana over allegedly false claims about the naturalness of its orange juice.

U.S. District Judge Dennis Cavanaugh in Newark declined to dismiss most of the counts in In re: Tropicana Orange Juice Marketing and Sales Practices Litigation, MDL No. 2353, consolidated in New Jersey.

The plaintiffs allege that Tropicana's product, though labeled "100 percent pure and natural," is not. "It is instead a product that is scientifically engineered in laboratories ... which explains its shelf life of more than two months," according to Dennis Lynch of Oakland, N.J., the first plaintiff to sue.

The plaintiffs, who seek to assert claims on behalf of all Tropicana purchasers, claim the juice is processed and contains coloring and flavoring.

The plaintiffs contend that the juice is not all natural because it undergoes "deaeration," or removal of naturally occurring air; deactivation of natural enzymes and microbes through pasteurization; and long-term storage.

Most important, according to the plaintiffs, "flavor packs" containing oils and peels from imported oranges are added to restore flavor and aroma lost during processing.

They assert charges under common law, the New Jersey Consumer Fraud Act and other statutes.

A year ago, the U.S. Judicial Panel on Multidistrict Litigation in Washington, D.C., centralized the suits in New Jersey, where several were filed.

Tropicana's parent company, Purchase, N.Y.-based PepsiCo. Inc., also is named.

In September, Tropicana moved to dismiss the consolidated amended complaint, contending that the claims are deficient and pre-empted by federal law governing food labeling requirements.

On Wednesday, Cavanaugh upheld most of the counts.

"Because Plaintiffs' claims involve an alleged failure to meet the requirements of federal law, and not a standard that deviated from or adds to such requirements, these claims are not preempted," he wrote.

Tropicana fell short of overcoming a presumption that federal law is not intended to supplant state law, and the plaintiffs aren't trying to impose labeling requirements beyond what is contained in federal regulations, Cavanaugh said.

Cavanaugh also dispensed with Tropicana's contention that, because its manufacturing and labeling processes are approved by the Food and Drug Administration, the safe harbor doctrine bars the claims.

He noted that the plaintiffs allege that Tropicana failed to follow FDA regulations.

Tropicana also argued that the plaintiffs did not sufficiently plead that their reasonable expectations in purchasing the product weren't met.

Because the containers are marked "pasteurized," it's unreasonable for a consumer to expect that "100 percent pure and natural" juice is the same as fresh-squeezed orange juice, the company said.

But that labeling "does not inherently 'provide a shield for liability for the deception' that this product has no added flavoring or is 100 percent pure and natural orange juice," Cavanaugh wrote.

He added that there's no evidence that consumers understand "the intricacies relating to the shelf life and processing of the orange juice."

The judge also said, contrary to Tropicana's contentions, that the plaintiffs satisfied the heightened pleading standard for fraud by providing the specifics of what product was purchased, when and where.

In addition, the plaintiffs specifically pleaded an ascertainable loss under the CFA and its New York counterpart, Cavanaugh said, noting that payment of a premium price and demonstration of a misleading advertisement by themselves may be sufficient.

The judge also upheld common-law claims of breach of express warranty and unjust enrichment.

Cavanaugh struck one plaintiff's claims — seeking punitive damages under a Wisconsin consumer fraud statute — and one count that asserted "various" unspecified state consumer protection statutes.

Caroline Bartlett of Carella, Byrne, Cecchi, Olstein, Brody & Agnello in Roseland, the plaintiff lead counsel, says there have been no settlement discussions yet.

"I think the judge got everything right," Bartlett adds. "As we move forward to discovery, we look forward to presenting the case."

Liza Walsh of Connell Foley in Roseland, Tropicana's counsel, declines comment through an assistant.

The company issued a statement saying, "Tropicana Pure Premium remains committed to offering great-tasting 100 percent Florida orange juice with no added sugar, water or preservatives. We take the faith that consumers place in our products seriously and are committed to full compliance with labeling laws and regulations."

