Whole Foods Class Action Defendant Denies Destroying Evidence

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Whole Foods fired back against allegations that it intentionally destroyed evidence in a consumer class action lawsuit involving claims it misrepresented the amount of sugar in its Greek yogurt.

According to Whole Foods, the plaintiffs failed to test their own samples and never requested additional samples of the yogurt be preserved for testing.

Earlier this month, the plaintiffs’ filed a motion stating that Whole Foods “utterly failed in its legal duty to preserve relevant evidence in its custody and control” by destroying the yogurt and requested details on the alleged evidence destruction to determine whether it was intentional and in bad faith.

Plaintiff attorneys also asked the court for sanctions against Whole Foods, saying that last December, “Whole Foods revealed to Plaintiffs for the first time that ‘Whole Foods does not possess retained samples of the Whole Foods Plain Greek Yogurt and believes the voluntarily withdrawn product was destroyed pursuant to Whole Foods protocol.’”

Skotidakis, which manufactured the Greek yogurt for Whole Foods, also reportedly failed to preserve any samples of the product, according to the plaintiffs.

“Needless to say, the recent revelation that the entire stock of yogurt from over 350 Whole Foods stores nationwide has simply disappeared has left Plaintiffs dumbfounded,” the attorneys state. They argue that Whole Foods has not said who authorized the destruction of the Greek yogurt products, “or if the retained samples were ever really preserved to begin with.”

Whole Foods is currently being sued over deceptively advertising its store brand Greek yogurt as being low in sugar. The original legal action, dating back to 2014, accused the retailer of incorrect labeling of nutritional information on Whole Foods 365 Everyday Value Plain Greek Yogurt, indicating that the product had only two grams of sugar.

However, according to an investigation by Consumer Reports in July, the Whole Foods yogurt actually has more than 11 grams on average.

The investigation sparked at least four Whole Foods Market class action lawsuits. The lawsuits accuse the popular grocery store chain of deceptive advertising and seek to represent all customers who purchased the Whole Foods 365 Everyday Value Plain Greek Yogurt in New Jersey and Pennsylvania.

In December 2014, all class action lawsuits accusing Whole Foods Market Inc. of deceptively advertising its Greek yogurt as being low in sugar were consolidated as part of a federal MDL, or multidistrict litigation, centralizing all cases before one judge in the Western District of Texas.

In June 2015, the court indicated that testing of the products would be critical to the litigation. Whole Foods responded that it had retained samples. However, court documents say that Whole Foods pulled all of the allegedly mislabeled yogurt products a few weeks after the first of four separate yogurt labeling class action lawsuits was filed.

For the litigation to continue, the plaintiffs need to be able to complete a FDA-compliant test of the yogurt which requires 12 cases of the dairy product. If Whole Foods destroyed “the mountains” of yogurt—or hundreds of thousands of containers—it pulled from the shelves, which would render the FDA test impossible, the store could face “legal ramifications.”

A lawyer for the plaintiffs believes Whole Food “knowingly concealed” its “intentional destruction” of evidence for 16 months. A spokesperson for Whole Foods denies the allegation and believes them to be unfounded.

The plaintiffs are represented by Tina Wolfson of Ahdoot & Wolfson PC, William H. Anderson of Cuneo Gilbert & Laduca LLP, Stephen P. DeNittis of DeNittis Osefchen PC and Steve A. Gibbons of Law Office of Steve Gibbins.

The Whole Foods Greek Yogurt Class Action Lawsuit is In re: Whole Foods Market Inc., Greek Yogurt Marketing and Sales Practices Litigation, MDL No. 2588, in the U.S. District Court for the Western District of Texas.

UPDATE: On Sept. 1, 2016, Whole Foods opposed a sanctions request over destroyed Greek yogurt products, telling a federal court judge the grocery retailer is not to blame that the Class of consumer plaintiffs was not able to conduct testing on the 365 Everyday Value Greek yogurt products in question and that the case should be dismissed entirely.