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Another class action over now-repealed Cook County pop tax lands in court, even as others settle

By Jonathan Bilyk | Dec 11, 2017

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On the day the controversial Cook County “pop tax” expired, one of the law firms behind the rash of class action lawsuits against area retailers and restaurants over the collection of the tax brought perhaps one final class action claim against an area retailer, saying a man was charged a few cents too much for club sodas he purchased at two local Jewel supermarkets.

On Dec. 1, lawyers with the Zimmerman Law Offices P.C., of Chicago, filed suit in Cook County Circuit Court on behalf of named plaintiff Martin Vera against Albertsons Companies, parent company of local supermarket chain Jewel-Osco.

The lawsuit asserts Vera purchased three bottles of Jarritos-brand club soda at two Cook County Jewel stores in November, yet the store added the Cook County sweetened beverage tax to the purchases, even though club soda contains no sugar or other added sweeteners, meaning the beverages should have been excluded from the tax.

In all, the lawsuit alleges the store’s decision to charge the tax cost Vera an additional 50 cents per bottle of club soda.

The lawsuit further alleges Jewel likely did this to many other customers, and asks the court to expand the action to include anyone who bought any unsweetened beverage at any of Jewel-Osco’s 54 stores in Cook County from Aug. 1 to Dec. 1 and was charged the sweetened beverage tax.

The lawsuit comes as the latest – and perhaps the last – such class action filed against retailers operating in the county, alleging improper collection of the county’s controversy-plagued, and now repealed sweetened beverage tax.

The Cook County Board, at the urging of Cook County Board President Toni Preckwinkle, enacted the tax in late 2016, saying they expected the tax would bring in about $200 million per year to help the county maintain services while also helping to reduce consumption of soda pop and other beverages with added sweeteners, which public health officials have linked to obesity and other negative public health consequences.

However, from the moment the tax was enacted, it was dogged by controversy, and in the days before the tax was scheduled to take effect on July 1, a group of retailers sued to challenge the tax as unwieldy and unconstitutional.

A Cook County judge, however, while delaying the imposition of the tax by one month, rejected that legal challenge. In his dismissal, the judge, Daniel Kubasiak, also brushed aside concerns raised by the retailers over the risk of lawsuits, calling the retailers’ worries “merely speculation.”

But within days of the tax taking effect, the first such lawsuit was filed, followed quickly by many others in ensuing weeks, against such retailers and restaurants as Walgreens, 7-Eleven, Subway, McDonald’s, Circle K, KFC and even the Art Institute of Chicago.

All of the lawsuits alleged those selling both sweetened and unsweetened beverages had at some point charged customers a few cents too much for an unsweetened beverage, allegedly in violation of the county ordinance and state consumer fraud laws. The lawsuits typically asked the courts to award compensatory damages and attorney fees.

The Zimmerman firm brought several of the lawsuits, including against 7-Eleven, Subway, PepsiCo and KFC.

However, as the lawsuits began to pile up, public anger at the tax built, and retailers complained their beverage sales had plunged by as much as half, with much of the business merely going to stores in surrounding Lake, Kane and Will counties and across the stateline into Indiana, where the tax wasn't charged. Under such mounting pressure, the county board voted in October to repeal the tax, effective Dec. 1. 

Vera then made the purchases at the local Jewel stores at the center of his Dec. 1 lawsuit, even as county officials wound down collection of the tax.

And in October, plaintiffs began quickly and quietly to settle some of those pending lawsuits. The Zimmerman firm, for instance, settled the lawsuits against PepsiCo and 7-Eleven in October, within days of the pop tax repeal vote, according to court records.

The firm’s lawsuit against Subway is currently being contested by the company in Cook County court, after a federal judge rejected Subway’s bid to take the lawsuit to federal court. In court filings in that case, Subway’s parent company, Doctor’s Associates, blasted the “opportunistic nature” of the lawsuit.

And the case against KFC remains pending, according to Cook County court records.

Cook County court records also indicate the Zimmerman firm still has a separate class action, which it filed in August, pending against Albertsons and Jewel on behalf of named plaintiff Antonia Morales.

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Organizations in this Story

Jewel-OscoCook CountyZimmerman Law Offices, P. C.Cook County Board of CommissionersCook County Board President Toni Preckwinkle