Whole Foods Seeks To Dismiss Greek Yogurt MDL

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Whole Foods is opposing 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.

In their argument before U.S. District Judge Sam Sparks, Whole Foods stated that the plaintiffs failed to establish that the grocer breached a duty to preserve the Greek yogurt at the time it was destroyed and that they suffered only because of their own conduct.

Whole Foods further argued the plaintiffs could have easily conducted testing before bringing claims that Whole Foods purposely removed and destroyed the Greek yogurt products in questions in bad faith from its shelves.

The organic grocery chain countered that instead of attempting to purchase a container of Greek yogurt for testing, the plaintiffs’ counsel instead generated publicity for their case through media interviews.

The retailer said, “Plaintiffs claim in their spoliation motion that it was ‘impossible’ for them to have performed the required testing is demonstrably false. Plaintiffs could have easily done so as the record demonstrates and the court has observed. Instead, one of plaintiffs’ lead counsel gave media interviews and peddled (and relied on) the inadequate testing performed by Consumer Reports, presumably for maximum sensational effect.”

Whole Foods went one step further and accused the plaintiffs of likely resorting to distorting and misconstruing the deposition testimony of witnesses and taking sound bites out of context or without clarifying testimony in order to avoid dismissal of their case.

According to Whole Foods, these actions demonstrate the “deliberate or simply dilatory and incompetent” conduct of the plaintiffs.

The grocer still holds that it never destroyed the Greek yogurt or evidence relevant to the plaintiffs’ claims but only voluntarily took the Greek yogurt off store shelves as part of a routine spoilage monitoring process.

Additionally, Whole Foods argued that the deposed testimony of Skotidakis Goat Farm’s president “revealed a second and equally serious flaw in Whole Foods’ defense to the spoliation motion: that Skotidakis vehemently denies Whole Foods’ version of the relevant facts and maintains that there was no agreement by Skotidakis to preserve samples of the yogurt.”

In December 2014, several class action lawsuits over the false labeling of sugar content in Whole Foods store-brand Greek yogurt, 365 Everyday Value, were consolidated in Texas federal court with 21 claims spanning 10 states along with a national subclass.

Plaintiffs amended their complaint in August of 2015 to include Skotidakis as a defendant and submitted a revised complaint in October.

The Class of consumers all similarly allege that Whole Foods misrepresents the amount of sugar in its Greek yogurt.

However, Judge Sparks dismissed the case in February 2016 on the grounds that the plaintiffs relied on tests that didn’t meet FDA-approved standards

But in March, plaintiffs filed a motion requesting sanctions against Whole Foods, alleging that it purposely destroyed all samples of its 0% and 2% Greek yogurt at issue.

The motion argues that Whole Foods “utterly failed in its legal duty to preserve relevant evidence in its custody and control” by destroying the Greek yogurt and seeks details on the destruction to determine whether it was intentional and in bad faith.

Whole Foods shot back, arguing that it took all necessary measures to preserve the Greek yogurt as evidence but never received any request from plaintiffs to save testing samples, but only of a stay of consideration of the motion based on the admission that Skotidakis currently makes a plain Greek yogurt with more sugar than listed on the labels of the plain Greek yogurt at issue.

According to the plaintiffs, this constitutes an admission that the Greek yogurt manufactured for Whole Foods brand is in fact misleadingly labeled.

Whole Foods responded that this request was a mere misunderstanding of FDA protocol, and Judge Sparks dismissed the request for a stay of consideration in June.

The consumers are represented by Steve Gibbins of the Law Office of Steve Gibbins, Tina Wolfson of Ahdoot & Wolfson PC, William Anderson of Cuneo Gilbert & Laduca LLP, and Stephen DeNittis of DeNittis Osefchen PC, among others.

The Whole Foods Greek Yogurt MDL is In re: Whole Foods Market Inc., Greek Yogurt Marketing and Sales Practices Litigation, Case No. 1:14-mc-02588, in the U.S. District Court for the Western District of Texas.