Recall Litigation Report: Trends in 2024 Continue Into 2025

Looking back at 2024, manufacturers were extremely busy navigating a high number of recalled products and corresponding litigation. A number of these 2024 litigation and class action trends appear to be carrying over into 2025.

Class Action Lawsuits Following Food Recalls

The past year saw an increased number of lawsuits against food companies following recalls for salmonella, listeria, and other outbreaks. Plaintiffs’ claims ran the gamut, ranging from false advertising to design defect to medical monitoring.

Boar’s Head Provisions Co., Inc. voluntarily recalled over 7 million pounds of deli-meat products that may have contained Listeria monocytogenes. In August, a New York resident filed Torres v. Boar’s Head Provisions Co. Inc., No. 1:24-cv-05405 (E.D.N.Y) on behalf of all consumers who purchased Boar’s Head Brand Products anywhere in the United States before July 31, 2024. The complaint alleged causes of action for violation of New York’s deceptive acts and practices law and false advertising based on Boar’s Head’s failure to disclose that its products were contaminated with listeria. The complaint took issue with Boar’s Head’s recall, alleging that consumers were “advised to discard any recalled products” or “return them to the store where purchased for a full refund,” and that Boar’s Head knew that customers “would be predisposed to throwing the Products away.” These allegations may have been an attempt to avoid dismissal based on prudential mootness, but the case settled in early February before the parties could submit briefing of motions.

Similarly, on October 3, 2024, plaintiffs in Peni v. Daily Harvest Inc., et al., Case No. 1:22-cv-05443-DLC (S.D.N.Y) brought a class action in the U.S. District Court for the Southern District of New York asserting claims for strict liability, breach of express and implied warranties, and negligence after the company voluntarily recalled approximately 28,000 units of its French Lentil + Leek Crumbles due to possible salmonella contamination. Daily Harvest agreed in May 2024 pay a total of $7.67 million to resolve these allegations, and the amount of damages to individual class members will depend upon the level of harm, to be determined by the settlement administrator.

Within days of TreeHouse Foods, Inc.’s voluntary recall of frozen pancake and waffle products due to listeria contamination, plaintiffs filed a class action in the Northern District of Illinois alleging a wide range of warranty, tort, and strict liability claims. Notably, plaintiffs assert that the waffles were defectively formulated, evidenced by the asserted fact that other waffles did not pose the risk of listeria contamination. Plaintiffs also pleaded a count for medical monitoring, alleging that a reasonable physician would order monitoring because of the increased risk of future health complications from exposure to listeria.

Food recalls and corresponding class actions have not slowed in 2025. On March 28, 2025, another plaintiff filed a class action against TreeHouse Foods, Inc. in the Southern District of New York following its 2024 recall of frozen breakfast products. The plaintiff alleges that TreeHouse falsely marketed and advertised the products and failed to notify consumers about the risk of listeria.

Prudential Mootness Decisions Depend on Court’s Complete Relief Analysis

 In 2024, parties continued to rely on prudential mootness arguments in putative class actions at the motion to dismiss stage. In determining whether claims were prudentially moot, courts often analyzed whether the recall provided complete relief to the plaintiffs.

In July 2024, the court in Bolton v. Ford Motor Co., No. CV 23-00632-GBW, 2024 WL 3328522 (D. Del.) indicated it would likely reject the argument that the complaint should be dismissed as prudentially moot because plaintiffs alleged that the recall did not compensate them for all the damages they had incurred for purchasing and leasing Ford vehicles equipped with allegedly defective engines. Six months after plaintiffs filed their complaint, Ford recalled the model years with the allegedly defective engines. Ultimately, the court declined to resolve the mootness issue but observed that the doctrine of prudential mootness would not apply if the recall remedy would leave plaintiffs without “complete relief.”

On March 28, the court in Patlan v. BMW of N. Am., LLC, No. CV 18-CV-09546, 2024 WL 1328012 (D.N.J.) rejected BMW’s argument that plaintiffs’ claims were prudentially moot despite their contention that the recall provided “complete relief.” Plaintiffs in Patlan alleged that certain BMW vehicles could spontaneously combust and catch fire, leading BMW to initiate several recalls. Plaintiffs sought damages related to the diminished value of their vehicles and out-of-pocket expenses. In rejecting BMW’s prudential mootness argument, the court reasoned that courts may decline to apply prudential mootness where plaintiffs seek relief that exceeds what defendants offer through a recall. Because the plaintiffs in Patlan asserted “various legal claims for damages beyond the injunctive relief provided by” the recalls, the claims were not prudentially moot.

