With each passing day, it seems that the food industry is under increasing scrutiny from the regulators, the media, the consuming public, and even Congress. And, as if that weren’t enough, with each passing day, plaintiff lawyers are increasingly attempting to get a slice of their share as well. Indeed, while historically potential food industry civil litigation exposure was limited to personal injury lawsuits brought by injured consumers — or class action lawsuits brought by consumer lawyers complaining about labeling claims or violations — the civil litigation landscape may be significantly changing once again.

To our surprise, a well-established New York class action law firm, specializing in consumer fraud and unfair business practices, recently filed a class action lawsuit against a food company following the company’s announcement of a recall of certain ready-to-eat (RTE) food products for the potential of Listeria monocytogenes (Lm). The class action complaint alleges, in a nutshell, that the company at issue implicitly represented to the consuming public, through its marketing and labeling, that its food products were safe for consumption. The complaint then seeks to recover damages on behalf of each of the consumers who were allegedly “induced,” through such marketing and labeling, to purchase the product which later was alleged to be contaminated (as proven, the complaint alleges, by the subsequent recall). In essence, the complaint alleges that the company failed tell consumers, at the time of purchase, that Lm was present in the affected products.

Now, having represented the food industry for over 25 years, I think the allegations are a stretch. In my view, it is absolutely absurd to think that a class action lawsuit could be brought successfully against a food company for voluntarily recalling a product after the discovery of a problem that previously was unknown. The voluntary recall system in the US is designed to encourage food companies to take quick and decisive action when potential problems with their products are brought to their attention. Allowing class action lawsuits to be brought every time a food company elects to recall a product voluntarily would run directly contrary to the public policy encouraging voluntary recalls.

Indeed, if class action exposure was a real possibility accompanying every food product recall, I can almost guarantee that food companies faced with the decision about whether to recall their products in the face of a potential concern would be even more reluctant to pull the trigger and announce a recall. Instead, those companies would be incentivized to look for ways to dismiss the problem, diminish its significance, or even significantly limit the scope of any potential recall (to limit the scope of the potentially affected class of consumers in subsequent litigation). Indeed, if such lawsuits were allowed by the courts to proceed, it would translate into a very dark period for the food industry and for consumers alike.

With all that said, I predict that the novel approach being attempted by the aggressive New York plaintiff class action lawyers will fail, and the purported class action lawsuit will eventually be dismissed. We fully intend to lead the charge against the class action law firm in that case and, hopefully, put them in their rightful place. More precisely, we intend fully to obtain a complete dismissal of the lawsuit before it can even get off the ground.

The food industry has enough risk and exposure to manage without adding the element of class action liability for simply attempting to do the right thing when voluntary recall offending products from the market. Because this matter impacts everyone in the food industry, we will be sure to keep you apprised of the lawsuit’s progress. Or, ideally, the lack thereof.

In turn, we remain confident that, as we press forward, this latest attempt by the plaintiff lawyers to take yet another slice of the pie will be soured by logic, reason, and excellent lawyering. There is no place for class action lawsuits following recalls, and we fully intend to fight the good fight and, as we have for over 25 years, protect the food industry as best we can.

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