CHICAGO (Legal Newsline) - Parts of a class action lawsuit over pickles will get to proceed after a Chicago federal judge ruled on Arkk Food Company's motion to dismiss.
Judge Lindsay Jenkins tossed three counts on Nov. 3 from plaintiff Kyle Counts' lawsuit, which alleges Wahlburgers dill spears and chips contain sodium benzoate despite being marketed as all natural.
Wahlburgers-maker Arkk Food argued Counts did not have standing under the Illinois Consumer Fraud and Deceptive Business Practices Act. Arkk said Counts and his lawyers failed to show the pickles he ate contained the preservative.
Jenkins disagreed, as Counts argued it was reasonable to infer from testing of other pickles that his contained sodium benzoate.
"Plaintiff is relying on verified laboratory results that conclude Defendants' pickles selected from three geographically distinct sources in the U.S. manufactured at the same time as Plaintiff's purchase contained sodium benzoate," Jenkins wrote.
"While it would be preferable if pickles from Illinois were tested, Plaintiff is relying on the best information available to him - the test results - which were performed by another party... (I)t is plausible that a problem that impacted Defendants' products sold in California, Florida and Massachusetts would likewise extend to Illinois."
Because the ICFA claim can proceed, so to can his allegation of unjust enrichment, Jenkins wrote. She also refused to stop Counts' pursuit of a certified class action.
She dismissed the claim for breach of express warranty after finding Counts' lawyers failed to serve Arkk with pre-suit notice.
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.