Whole Foods Wants Homeopathic Remedy Class Action Gone

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Whole Foods is seeking the dismissal of a homeopathic remedy class action lawsuit with its principal argument being the offer of full damages to the named plaintiffs.

Several Florida residents are seeking restitution under violations of the state’s Deceptive and Unfair Trade Practices Act over alleged false advertising regarding homeopathic remedies used for various symptoms. The homeopathic remedy class action lawsuit takes issue with the packaging of “Cough Ease for Kids,” “Cough Ease,” “Flu Ease” and “Arnica Montana 30C.” The group argues that the treatments do not work as advertised on their labels.

Whole Foods argues in its motion to dismiss the homeopathic remedy class action lawsuit that although the plaintiffs are seeking class certification, they did so after the company offered full restitution as well as reasonable attorney fees. The motion argues that in several cases, a judge has denied class certification if full restitution is offered, although this is not universal precedent in the federal court system. Still, in a recent decision, a judge found that “an offer of judgment mooted class action claims Where a motion for class certification had not been filed prior to the offer of judgment.”

In addition, the company alleges that the Floridians have failed to meet the Rule 23 standard required for certification of a Class. The defense team notes that there are no affidavits or declarations to support the class action lawsuit or even exhibits of the labels affixed to the homeopathic remedies. Further, the plaintiffs are seeking to represent purported Class Members who purchased similar products, which they do not have standing to pursue themselves.

Other issues with the class action lawsuit revolve around other standards under Rule 23 including ascertainability and adequacy. Since the homeopathic remedies are relatively inexpensive, many consumers may not have retained receipts for their purchases, according to Whole Foods. As a result, the company argues that it is impossible to find out who all may have been affected by the alleged false advertising. Even if that weren’t true, the motion to dismiss also argues that the nationwide Class would likely seek damages based on the state statutes governing the various Class Members, rendering the case inadequate for certification.

Even if the other points don’t dissuade a judge, Whole Foods still wants the request for injunctive relief in the homeopathic remedy class action lawsuit tossed. None of the plaintiffs can suffer future harm, the motion to dismiss argues, because none of them plan on purchasing the homeopathic remedies in the future.

The plaintiffs are represented by Thomas P. O’Connell of Thomas P. O’Connell PA.

The Whole Foods Homeopathic Remedy Class Action Lawsuit is Mario Herazo, et al. v. Whole Foods Market Inc., et al., Case No. 14-cv-61909, in the U.S. District Court for the Southern District of Florida.