Consumer-driven lawsuits that follow product recalls often focus on what the manufacturer knew and when, bringing a host of fraud-based common law and statutory claims. Sometimes lawsuits go a different route, insisting that companies should warn consumers about every possible complication that could result from the products they manufacture, no matter how remote. A new class action against Lyons Magnus, in Catalono v. Lyons Magnus, LLC, No. 7:22-cv-06867 (S.D.N.Y filed Aug. 11, 2022), is one such case.
In July and August, Lyons Magnus voluntarily recalled 90 of its nutritional beverage products due to possible bacterial contamination from Cronobacter sakazakii and Clostridium botulinum, which can cause food poisoning, fever, and/or urinary tract infection, and in very severe cases, respiratory paralysis and death. And on August 11, 2022, a New York resident sued Lyons Magnus on behalf of nationwide and New York classes of purchasers of the recalled products.
Despite the potentially harmful consequences of ingesting these bacteria, however, the plaintiff does not allege any personal injury. Instead, the suit seeks compensation for economic loss. Although plaintiff does not allege Lyons Magnus actually knew that its products were contaminated, plaintiff claims the company should have somehow disclosed the presence of bacteria in its list of ingredients. More specifically, plaintiff asserts that because Lyons Magnus uses “a marketing and advertising campaign that omits from the ingredients lists that the Products contain Cronobacter sakazakii,” reasonable consumers falsely believe they are purchasing products that are not contaminated with bacteria. Based on this labeling and advertising theory, plaintiff asserts claims for violation of New York General Business law and for breach of warranty under the Uniform Commercial Code provisions in 49 states and Washington D.C.