 

Link to article

 

 

For additional information regarding your consumer fraud questions, please call the office for your free consultation at 800-709-1131 or visit the website www.simonattorneys.com

Consumer Fraud - TGI Friday's Accused of Cheap Drinks

A putative consumer fraud class action accuses 13 T.G.I. Friday's restaurants in New Jersey of selling cheap liquor masquerading as high-end brands like Grey Goose Vodka and Cuervo Gold Tequila and charging premium prices.

The suit, Pasieka v. Briad Restaurant Group, MER-L-1151-13, was filed in Mercer County Superior Court on May 24, two days after the state Division of Alcohol and Beverage Control raided 29 establishments in the culmination of a year-long investigation dubbed "Operation Swill."

Plaintiffs Kristi Pasieka and Nicole Ruglio, of Monmouth County, seek to represent an estimated more than 5,000 people who, between May 22, 2012 and May 22, 2013, ordered and were charged for premium liquors at any one of the raided T.G.I. Friday's, located in Old Bridge, West Orange, East Windsor, North Brunswick, Piscataway, Freehold, Marlboro, Hazlet, East Hanover, Linden, Hamilton, Springfield and Clifton.

The plaintiffs claim that owner and operator Briad Group, of Livingston, runs the franchises according to a uniform set of procedures and policies, including a "concerted and deliberate policy … to inflate its profits from liquor sales by charging customers premium prices for allegedly premium liquor and then substituting a cheaper, cut rate brand for the premium liquor brand ordered by the customer."

They say the fact that the ABC found the same practice occurred at multiple franchise locations on more than one occasion and after several rounds of tests shows that the substitutions were not the work of a rogue bartender or bar manager, "but rather was a common course of conduct and uniform policy implemented by the Briad Group" and consistently followed" at all of the raided locations.

Both named plaintiffs claim they were scammed at the T.G.I. Friday's in Hamilton. Pasieka says she bought a purported Grey Goose vodka in March 2013, while Ruglio claims she purchased what she thought was Cuervo Gold Tequila on one visit and Kettle One Vodka on another.

They allege the uniform policy or common course of conduct constituted an unconscionable commercial practice under the Consumer Fraud Act and that they each suffered an ascertainable loss, as required by the statute: the difference between the premium price they paid and the lesser value of the cut-rate liquor they were served.

The suit seeks reimbursement, treble damages and legal fees.

The case has been assigned to Judge Darlene Pereksta.

The plaintiff's lawyer, Stephen DeNittis, says "this is classic consumer fraud."

He calls the estimate of a 5,000-member class "conservative," adding that he would be open to extending the class period if he obtains information indicating the practice went on longer than one year.

Other potential plaintiffs have contacted him and he is contemplating adding more locations, he says.

Briad president Rick Barbrick released a statement saying the company had not yet reviewed the complaint and was thus, "not clear regarding its merits," but "we reiterate our ongoing mission to ensure that all of our strict bar and beverage standards are being followed and that our commitment to integrity is being adhered to in all actions."

Barbrick also said: "Briad will take the steps necessary to correct issues identified through our investigation, including the complete retraining of our teams so that guests have full confidence in the quality of our food, drink and service."

In a separate statement, T.G.I. Friday's president Ricky Richardson called the ABC allegations "very disturbing" and, if true, "a violation of our company's values and our extensive bar and beverage standards which are designed to deliver the highest guest experience in our restaurants."

Richardson further stated "We have zero tolerance for actions that undermine the trust of our guests and call into question the reputation we have built up over the past 48 years."

Operation Swill began with customer complaints and a confidential informant and involved sending investigators to 63 licensed establishments throughout the state where they ordered drinks "neat" — with no ice or mixer — and tested 150 samples with a portable device that can provide quick preliminary results. Suspect samples were then sent to the brand manufacturers for further testing. Thirty samples were found to be misbranded.

The ABC claims one drink was rubbing alcohol with caramel coloring but did not identify the source or if it was a T.G.I. Friday's.

The May 22 raids were carried out by more than 100 state employees who seized all open bottles of more than 20 premium brands, about 1,000 bottles in all.

The Attorney General's Office and ABC decline comment through spokeswoman Rachel Goemaat.

