Plaintiffs Voluntarily Dismiss Whole Foods from Organic Milk Lawsuit

Plaintiffs in multidistrict litigation against Aurora Dairy Corp. over claims that its “organic” milk products do not meet federal certification requirements have reportedly filed an unopposed notice of voluntary dismissal requesting that the court dismiss Whole Foods Market Group, Inc. from the case without prejudice. In re: Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., MDL No. 08-1907 (E.D. Mo., motion filed December 13, 2008).

While Whole Foods apparently did not sell Aurora’s organic milk, the company was named as successor-in-interest to Wild Oats, Inc., the chain acquired by Whole Foods in August 2007 and alleged to have sold the products. Whole Foods has reportedly argued that Wild Oats retained its assets and liabilities after the merger and has agreed to provide plaintiffs with discovery on that issue. According to plaintiffs’ counsel, “If, after that discovery, we agree with your analysis, we will move the court to strike Whole Foods from the consolidated complaint.”

The litigation involves claims consolidated from actions filed in federal courts around the country that Aurora Dairy sold its milk as organic but failed to comply with federal organic standards. The defendants filed a motion for dismissal in October 2008, claiming that the U.S. Department of Agriculture’s decision to certify the milk as organic preempts the litigation. See Product Liability Law 360, December 16, 2008.

In a related development, eight senators have reportedly provided critical comments to the Federal Trade Commission over its proposal to
change its rules for investigating mergers for potential antitrust violations. Whole Foods has also opposed the changes which have been applied to its ongoing dispute with the commission over its merger with Wild Oats. According to a news source, the letter was signed by both Democratic and Republican senators, including Patrick Leahy (D-Vt.), Arlen Specter (R-Pa.), Dianne Feinstein (D-Calif.), and John Cornyn (R-Texas). The senators reportedly complain about the short 30-day comment period and express concern about the commission’s plan to speed up its process for assessing mergers and allowing commissioners to preside over hearings held before administrative law judges take over and to vote to investigate mergers. See Reuters, December 15, 2008.