Judge Arthur D. Spatt
Abbot Laboratories recalled 5 million containers of Similac baby formula contaminated by beetle parts and larvae. Plaintiffs—residents of New York, Texas, Ohio and New Hampshire who had purchased the recalled formula—claimed Abbot engaged in unfair and deceptive practices by misrepresenting Similac as “safe for consumption by infants” and by not warning of dangers associated with the contaminated product contrary to state consumer protection statutes. In opposing plaintiffs’ amendment motion, Abbott first argued—supported by Vavak v. Abbot Labs. Inc. and Jovine v. Abbott Labs. Inc.—that because they sought only monetary loss associated with their purchase of the contaminated product—remedied by recall and a refund program—plaintiffs’ claims under the consumer protection statutes were moot. The court found supplemental briefings as to the mootness of plaintiffs’ claims necessary prior to a decision on Abbott’s motion for judgment on the pleadings and plaintiffs’ amendment motion. Abbott’s 31/2 page submission provided an insufficient basis for the court to render a decision on whether plaintiffs’ claims were moot.
