Scotts Must Face Poisoned Bird Seed Class Action Lawsuit

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Scotts Miracle-Gro Co. will continue to face civil claims over its marketing of poisoned bird seed, now that a California federal judge has determined his court still has jurisdiction over claims from out-of-state plaintiffs.

U.S. District Judge John A. Houston denied Scotts Miracle-Gro’s motion to dismiss claims brought by non-California plaintiffs and Class Members. The plaintiffs seek to hold Scotts accountable for marketing tons of bird seed that was laced with pesticides.

Scotts tried to argue that under a recent Supreme Court decision, non-California plaintiffs can’t bring these claims in a California federal court. Under Bristol-Myers Squibb Co. v. Superior Court of California, the company claimed, federal courts are significantly restricted from entertaining claims from plaintiffs who reside outside the courts’ home state. And marketing bird seed in California and selling it there through third-party sellers is not enough to bring Scotts within the court’s general jurisdiction, the company argued.

But Judge Houston determined that the new Supreme Court decision does not actually change the controlling law. Without such a change, Scotts Miracle-Gro does not have a new way to challenge personal jurisdiction that was not available at the time of its previous motions for dismissal, the judge ruled.

Therefore, the judge said, Scotts has waived its right to challenge personal jurisdiction and can’t bring such a challenge now.

On similar grounds, Judge Houston also rejected a request by Scotts CEO James Hagedorn that the court reconsider its previous denial of his motion for dismissal. The judge said the new Supreme Court decision does not give Hagedorn any new grounds for relief, and that his motion for reconsideration was filed after the 28-day deadline imposed by court rules.

This motion for dismissal is Scotts Miracle-Gro’s latest attempt to avoid a consolidated class action litigation that has been going on for more than three years.

Plaintiffs in this action claim the company sold Scotts Miracle-Gro wild bird food products that were laced with pesticides Storcide II and Actellic 5E. They accuse Scotts of not only failing to disclose the presence of pesticides in these products but also of intimidating its employees into keeping quiet about the toxic bird seed.

Scotts argued unsuccessfully in October 2014 that it had mooted plaintiffs’ claims by offering a total of $18,000 in restitution. In January 2015, Scotts fought the plaintiffs’ efforts to undo confidentiality requirements the company allegedly imposed on its employees, vociferously denying that it ever used heavy-handed tactics to silence witnesses who could have testified about the poisoned bird food.

In February 2012, Scotts pleaded guilty to charges brought by the Environmental Protection Agency and Department of Justice, alleging the company violated federal pesticide laws. The company paid a total of $12.5 million in civil and criminal penalties.

As certified by the court, the plaintiff Class covers “all persons who, prior to May 1, 2008, purchased and have not yet received a full refund for, a Scotts MiracleGro wild bird food product containing Storcide II, Actellic 5E, or their active ingredients, chlorpyrifosmethyl or pirimiphosmethyl, respectively.”

Plaintiffs’ counsel are Douglas P. Dowd and Alex R. Lumaghi of Dowd & Dowd PC, John J. Driscoll, Gregory Pals and Christopher Quinn of The Driscoll Firm PC, and Michael Albert, Rachel A. Cocalis, Jason A. Forge and Rachel L. Jensen of Robbins Geller Rudman & Dowd LLP.

The Scotts Miracle-Gro Toxic Bird Seed Class Action Lawsuit is In re: Morning Song Bird Food Litigation, Case No. 3:12-cv-01592, in the U.S. District Court for the Southern District of California.

UPDATE: On Dec. 7, 2018, consumers secured an $85 million settlement agreement in a class action lawsuit alleging Scotts Miracle-Gro Company sold toxic bird seed.

UPDATE 2: March 2019, the Scotts Morning Song Bird Food class action settlement is now open. Click here to file a claim.

UPDATE 3: On Dec. 21, 2019, Top Class Actions viewers started receiving checks in the mail worth as much as $332. Congratulations to everyone who filed a claim and got PAID!