Consumer-driven lawsuits that follow a product recall often focus on what the company knew, when it knew it, and how it acted in response. And for companies who are hoping to avoid such a lawsuit, one of the biggest questions is what do they need to disclose to consumers and how far does that obligation reach? Certainly, companies cannot disclose what they did not know, and manufacturers are not required to warn for every conceivable risk, regardless of how remote. A recent class action, Gurkov v. Real Kosher Ice Cream Inc., No. 1:23-cv-06128 (E.D.N.Y Aug. 14, 2023), brings these issues into focus.

On August 9, 2023 Real Kosher Ice Cream recalled of certain of its on-the-go soft serve ice cream and sorbet cups due to potential Listeria contamination. In young children, frail or elderly people, and those with weakened immune systems, Listeria can cause serious and potentially fatal infections; and for pregnant women, Listeria can cause miscarriages and stillbirths.

Five days after the recall announcement, on August 14, New York resident, Chaya Gurkov, sued Real Kosher Ice Cream on behalf of New York and nationwide classes of purchasers of the recalled products. Plaintiff does not allege personal injury, and she does not allege that Real Kosher Ice Cream knew of Listeria contamination. Instead, plaintiff seeks to recover for economic harm based on Real Kosher Ice Cream’s allegedly deceptive advertising and failure to warn consumers of potential contamination. Specifically, the complaint claims that by listing both the active and inactive product ingredients without warning about the risk of Listeria, Real Kosher Ice Cream “improperly, deceptively, and misleadingly labeled and marketed Products to reasonable consumers.” Based on this theory, plaintiff asserts claims for violation of New York law prohibiting deceptive acts or practices and false advertising, violation of New York statute prohibiting the manufacture or sale of adulterated or misbranded food, breach of express warranty, and negligence per se.

Gurkov  comes almost a year after Catalono v. Lyons Magnus, LLC, No. 7:22-cv-06867 (S.D. NY Aug. 11 2022), the lawsuit against Lyons Magnus alleging, among other things, that the company failed to warn about possible Cronobacter sakazakii and Clostridium botulinum contamination in its nutritional beverage products. Plaintiffs in Catalono have sought to certify New York and nationwide classes. Gurkov and Catalono will be interesting to watch as each court grapples with the scope of manufacturer liability and the duty to warn of potential, unknown contaminants.