An Illinois couple may yet be able to lead a class action lawsuit against Whole Foods for selling and promoting a bottled water product that allegedly contained too much arsenic. But they will not be able to press their case in any court in Illinois, a federal judge has ruled.
On April 1, U.S. District Judge John J. Tharp Jr., of the U.S. District Court for the Northern District of Illinois, in Chicago, dismissed the class action lawsuit brought by named plaintiffs Lorenzo and Vienna Colucci, against the retailer.
The Coluccis served as the lead plaintiffs in the action filed in 2019 by a team of attorneys, including Elaine A. Ryan and others with the firms of Bonnett Fairbourn Friedman & Balint P.C., of Phoenix, San Diego and Evanston; the Paskowitz Law Firm P.C., of New York; Roy Jacobs & Associates, of New York; and the Law Offices of David N. Lake, of Encino, Calif.
Elaine Ryan
| Bonnett Fairbourn Friedman & Balint P.C.
The lawsuit asserted Austin, Texas-based Whole Foods and its parent company violated Illinois’ consumer fraud law by selling and marketing a bottled water, distributed under the Starkey Water brand.
Starkey Water is not one of Whole Foods’ private labels, according to court documents, but is sold by Whole Foods.
The company also promotes Starkey Water on its website.
However, in 2016, the U.S. Food and Drug Administration determined Starkey Water contained “arsenic levels above the federal limit” of 10 parts per billion. Starkey Water’s label “does not disclose its arsenic levels and states that its ‘purity has been protected for 11,000 years’ and it ‘gushes forth … with beneficial minerals,’” Judge Tharp noted in his April 1 ruling.
While acknowledging the claims, Tharp said federal case law dooms the lawsuit, in Illinois, at least, because the Coluccis fail to demonstrate how Illinois judges can exercise so-called personal jurisdiction over a company based in Texas.
Tharp said it is not enough for the Coluccis to point to Whole Foods’ promotion of the bottled water on its website. Just because Illinois residents may view the promotional material on Whole Foods’ site, doesn’t mean Whole Foods can be sued in Illinois, Tharp said.
“The Coluccis have not shown that (Whole Foods) targeted Illinois in selling Starkey Water by enabling consumers to buy it directly through the Whole Foods site, limiting its customer pool to certain states, or conducting a nationwide advertising campaign for the product,” Tharp wrote. “They have alleged only that (Whole Foods) operated an informational web page for the product. That alone is insufficient to finding (Whole Foods) purposely directed its activities towards Illinois.”
Tharp dismissed the case with prejudice, in Illinois – meaning, the lawsuit cannot be refiled in any court in the state.
The judge noted the ruling is “without prejudice as to the merits of the plaintiffs’ claim.”
Whole Foods has been represented in the case by attorneys J.T. Wells Blaxter, of Blaxter Blackman LLP, of San Francisco, and Danny Worker, of Lewis Brisbois Bisgaard & Smith LLP, of Chicago.