Blue Bell Argues Customer ‘Refund’ Should Moot Listeria Class Action

Blue Bell Creameries Inc. has filed a motion to dismiss a proposed class action lawsuit over its deadly listeria outbreak, claiming the lead plaintiff accepted a $450 refund offer for the recalled ice cream along with court costs that he has failed to return.

The ice cream manufacturer voluntarily recalled all of its products last April following the listeria outbreak after finding several of its production facilities were contaminated. The CDC announced in June that the Blue Bell outbreak led to the hospitalization of 10 people, three of who died, across four states.

Plaintiff Steven J. Leon of Louisiana brought a proposed class action lawsuit against the Texas-based ice cream maker in the U.S. District Court of the Eastern District of Louisiana on Aug. 14, 2015 alleging negligence regarding the product recall.

However, the parties agreed to pause the putative class action to wait for a Supreme Court ruling (Campbell-Ewald Co. v. Gomez) on whether a company can fend off a consumer lawsuit by offering a settlement. The high court ruled that a company could still face a class action lawsuit despite an offer of judgment.

The ice cream maker argued that the $450 was an actual payment to Leon and not an offer, stating that since Leon has failed to return the check, the class action lacks merit since Leon could have simply requested a refund.

Instead, the company claims in its motion to dismiss that Leon was sent a check as an offer of judgment to cover the $16 ice cream costs along with court fees.

“Here, Blue Bell has actually paid the plaintiff in full, and this action is moot and should be dismissed,” the company argued, evidencing parts of SCOTUS’s majority, dissenting and concurring opinions in the Gomez case. “Where there is ‘actual payment’ through an unconditional tender or by depositing the money in the court registry unconditionally for the benefit of plaintiff, the case is in fact moot and should be dismissed for lack of jurisdiction.”

According to the complaint, consumers who purchased the defendant’s food products for consumption between March 13 and April 20 are entitled to damages because the company purportedly failed to provide adequate notice of the recall of their products. The lawsuit states that the company posted a recall on its website on or about March and April but that the dairy business had positive test results for a potentially lethal bacterium since 2013.

The consumer class action lawsuit states that the putative Class Members unknowingly paid for ice cream products containing listeria monocytogenes bacteria that could negatively impact their health. Leon argues that due to the health hazard posed by the products, the items were of no economic value because they had to be discarded; and that he and others were not notified of an available refund.

According to the lawsuit, the Centers for Disease Control and Prevention recommended that all impacted Blue Bell products stored in home or commercial freezers be discarded.

The Blue Bell listeria class action lawsuit states that the proposed Class consists of more than 100 members and the amount in controversy exceeds $5 million.

Leon is represented by Philip Bohrer and Scott Brady of Bohrer Law Firm LLC and Stan Baudin of Pendley Baudin & Coffin.

The Blue Bell Listeria Class Action Lawsuit is Leon v. Blue Bell Creameries Inc., Case No. 2:15-cv-03454, in the U.S. District Court for the Eastern District of Louisiana.

UPDATE: The Blue Bell Listeria Class Action Lawsuit was dismissed on March 21, 2016.