Scotts Wants Toxic Bird Food Class Action Lawsuit Gone

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Scotts Miracle-Gro Company is seeking dismissal of a toxic bird food class action lawsuit, arguing that plaintiffs who did not accept its offer of full restitution no longer have valid claims.

The company faces an uphill battle because the 9th U.S.Circuit Court of Appeals precedent favors plaintiffs, allowing them to ignore such offers prior to Class certification. However, the agricultural giant argues that this class action lawsuit differs from the case decided by the 9th Circuit.

While plaintiffs can seek certificationt, Scotts argues that it made its offer of $18,000 more than a year ago, which should have provided ample time for the putative Class to either accept the offer or move for certification of the toxic bird food class action lawsuit, which was first filed in 2012. The motion to render the claims moot also noted that the 9th Circuit is in disagreement with most of its counterparts on the issue and that the Supreme Court has not ruled on the issue.

The defense relies heavily on recent decisions in federal courts governed by the 7th Circuit, including cases where a judge wrote, “Once the defendant offers to satisfy the plaintiff’s entire demand, there is no dispute over which to litigate, and a plaintiff who refuses to acknowledge this loses outright … because he has no remaining stake.” Another simply stated that, “[Y]ou cannot persist in suing after you’ve won.”

Regardless of the the choice of the judge, Scotts is also making the motion in order to have the potential to petition the U.S. Supreme Court for a writ of certiorari. A Supreme Court decision would afford plaintiffs and defendants in all federal jurisdictions the ability to have a single precedent regarding whether or not full restitution is sufficient to render claims moot if the defendant provides full monetary restitution for all plaintiffs.

The toxic bird food class action lawsuit is the result of Scott’s plea bargain agreement with both the Environmental Protection Administration and the Department of Justice. The company pleaded guilty in February 2012 to illegally applying two separate pesticides to the products. In total, the company pleaded guilty to 11 misdemeanors and paid $12.5 million in criminal fines and civil penalties.

The plaintiffs are represented by class action attorneys from Robbins Geller Rudman & Dowd LLP, Dowd & Dowd PC and The Driscoll Firm Pc.

The Toxic Bird Food Class Action Lawsuit is Cyphert, et al. v. Scotts Miracle-Gro Company, et al., Case No. 3:12-cv-01592, in the U.S. District Court for the Southern District of California.

UPDATE: On Dec. 16, 2016, Consumers are fighting back in a proposed class action lawsuit involving the head of Scotts Miracle-Gro Co.’s part in selling toxic bird seed, telling a California federal judge that no reasonable consumer would purchase a bird food product that was illegal.

UPDATE 2: On March 19, 2018, Scotts Miracle-Gro Co. will continue to face civil claims over its marketing of poisoned bird seed, now that a California federal judge has determined his court still has jurisdiction over claims from out-of-state plaintiffs.

UPDATE 3: March 2019, the Scotts Morning Song Bird Food class action settlement is now open. Click here to file a claim.

UPDATE 4: On Dec. 21, 2019, Top Class Actions viewers started receiving checks in the mail worth as much as $332. Congratulations to everyone who filed a claim and got PAID!