CHICAGO (Legal Newsline) - A Chicago federal judge is telling class action lawyers to slow down after they attempted to certify a class before Walmart could even respond to their lawsuit.
Attorneys including New York's Spencer Sheehan on Oct. 11 filed a motion for class certification - one day after submitting their complaint against Walmart. The lawsuit alleges Great Value-brand "raw" honey is not raw because it has been excessively heated.
Judge Lindsay Jenkins said Oct. 12 that the motion was premature and warned the lawyers to not misrepresent cases or make frivolous legal arguments.
The motion for class certification cited a Seventh Circuit decision called Szabo from 2001, claiming it allowed judges to certify classes based on mere allegations. "Szabo, in fact, says the opposite," Jenkins said.
"The proposition that a district judge must accept all of the complaint's allegations when deciding whether to certify a class cannot be found in Rule 23 and has nothing to recommend it," the Szabo decision says.
Jenkins said a plaintiff "must go beyond the pleadings and rely on evidence in the record" when moving for certification. A separate case cited that allowed for an immediate motion for class certification only did so to avoid a mootness issue, Jenkins added.
"Perhaps sometimes it may be proper to move for class certification shortly after a complaint is filed, but such a motion would need to be based on a nonfrivolous argument that the rigorous standards for class certification have been satisfied," Jenkins said.
Sheehan is joined by attorneys from Krislow & Associates in Chicago and Kent Heitzinger & Associates in Winnetka. They are representing plaintiff John Wertymer.
According to Wertymer's allegations, Walmart is misleading consumers by labeling its Great Value-brand honey products as "raw" and/or "organic." He claims Walmart adds "foreign sugars" to its "Organic Raw Honey" and "excessively heats" the honey during processing, which causes the enzymes in the raw honey to be destroyed.
Specifically, Wertymer alleges Walmart uses Mannose, a mono saccharide not found in honey but regularly found in industrial sugars. He further alleges Walmart had actual knowledge that its Organic Raw Honey and Raw Honey are not raw or organic and do not have the benefits of raw honey. He also alleges Walmart has fraudulently been selling the product at a premium price while misleading consumers.