Whole Foods Consumers Want Dairy Farm Kept in Yogurt MDL

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Consumers in a proposed class action lawsuit over sugar content allegations in the Whole Foods Greek Yogurt MDL are asking a Texas federal court to keep claims against the dairy that makes the private-label yogurt in question.

The plaintiffs have asked the court not to dismiss claims against the Ontario, Canada-based dairy, 1048547 Ontario Inc. (also known as Skotidakis Goat Farm) that makes the 365 Everyday Value Plain Greek Yogurt.

The plaintiffs have asserted that the Hague Convention, “a complex procedure that involves, inter alia, working with the Canadian government to effect service,” should not stand in the way of the legal matters they are trying to resolve in working with another country.

The consumers initially filed the complaint against Whole Foods in August 2014 alleging the supermarket purposely mislabeled and falsely represented the amount of sugar contained in its 365 Plain Greek Yogurt.

The Greek Yogurt label indicated that there are 2 grams of sugar per serving, however testing by Consumer Reports showed that there were 11.4 grams of sugar per serving- nearly six times more than the label stated.

Another proposed class action lawsuit was filed against Whole Foods shortly thereafter.

The Judicial Panel on Multidistrict Litigation (JPML) centralized those two and several other lawsuits into a multidistrict litigation in December 2015.

As the plaintiffs were attempting to serve Skotikadis, Whole Foods filed a motion to dismiss the amended complaint.

The judge granted Whole Foods’ motion to dismiss the plaintiffs’ second amended complaint on Feb. 16, 2016. Following the dismissal, a third amended complaint was filed against Whole Foods and Skotidakis on Mar. 4, 2016.

Because of the Hague Convention, Skotidatis was not served the second amended complaint until Mar. 14, after the judge had already granted Whole Foods’ motion to dismiss the second amended complaint.

Skotidatis argued that the consumers hadn’t shown that it had properly been served, and it filed a motion requesting the court dismiss the claims or quash the defective service.

The plaintiffs maintain that their second amended complaint was not dismissed as to Skotidakis, just Whole Foods. The plaintiffs claim Skotidakis never joined the motion to dismiss or filed its own before the complaint was dismissed in February.

Just because there is a third amended complaint along with the second, it should not mean that the dairy is off the hook for the accusations, the consumers said. They have begun filing the third amended complaint against Skotidakis, but say serving a defendant outside the U.S. is a cumbersome process and it could take up to five months.

“Plaintiffs’ second amended complaint was not superseded by the mere filing of the third amended complaint because Skotidakis was never served therewith,” the consumers said.

“No court in this district has addressed the issue of precisely when a plaintiff’s complaint is legally superseded by a subsequently filed complaint. The Court of Appeals for the Second Circuit, however, has considered this exact issue, and held that a subsequent complaint does not supersede a prior complaint until service of the subsequent complaint is effected,” the plaintiffs claim.

The consumers have also recently accused Whole Foods of destroying evidence by knowingly getting rid of all of the yogurt samples that were under fire.

Whole Foods shot back, denying that it had destroyed any evidence.

The supermarket said that the product was voluntarily withdrawn and destroyed because it was never asked to save the yogurt, but the company did retain paper and electronic evidence relating to the claims, according to court documents.

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.