IN RE PLUM BABY FOOD LITIGATION

Background

Nine plaintiffs—Sarah Brown, Josh Crawford, Jessica David, Autumn Ellison, Ludmila Gulkarov, Vanessa Mathiesen, Kelly McKeon, Tommy Nurre, and Janine Torrence—sued Plum, PBC on behalf of a proposed class of purchasers of Plum Organics baby food. They alleged that the products could contain arsenic, cadmium, lead, mercury, and perchlorate, and that Plum’s labels did not disclose the presence or risk of those substances. Fourteen claims remained: claims under California, New York, Minnesota, Pennsylvania, and Illinois consumer-protection statutes, plus claims for unjust enrichment, fraudulent misrepresentation by omission, and fraud by omission. The plaintiffs had not yet moved for class certification.

The court noted that Plum, Inc. had been converted into Plum, PBC and conditionally dismissed Plum, Inc. The court considered Plum, PBC’s motion for summary judgment, the plaintiffs’ motion to seal another party’s material, and Plum, PBC’s motion to seal.

Standing

The court rejected Plum’s argument that the plaintiffs lacked standing because they suffered no economic injury. The plaintiffs testified that they would not have bought, or would not have paid as much for, the products if they had known about the alleged risks. The plaintiffs also submitted expert analyses using a conjoint analysis to estimate the price premium allegedly caused by the omissions. The court held that this evidence was sufficient for standing purposes and denied summary judgment on the economic-injury theory.

The court reached a different result concerning standing to seek injunctive relief. Eight plaintiffs—Brown, Crawford, David, Ellison, Gulkarov, McKeon, Nurre, and Torrence—lacked standing to seek an injunction concerning relabeling because they testified that they would not buy the products if they contained detectable heavy metals or perchlorate. The court also found that statements by several plaintiffs that they might or would consider buying the products did not show a sufficiently concrete future purchase intention. The court held that Vanessa Mathiesen retained standing to seek injunctive relief because she testified that she wanted to buy Plum products in the future if specified standards, including labeling that the substances were “undetectable,” were met. The court granted summary judgment on the injunctive-standing issue as to the eight named plaintiffs and denied it as to Mathiesen.

California Claims

The court granted summary judgment on the California False Advertising Law, Consumer Legal Remedies Act, and fraudulent-prong Unfair Competition Law claims. Under the governing law, an omission generally must concern either an unreasonable safety hazard or a material defect that is central to the product’s function and falls within specified disclosure circumstances.

The court found that the plaintiffs had not established that the levels of heavy metals and perchlorate in the baby food created an unreasonable safety hazard. The court described the theory that repeated consumption could cause dangerous chemical accumulation as too conjectural on the evidence presented. The court also found that the plaintiffs did not satisfy the required disclosure factors, including the requirement that Plum have exclusive knowledge of the relevant risk. Plum had disclosed on its website that its products might contain heavy metals, and the risks of heavy metals and perchlorate in baby-food ingredients had been publicly discussed in the media.

The court further held that the alleged contaminants did not make the baby food incapable of serving its central function as food. Although the contaminants could be materially concerning to consumers, the products continued to function as food. The court therefore granted summary judgment on the California fraudulent-prong claims.

The court also granted summary judgment on the unlawful and unfair prongs of the California Unfair Competition Law. The unlawful-prong theory depended on the failed California statutory claims. The unfair-prong theory relied on the same alleged conduct and failed under the tests the court applied because the conduct was not shown to be substantially injurious, immoral, or unethical.

New York, Illinois, Minnesota, and Pennsylvania Claims

The court granted summary judgment on the New York General Business Law sections 349 and 350 claims. It held that Plum did not have exclusive knowledge of the relevant risks and that information about heavy metals and perchlorate in baby food was reasonably accessible through Plum’s website and public reporting.

The court granted summary judgment on the Illinois Consumer Fraud and Deceptive Business Practices Act claim because the plaintiffs did not identify a statement by Plum that contained a material omission on which they relied. The court explained that, under the authority it applied, an omission claim under that statute must involve an omission from a communication rather than only a general failure to disclose.

The court granted summary judgment on the Minnesota Unlawful Trade Practices Act and Minnesota False Statement in Advertising Act claims. It found that Plum did not have special and exclusive knowledge of the possibility that its products contained trace amounts of heavy metals. The opinion’s discussion also identifies a Minnesota Prevention of Consumer Fraud Act claim among the remaining counts, but the specific disposition sentence quoted in that section names the Minnesota Unlawful Trade Practices Act and Minnesota False Statement in Advertising Act.

As to the Pennsylvania Unfair Trade Practices and Consumer Protection Law claim, the court found that Plum did not have exclusive knowledge of the risk of trace heavy metals and that the alleged accumulation risk was not shown to be an unreasonable, serious, or life-threatening danger. The court granted summary judgment on that claim.

Common-Law Claims

The court granted summary judgment on the unjust-enrichment, fraudulent-misrepresentation-by-omission, and fraud-by-omission claims. It reasoned that these claims were based on the same conduct as the California consumer-protection claims and therefore rose or fell with those claims.

Sealing Motions and Disposition

The court granted in part and denied in part the plaintiffs’ motion to seal another party’s material. It kept most requested materials under seal but declined to seal Exhibits 33, 34, and 66 to Rebecca A. Peterson’s declaration, as well as Exhibits 26, 59, and 96, because Plum had represented that those exhibits were mistakenly designated confidential. The court granted Plum, PBC’s motion to seal in full.

Judge Rogers granted summary judgment as to all remaining claims and directed the parties to submit a proposed form of judgment within five business days. The order terminated Docket Nos. 210, 233, 245, and 254.