Law360 (August 15, 2022, 5:41 PM EDT) -- California protein beverage company Lyons Magnus LLC misled consumers by not disclosing that its drinks were contaminated with a potentially deadly germ, breaching express warranty, and New York business law, according to a putative class action complaint.
The suit filed Thursday in the Southern District of New York by Wayne Catalano says the defendant's drinks contain the Cronobacter sakazakii germ, which "could lead to serious and life-threatening adverse health consequences." Brands mentioned in the suit include Oatly, Intelligentsia, Stumptown, and Premier Protein, among others.
The suit follows a Lyons recall in late July for 53 nutritional and beverage products "due to the potential for microbial contamination, including from the organism Cronobacter sakazakii," according to the company. It later expanded the recall on Aug. 10 to include brands and products well beyond the original 53.
"A reasonable consumer reviewing Defendant's labels reasonably believes that they are purchasing a product that is safe," according to the suit, which says the company's advertising and marketing campaign is misleading and deceptive. Lyons injured Catalano and the class members, according to the suit, as they "paid a premium price" for Lyons products that were misrepresented.
Catalano seeks statutory damages totaling $550 per transaction, according to the complaint. The class is defined in the complaint as consumers who purchased Lyons's products in the U.S. during the applicable statute of limitations period.
Lyons breached express warranties "by including Cronobacter sakazakii in the Products sold to Plaintiff and the Class without properly notifying them of their inclusion in the Products," the suit said. Defendant's misrepresentation was intentional "because people are concerned with what is in the products that they ingest into their bodies," according to the suit.
Catalano is also asking the court for an order requiring Lyons to establish a blood testing program and a medical monitoring protocol for the class to "diagnose at an early stage any ailments associated with exposure to Cronobacter sakazakii."
Lyons said in July that no illnesses related to certain products had been reported and later in August that "root cause analysis indicates that the products did not meet commercial sterility specifications."
The germ "grows best in dry foods, powdered infant formula, powdered milk, herbal teas, starches, meats, waters, vegetables, rice, and bread," the suit said. Research has confirmed that ingestion of the germ "can cause death to infants, the elderly, and immunocompromised individuals," according to the suit.
"Defendant is using a marketing and advertising campaign that omits from the ingredients lists that the Products contain Cronobacter sakazakii. This omission leads a reasonable consumer to believe they are not purchasing a product with a known bacterium when in fact they are," the suit said.
Attorneys for Catalano and a representative for the brands Oatly, Aloha, and Intelligentsia were unable to be reached for immediate comment Monday.
Catalano and the proposed class is represented by Jason P. Sultzer, Joseph Lipari, and Daniel Markowitz of The Sultzer Law Group P.C. and Charles E. Schaffer and David C. Magagna Jr. of Levin Sedran & Berman.
Counsel information for defendants was not immediately available.
The case is Catalano v. Lyons Magnus LLC, case number 7:22-cv-06867, in the U.S. District Court for the Southern District of New York.