Scotts Consumers Fight Dismissal of Toxic Bird Seed Class Action

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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.

Opposing arguments made by Scotts chief executive James Hagedorn speculates that consumers may not have cared about the bird poison in Morning Song Bird Food, the consumers reminded the court that Scotts recalled 70 million bags of the toxic bird seed and dumped them into landfills.

Moreover, a federal investigation found that the toxic bird seed caused actual harm to birds and presented a significant risk of harm – a fact the consumers say Hagedorn tried to conceal throughout this litigation.

Hagedorn urged the court earlier this month to deny class certification on grounds that each Class Member has “different views” on the specific health risks of the toxic bird food that would have to be addressed individually.

But the consumers say that isn’t true. By failing to disclose that its product was illegal to market and sell as bird food, undermines Scotts argument since no reasonable consumer would purchase bird seed that presented a safety risk.

Scotts admitted to illegally applying insecticides to its wild bird food products that were poisonous to birds in 2012. The company also acknowledged that it falsified pesticide registration documents and distributed pesticides with misleading and unapproved labels.

The company was fined a total $12.5 million in criminal and civil penalties for violating EPA’s pesticide laws, along with the promise to complete environmental projects to prevent runoff of agricultural chemicals into waterways and protecting bird habitats.

This is the third attempt the company has made to dismiss the case. In October 2014, Scotts first motioned to have the case tossed arguing that consumers who opted not to accept the company’s offer for full restitution no longer have valid claims.

Then in January 2015, Scotts sought dismissal a second time, opposing the consumers’ motion to limit confidentiality. Scotts asserted that it never tried to block its employees from being interviewed about the proposed class action by the plaintiffs.

Hagedorn also argued that during his alleged involvement in selling the toxic bird seed – from October 2007 to March 12, 2008 when Scotts ceased shipping the contaminated bird food – the consumers have no way of proving conclusively that they purchased the product after Hagedorn joined the scheme because they did not save their bags.

However, the consumers say that retaining the bags is not the only way to demonstrate that Hagedorn and Scotts illegally treated the bird seed with toxic pesticides.

“To the contrary, defendants have already pled guilty to applying the toxic pesticides at issue to all [wild bird feed] from November 2005 until March 2008; they have produced manufacturing records corroborating this admission; and defendants do not deny their records can be used to determine when the affected products were shipped to which retailers,” the consumers said.

Furthermore, the consumers claim to have already ascertained which bags of bird food were treated with the illegal pesticides through Universal Product Code numbers and other information.

“More importantly, all [wild bird feed] was illegal, worthless, and destined for landfills; and it was the ‘government’s belief that [all wild bird feed] caused actual harm to birds and presented a significant risk of harm,’” the consumers stated.

The plaintiffs are represented by Jason A. Forge, Rachel L. Jensen, Regis C. Worley Jr., Brian E. Cochran and Michael Albert of Robbins Geller Rudman & Dowd LLP, Douglas P. Dowd and Alex R. Lumaghi of Dowd & Dowd PC, and John J. Driscoll, Christopher Quinn, Gregory Pals and John A. Simon of the Driscoll Firm PC.

The Toxic Bird Seed Class Action Lawsuit is In re: Morning Song Bird Food Litigation, Case No. 3:12-cv-01592, in the U.S. District Court for the Southern District of California.

UPDATE: 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 2: On Dec. 7, 2018, consumers secured an $85 million settlement agreement in a class action lawsuit alleging Scotts Miracle-Gro Company sold toxic bird seed.

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!