Author Archives: Leah A. Brndjar

Proposed FDA Rule Changes Leading Food Companies to Take Proactive Measures

In December 2013, the FDA proposed comprehensive changes to the Food Safety and Modernization Act of 2008, with the intention of standardizing the processes for growing, harvesting, packing, and holding foods for human consumption. A summary of the proposals can be found on the FDA’s website. Food companies may have significant internal changes ahead in order to achieve compliance, should the proposed rules be adopted. In anticipation of that, some companies are already taking action – and it may prove to be a wise…

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Remember: Ascertainable Loss Needed for NJ Consumer Fraud Act Claim

Last week, the Appellate Division upheld the dismissal of a claim under the New Jersey Consumer Fraud Act (CFA) for failure to state a claim upon which relief can be granted.  In Schroeck v. Knight Mgmt. Ins. Servs., the Appellate Court affirmed Judge Willis Currier’s determination that the plaintiff had not suffered an ascertainable loss, as is required by the CFA, and thus could not pursue a CFA claim. This case arose in the context of a motor vehicle purchase.  The plaintiff purchased a…

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FDA’s Refusal to Define “Natural” Opens the Door for More Litigation

On Monday, the FDA issued a  letter in response to three judges’ request, including Judge Kevin McNulty of the District of New Jersey, to clarify the term “natural” as it applies to food labeling requirements.  In its letter, the FDA opted not to create a formal definition for the terms “Natural,” “All Natural” or “100% Natural,” instead relying upon its 1993 policy, in short, that it means “nothing artificial or synthetic… has been included in, or has been added to, a food that would not…

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Hedonic Damages Expert Not Worth Plaintiff’s Money

A recent Hudson County Superior Court decision affirmed a prior New Jersey rulings that an expert testifying to hedonic damages should be barred.  In Johnson v. Redd, the plaintiffs sought to introduce expert testimony from Stanley V. Smith, Ph.D., to support their claims for loss of the pleasure of life ( i.e., hedonic damages).  The defendants filed a motion in limine to bar the testimony, arguing that it was not proper under New Jersey law. The court held an admissibility hearing and reviewed not…

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Attorney-Fee Provision in Pre-Printed Form Contracts Runs Afoul of NJ Consumer Fraud Act

The New Jersey Supreme Court recently issued an opinion addressing whether the inclusion of attorneys’ fees provisions in pre-printed, form contracts can form the basis for a claim under the New Jersey Consumer Fraud Act.  According to the Court, the answer to this is yes.  The case, Green v. Morgan Props., 2013 N.J. Lexis 848 (Sept. 17, 2013), involved a group of tenants that filed suit again their landlord and the landlord’s in-house counsel for alleged violations of the Anti-Eviction Act (AEA), the Consumer Fraud…

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“Natural” Label Continues To Be Problematic

Recently, there has been a nationwide push by consumer advocates to litigate consumer fraud claims against companies selling products labeled as ‘natural,’ as discussed in previous blog posts here.  Typically, plaintiffs seek damages for violations of consumer protection legislation and allege false advertising or mis-labeling of the products. This week, a New Jersey District Court judge allowed a case to proceed, in part, against Church & Dwight Co. for deodorant sold under the Arm & Hammer Essentials Natural brand. The plaintiffs argued in Trewin,

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TCCWNA – Will it Apply to Omissions too?

Recently the NJ Supreme Court issued a highly anticipated opinion on the Truth in Consumer Contract Warranty and Notice Act (“TCCWNA”).  See  Shelton v. Restaurant.com, 2013 NJ Lexis 726.  TCCWNA was passed in 1982, but was largely untouched until the mid-2000s, and now serves as a mechanism through which class actions are often filed against businesses that are alleged to have violated “clearly established” consumer rights.  The Shelton holding provided some long-awaited clarification of a broadly interpreted statute; however, it also created more questions…

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Not a Pass-Through Retailer? Indemnification Unlikely

The question of indemnification often arises in product liability suits, when a retailer that sells a product that is the subject of a product liability claim may look to the manufacturer of that product to indemnify it.  While some retailers and manufacturers have contractual relationships that provide for such indemnification, some other manufacturers may elect to make the business decision to indemnify their retailers even in the absence of a contractual obligation to do so. But what happens when there is no contractual indemnification agreement…

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