CHICAGO (Legal Newsline) - Pickle-maker Arkk Food Company wants a federal judge to toss a proposed class action that argues its Wahlburgers dill spears and chips contain sodium benzoate despite being marketed as all natural.
Kyle Counts' January lawsuit in Chicago federal court also claims the pickles were marketed as fresh and having no preservatives despite "considerable amounts" of the preservative.
Arkk says his complaint is vague and fails to establish his standing to sue under the Illinois Consumer Fraud and Deceptive Business Practices Act.
"(H)is complaint does not (and cannot) satisfy... heightened pleading requirements applicable to the ICFA and other consumer fraud acts," a March 28 motion to dismiss says.
"Plaintiff does not allege that any of the pickles he purchased contained sodium benzoate, pointing only to unrelated test results filed by another party in a separate lawsuit.
"Further, he makes all of his material allegations about Defendants' conduct and knowledge on information and belief, which is insufficient under well-established precedent, and in all events he fails to sufficiently allege either the commission of a deceptive act or intent elements of that claim."
The chemical test cited by Counts comes from a similar New Jersey lawsuit by Grillo's Pickles, filed Jan. 3.
Counts claims the defendants "go to considerable lengths" to mislead consumers into thinking the pickles are all natural and conceal the fact the products contain the chemical preservative.
He also claims consumers pay more for the products based on the deceptive labeling and marketing and that pickles with artificial and chemical preservatives usually sell for one to two dollars less than "truly fresh pickles."
Counts and the class seek monetary relief, interest, trial by jury and all other just relief. They are represented by Kevin Laukaitis of The Laukaitis Law Firm LLC in Philadelphia and Michael Reese of Reese LLP in New York.