CHICAGO (Legal Newsline) - The $2 million pickle settlement has received approval from a Chicago federal judge.
On Sept. 25, Judge Lindsay Jenkins held a final fairness hearing in a lawsuit against Arkk Food Company, which was accused of marketing Wahlburgers dill spears and chips as all natural despite containing the preservative sodium benzoate.
She approved all aspects of the settlement, including $750,000 for Kevin Laukaitis of The Laukaitis Law Firm and the firm Reese LLP. They represented plaintiff Kyle Counts.
Jenkins had tossed three claims from the case but allowed the rest to proceed. The proposed class is anyone who bought the products across the United States from May 1, 2021, to Dec. 31, 2022. Class members without proof of purchase will need to "certify the truth and accuracy of buying a Wahlburgers product."
Claimants with proof of purchase receive a full cash refund for each product, without limit. Those without will get $2 for each for a maximum of six products. There could be an adjustment depending on how many valid claims are submitted.
Arkk Food argued in its motion to dismiss 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 could proceed, so too could his allegation of unjust enrichment, Jenkins wrote.
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.
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."