In contrast, the Eastern District of Michigan in Letson v. Ford Motor Co., No. 23-10420, (Feb. 28, 2024) held that Ford’s recall efforts were sufficient to render plaintiffs’ claims prudentially moot. Plaintiffs in Letson filed a putative class action seeking damages for overpayment for their class vehicles due to an alleged defect in certain models that caused the fuel injectors to crack. Ford initiated a recall before the lawsuit was filed that addressed the defect with free repairs, updated the engine software to detect a cracked fuel injector, and reimbursed owners who had already spent money to address the defect. Plaintiffs argued that their case was not prudentially moot because the recall did not address their asserted damages for overpayment. The court rejected plaintiffs’ argument, reasoning that Ford’s recall would restore the vehicle’s value, thereby “eliminating plaintiffs’ overpayment injuries.”

Courts in 2025 have used similar reasoning. On March 3, 2025, the District of New Jersey denied Jaguar’s motion to dismiss the warranty claims in Joyce v. Jaguar Land Rover N. Am., LLC, No. 23-CV-04281 (D.N.J.), in which plaintiffs allege that certain Jaguar models have a problem with the battery system. The court exercised its discretion in rejecting Jaguar’s argument that the warranty claims were moot because Jaguar is instituting a buyback program for several reasons, including that the program would only include the 2019 model whereas the complaint alleges there are also problems with the 2020 model.

Circuits Split on Benefit of the Bargain Theory for Standing but Consistent on Sufficient Contamination Allegations

Several courts in 2024 addressed whether economic injury can form the basis for standing in putative class actions involving recalled products, leading to a circuit split. However, the decisions were consistent that plaintiffs must demonstrate that the subject products purchased were contaminated.

In April 2024, the Seventh Circuit was confronted with whether plaintiffs in a putative class action alleging economic injury under benefit of the bargain and premium price theories had standing in In re Recalled Abbott Infant Formula Prods. Liab. Litig., 97 F.4th 525 (7th Cir. 2024). In this case, plaintiffs sued Abbott Laboratories, Inc. after it voluntarily recalled infant formula after the FDA identified harmful bacteria in two batches of formula. The Seventh Circuit rejected the plaintiffs’ argument that they were harmed because they would not have paid the list price for the infant formula if they had known of the risk of contamination, holding that these harms were hypothetical and conjectural. The court reasoned that plaintiffs got the benefit of the bargain and did not pay a premium when they purchased the formula because there was no known risk of contamination at the time of purchase, and once the potential risk of contamination was discovered, plaintiffs were told not to use the formula and offered a refund. The court also held that the harms were not particularized because plaintiffs did not allege that any of the products they purchased were tested and confirmed to be contaminated, nor did they plead facts suggesting that the contamination was sufficiently widespread to plausibly affect any given unit of infant formula.

In November 2024, the Third Circuit in Huertas v. Bayer US LLC, 120 F.4th 1169 (3d Cir. 2024) was similarly faced with whether benefit of the bargain damages are sufficient for standing. Bayer initiated a recall and refund of an antifungal spray in October 2021 due to potential benzene contamination, and plaintiffs filed their putative class action one month later. The Third Circuit held that plaintiffs sufficiently pleaded economic injury based on the benefit of the bargain theory because they alleged that the benzene-contaminated products they purchased were defective and therefore worth less than a properly manufactured product. According to the court, if a product contains a manufacturing flaw that prevents consumers from using the product, it is not worth the full price purchasers paid. The court clarified, however, that plaintiffs must have plausibly alleged that the specific products they purchased were defective and contained benzene because without such allegations the benefit of the bargain theory fails. Though some plaintiffs alleged that the products they purchased were in a lot number referenced in the recall, the court held that the recall, by itself, does not and cannot establish that plaintiffs’ products were contaminated. The plaintiffs also tried to rely on certain testing to establish their products were contaminated, but the Third Circuit had reservations about the limited testing. The plaintiffs then relied on a separate case in which Bayer alleged that certain samples manufactured during a time frame were, in fact, contaminated. Ultimately, the Third Circuit upheld the dismissal for any plaintiff that failed to allege a lot number because the only connection between the purchased products and the contaminated products was the timeframe. The court remanded as to the remaining plaintiffs for the district court to determine whether all these allegations plausibly demonstrate that the plaintiffs’ products were contaminated as required for standing.

