Judge won’t let ConAgra off hook in class action over fish fillet brine

By Scott Hollan | Legal Newsline
The Center Square

CHICAGO — A federal judge won’t yet let food products maker ConAgra off the hook for a class action accusing it of misleading consumers about ingredients in its fish products.

U.S. District Judge John Tharp issued an opinion April 29 rejecting ConAgra’s motion to dismiss a complaint from three people who say they regularly bought Van de Kamp or Mrs. Pauls’ frozen fish products in 2022 and 2023 but now seek compensation for their allegations the company added sodium tripolyphosphate in order to inflate product weights.

The customers centered their complaint on a line on the front of several different product boxes reading “100% Whole Fish Fillets” while the ingredient list, on the back, indicates the type of fish and then “sodium tripolyphosphate (added to retain moisture).’ ” They alleged this discrepancy constitutes violations of California’s Unfair Competition and False Advertising laws and its Consumer Legal Remedies Act, as well as New York and Massachusetts state laws, and accused the company of breaching express and implied warranties and unjust enrichment.

Tharp agreed with ConAgra that the plaintiffs must establish their own right to sue before being allowed to create classes for customers in each of the three states and a nationwide class. ConAgra argued that wasn’t possible because none of the customers identified which products they bought. But Tharp then said the customers met the bar by specifically claiming each customer “made several purchases of some product or products the complaint identifies as being deceptively labeled.”

Tharp did note the customers were wrong to include fish stick products in their complaint, as those weren’t marketed as “100% Whole Fish,” but they later withdrew claims drawn from those products, leaving eight items to form the basis of the suit.

“Each plaintiff avers that he or she purchased at least one of those products and in the absence of any difference between the allegations with respect to those products the court finds that the complaint adequately alleges the conduct on which the plaintiffs’ claims are based,” Tharp wrote.

He further said ConAgra failed to show why these three customers couldn’t be representative plaintiffs for a class, saying they needed only to show the possibility of a legal injury stemming from their own purchases to survive a motion to dismiss. Whether there legal harms are too far apart from those of other frozen fish buyers is a question for the class certification stage, he said.

Tharp did agree the named plaintiffs couldn’t ask for an injunction, finding a lack of evidence they faced future injury if ConAgra doesn’t change product labels. He acknowledged a state court may grant such relief, but a federal court cannot, as they have already learned of the products’ ingredients and also know they can check the box backs before any future purchases.

ConAgra also failed to persuade Tharp the three customers couldn’t represent buyers from the other 47 states. Although he said he anticipates “staying discovery on the nationwide class allegations,” Tharp said he also wasn’t dismissing those claims this early in the litigation and didn’t consider whether dismissal would be procedurally allowed.

As to whether reasonable consumers might read the product boxes the same way as did plaintiffs, ConAgra argued the reference to “100% Whole Fish Fillets” is not misleading because not only are the products whole fillets, but pictures on the front of the box show the fillets as breaded, directly and obviously undercutting the assumption the only ingredient is fish.

In counter, the customers argued their concern is that the sodium tripolyphosphate and water are different from breading in that they’re added directly to the fish rather than constituting part of a whole product. As such, “the plaintiffs read the label to mean that the fillet part — and only the fillet part — of the fish product is 100% fish, and nothing else,” Tharp wrote, and since both parties have a plausible reading of the situation, dismissal is improper.

ConAgra wanted Tharp to consider a 2024 ruling from the same federal court district, Hicken v. Quaker Oats, about a product with the label “Simply Granola: Oats, Honey, Raisins & Almonds,” when the ingredients lists included other components. But in that ruling, Tharp said, U.S. District Judge Virginia Kendall observed “‘granola’ is not a kind of food that has a designated and agreed upon ingredient list that any reasonable customer would understand based on the phrase ‘simply granola.’”

Not so for fish, Tharp continued, suggesting a more relevant comparison was a U.S. Seventh Circuit Court of Appeals ruling in Bell v. Publix Super Markets regarding a product labeled as “100% Grated Parmesan Cheese” despite the inclusion of cellulose powder and potassium sorbate, each listed on the ingredients label. That panel further noted one possible reading of the package was, although other ingredients were present, the only cheese involved was parmesan.

Finally, Tharp said the claims sounding in fraud are adequately pled to survive dismissal, and noted that because the claims based on consumer protection theories are sufficient, he didn’t address theories of warranty violation or unjust enrichment.

Plaintiffs are represented in the case by attorneys from the firms of Wolf Haldenstein Adler Freeman & Herz, of Chicago; and Smith Krivoshey, of Boston and San Francisco.

ConAgra is represented by attorneys from the firms of Heyl Royster Voelker & Allen, of Chicago; and Alston & Bird, of Atlanta.