DeNittis says he is helped by a a 2011 Appellate Division ruling, in Dugan v. T.G.I. Friday's, that allowed a putative class action under the Consumer Fraud Act to go forward against T.G.I. Friday's over its alleged practice of charging more for drinks in the dining area than at the bar. Customers allegedly experienced sticker shock when they got the check because drink prices were not listed on the menu.

The court rejected T.G.I. Friday's argument that the Consumer Fraud Act did not apply because alcoholic beverage sales are regulated by state alcohol laws, finding no conflict between the statutory schemes. The case is ongoing.

 

Link to article

 

 

For additional information regarding your consumer fraud questions, please call the office for your free consultation at 800-709-1131 or visit the website www.simonattorneys.com

Criminal - Related Crimes May Not Be Eligible For Expungement

COURT GIVES GLOSS ON WHAT MAKES RELATED CRIMES NONEXPUNGEABLE
A state appeals court on Monday laid down some ground rules for deciding whether two related but nonconcurrent crimes are eligible for expungement. The Appellate Division reversed an order expunging convictions relating to a Medicaid-fraud scheme, finding the petitioner did not meet his burden of proving the underlying acts were concurrent. At issue in In re R.Z., A-4253-11, is the meaning of N.J.S.A. 2C:52-2(a), which allows expungement of an indictable conviction only if the petitioner "has not been convicted of any prior or subsequent crime[.]"

 

For further reading, click here

 

For additional information regarding your criminal questions, please call the office for your free consultation at 800-709-1131 or visit the website www.simonattorneys.com

 

 

 

 

Consumer Fraud - Used Car History

CONSUMER FRAUD ACT VIOLATED BY NOT REVEALING USED CAR'S HISTORY

In an apparent ruling of first impression in New Jersey, a car dealer has been held in violation of the Consumer Fraud Act for selling a used car without disclosing its prior use as a loaner. Morris County Superior Court Judge Rosemary Ramsay denied defense motions for remittitur and a new trial on Dec. 14 in the case, in which a jury awarded the plaintiff treble damages of $30,000. Ramsay also awarded $45,202 in fees and expenses, in Montgomery v. Millenium Auto Group, MRS-L-2839-10. Research by both sides found that no other court has ruled on whether the statute applies to the failure to disclose that a used car was a loaner.

 

Link to article

 

For additional information regarding your consumer fraud questions, please call the office for your free consultation at 800-709-1131 or visit the website simonattorneys.com

Colgate-Palmolive advertising fraud

CLASS SUIT ALLEGES FRAUD IN ADVERTISING OF COLGATE-PALMOLIVE ANTIBACTERIAL SOAP

A putative class action claims Colgate-Palmolive's antibacterial liquid hand soap has a dirty little secret: It's not a better germ killer than ordinary soap. The company touts Softsoap Antibacterial as killing 99 percent of germs, even though it is no more effective than products that do not contain an antimicrobial agent, the plaintiffs allege in Donohue v. Colgate Palmolive Co., 11-cv-7026. The suit, filed Friday in federal court in Camden, points to university and government findings that Softsoap's active ingredient gives no edge over other soaps and may be harmful. Companies using triclosan say it is safe, though the Environmental Protection Agency registers it as a pesticide and considers it to pose risks to human health and the environment, the suit claims, adding that some countries have banned or restricted its use.

Link to article

If you are a victim of fraud or have been accused of fraud, contact our offices at the Simon Law Group for your free consultation 800-709-1131 or you may submit your information online www.simonattorneys.com

 

Landlord charges tenants for his attorney's fees

LANDLORD'S PASS-ALONG OF FLAT LEGAL FEE TO TENANTS RULED ILLEGAL FEE SPLITTING

A state appeals court on Thursday reinstated a class action on behalf of apartment tenants who were charged a flat $400 fee any time the landlord consulted an in-house attorney to enforce lease provisions. To charge a flat rate greater than the cost of the representation "runs afoul of the general proscription that an attorney's fee may not be shared with a non-attorney," the Appellate Division said in Green v. Morgan Properties, A-3203-10. The court found the plaintiffs stated viable claims for consumer fraud and negligent representation by alleging the landlord imposed charges for legal services that exceeded the representation cost.

