Boston federal district court judge Michael Ponsor issued a 21-page ruling on Wednesday dismissing consolidated class action claims that eight food and beverage companies, including the Coca-Cola Company and Del Monte Corporation, misled consumers about the safety of packaged juice and fruit products.
In 2010, a nonprofit called the Environmental Law Foundation sent notices to the defendants alleging they violated a California consumer protection law by failing to disclose that some of their products contain trace amounts of lead. The U.S. Food and Drug Administration investigated the allegations and concluded that there was lead in some of the products, but not enough to “pose an unacceptable risk to health.”
A handful of plaintiffs firms filed consumer class action complaints, the cases were consolidated in the MDL before Judge Ponsor in April 2011, and Whatley Drake & Kallas landed the lead counsel spot for the putative class. The defendants jointly moved to dismiss in July, on the grounds that the named plaintiffs hadn’t suffered any harm. The plaintiffs lawyers countered with two theories of injury. First, they asserted that consumers were harmed because the lead could cause future health problems. Second, they argued that the plaintiffs were harmed economically because they wouldn’t have bought the defendants’ products had they known about the lead.
Judge Ponsor rejected both theories on Wednesday and granted the defendants’ motion to dismiss. He dismissed the health theory as “simply too hypothetical or conjectural.” Turning to the economic injury theory, the judge wrote: “The products have not been recalled, have not caused any reported injuries, and do not fail to comply with any federal standards. The products had no diminished value due to the presence of the lead. Thus, plaintiffs received the benefit of the bargain, as a matter of law, when they purchased these products.”
“One striking aspect of the opinion was the judge’s confidence that, in the absence of actual injury, there was no standing,” MoFo partner Michele Corash told us. “He didn’t feel it was necessary to reach or even discuss the other equally strong grounds for dismissal.”
MoFo has been busy defending manufacturers against similar suits, which have been described (at least by MoFo and a few others in the defense bar) as “private Surgeon General” cases. “In the typical private Surgeon General case, the consumers are unharmed, the infraction is hypertechnical, the science is suspect, the claims are implausible, and the FDA (or other regulator) has studied the issue is decided the public is not at risk,” MoFo lawyers William Stern and Janelle Sahouria wrote in this 2010 article.
The defendants are the Coca-Cola Company, Del Monte Corporation, Dole Packaged Foods, Gerber Products Company, The Hain Celestial Group, The J.M. Smucker Company, KFP International, Mott’s, Topco Associates, Trader Joe’s Company, and Welch Foods.
Whatley Drake name partner Joe Whatley, Jr. didn’t return a call seeking comment.