Only days after Huertas was decided, the Southern District of New York decided Bell v. Greenbrier Int’l, Inc., No. 24-CV-3559 (JMF), 2024 WL 4893270, at *5 (S.D.N.Y. Nov. 26, 2024). The plaintiff in that case brought a class action against Dollar Tree, alleging that the recalled ground cinnamon she bought was contaminated with lead, and that she would not have purchased or overpaid for the product had she been aware of the presence of lead. Relying on Huertas, the court reasoned that plaintiff did not sufficiently allege that the cinnamon she bought was contaminated because she did not allege her product was from one of the lots in the recall or that she tested the cinnamon she purchased for lead. Absent such allegations, the court found that the only way for plaintiff to demonstrate standing was to sufficiently allege that the lead contamination was so widespread as to render it plausible that she purchased cinnamon with elevated lead. Like Huertas, the plaintiff in Bell did not provide information to “tie” her cinnamon to the recalled, contaminated products other than the timeframe.

At least one court has used similar reasoning in 2025. In Quinn v. Proctor & Gamble Co., No. 24-CV-856 JLS (SBC), 2025 WL 437905 (Feb. 6, 2025), the Southern District Court of California granted Proctor & Gamble’s motion to dismiss an individual action brought by a California plaintiff, who alleged she regularly purchased Herbal Essence brand products and was informed of a recall of certain Herbal Essence conditioner and shampoo products due to the presence of benzene. Proctor & Gamble argued that the plaintiff did not sufficiently allege that she was exposed to benzene from the specific products she purchased. The plaintiff relied on her allegations that she regularly purchased and used the products, the Valisure testing that showed certain products contained benzene, and Proctor & Gamble’s internal testing that resulted in the recall. The Court dismissed all claims because the plaintiff failed to allege that she used personal care products from the batches or lots that the Valisure or internal testing identified as contaminated.

PFAS Litigation and Class Actions

In 2024, litigation involving Per-and Polyfluoroalkyl Substances (“PFAS”), a broad class of man-made synthetic chemicals, continued to ramp up, including claims that consumer and recalled products contained unsafe levels of PFAS.

In Winans v. Ornua Foods N. Am. Inc., 731 F. Supp. 3d 422, 426 (E.D.N.Y. 2023), a putative class action was filed shortly after Ornua Foods North America Inc. recalled Kerrygold butter products as a result of a New York state law banning PFAS in food packaging. The plaintiff brought claims for deceptive practices, false advertising, selling of adulterated or misbranded food, negligence per se, and unjust enrichment, alleging that the product labeling indicating “Pure Irish Butter” was misleading and that she was harmed as a result of a variation on the price premium theory. In April 2024, the Court denied Ornua’s motion to dismiss, holding that the plaintiff had standing and properly pled a misrepresentation. Both holdings primarily focused on plaintiff’s “migration theory.” In this case, the parties did not dispute that the packaging of the products contained PFAS, and the plaintiff alleged that PFAS migrated from the packaging to the butter itself. The Court accepted this migration theory and distinguished prior cases requiring sufficient allegations that the specific products were contaminated, such as the cases discussed in the prior section, because the parties had agreed there was PFAS in the packaging. As to an actionable misrepresentation, the court held that the “Pure Irish Butter” language on the label could mislead a purchaser and that the presence of PFAS could be material to a reasonable consumer. The omission-based claims also survived because plaintiff alleged that Ornua exclusively controlled the packaging and decided to recall products in response to the New York law banning PFAS from food packaging, which the court concluded were sufficient to plausibly allege that Ornua could have suspected the PFAS could migrate to the product.

On February 14, 2025, the court in Bullard, et al. v. Costco Wholesale Corp. et al., No. 24-cv-03714 (N.D. California) granted a motion to dismiss with leave to amend a class action complaint, which asserted claims against Costco and others for the sale of Kirkland Signature Baby Wipes that allegedly contain unsafe levels of PFAS. The class action includes claims under California and New York law on consumer protection, deceptive practices, unfair competition, false advertising, warranty, and fraud. The defendants’ motion argued that the class action should be dismissed for lack of standing and failure to state a claim because the complaint included only conclusory allegations that the wipes contained PFAS that pose a risk of harm. On the standing argument, the court concluded that plaintiffs’ allegations that they paid a premium for the baby wipe products that they otherwise would not have purchased had they known that it contained PFAS was sufficient. However, the court held that the class action complaint failed to include sufficient allegations that, if proven, would show that the wipes contain PFAS in such a quantity to cause the harms asserted in the complaint. The court emphasized that “‘PFAS’ is not a magic word that can be invoked to open automatically the doors to federal litigation.”