Link to article

If you have questions about Landlord & Tenant issues, call our office 800-709-1131 or you can submit your information on our website www.simonattorneys.com

Supreme Court Justice Writes His Opinions in Rhymes

A Pennsylvania Supreme Court justice known for opinions written in rhyme has done it again. Justice J. Michael Eakin produced six pages of verse in six-line stanzas, concluding that a man's attempt to deposit a forged check appearing to be from State Farm didn't constitute insurance fraud. "Sentenced on the other crimes, he surely won't go free, but we find he can't be guilty of this final felony," Eakin wrote for the Court. "Convictions for the forgery and theft are approbated — the sentence for insurance fraud, however, is vacated. The case must be remanded for resentencing, we find, so the trial judge may impose the result he originally had in mind."

NJLJ 12/30/2011

RHYMING JUSTICE PENS INSURANCE FRAUD OPINION

For additional information regarding your individual legal questions, please call the office for your free consultation at 800-709-1131 or visit the website simonattorneys.com

Little League Bat considered fraud?

LITTLE LEAGUE PARENTS WHIFF IN SUIT CLAIMING FALSE ADVERTISING OF BATS

Parents who bought high-powered composite bats they claim were mislabeled and falsely advertised for youth baseball use have struck out with their federal putative class action suit, though the game isn't over yet. Parents bought the composite bats for as much as $300 each, only to see them banned by Little League International and the Babe Ruth League.The suit's claims of consumer fraud, breach of warranty, unjust enrichment and negligence were not supported by the pleadings, District Judge Mary Cooper said in dismissing the case, Pappalardo v. Combat Sports, Inc., 11-cv-1320. The plaintiffs may move for leave to file a second-amended complaint within 45 days but will have to address "why such amendment would not be futile in light of this Memorandum Opinion," Cooper said.

For a link to this article: Click here

If you feel you are the subject of fraud, contact our litigation attorneys at 800-709-1131 for your free consultation.  Alternatively, you may submit your request via our website, www.simonattorneys.com

 

Joint Account Freezing By Wells Fargo A Cause For Suit

SUIT CHALLENGING WELLS FARGO POLICY OF FREEZING JOINT ACCOUNTS CAN PROCEED

A putative consumer fraud class action can go forward over Wells Fargo Bank's policy of freezing joint accounts when a bankruptcy is filed. District Judge Anne Thompson in Trenton on Monday denied the bank's motion to dismiss, Coiro v. Wachovia Bank, 11-cv-3587, finding its defenses turned on factual issues that couldn't be decided this early in the case. Lead plaintiff Josephine Coiro of Jackson accuses the bank of turning a profit by freezing joint accounts without prior notice — a practice she calls equivalent to the bank's granting itself "ex parte restraining orders on the funds of innocent third parties." Coiro seeks to represent a class of nondebtor joint account holders in New Jersey who have had their bank accounts frozen since July 1, 2005, as a result of the freeze policy and estimates the class size as at least several hundred.

 

NJLJ 11/2/2011 Litigation Brew Over Wells Fargo's Policy of Freezing Joint Accounts

 

For additional information regarding your individual legal questions, please call the office for your free consultation at 800-709-1131 or visit the website simonattorneys.com

Bankruptcy Fraud

CRIMINAL LAW AND PROCEDURE

14-2-4021 State v. Diorio, App. Div. (Graves, J.A.D.) (31 pp.) We affirm defendant's convictions for his role in a planned bankruptcy, also known as a "bust-out" scheme. We find that the indictment was returned within the statute-of-limitations period because the theft by deception was not completed until the contractual period for repayment had ended, not when the goods were received. Additionally, we reject defendant's argument that an oral plea agreement existed.

From the New Jersey Judiciary, Thursday, October 20, 2011

For legal representation, contact the Simon Law Group 800-709-1131

http://www.simonattorneys.com/bankruptcy/

http://www.simonattorneys.com/criminal__municipal_court/