Whole Foods Overcharge Class Action Refreshed

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By Perry Cooper

Whole Foods must face potential class claims that it overcharged for prepackaged food after the Second Circuit revived the suit June 2 ( John v. Whole Foods Mkt. Grp., Inc. , 2017 BL 185912, 2d Cir., No. 16-986, 6/2/17 ).

Shopper Sean John alleged that New York grocery stores run by Whole Foods Market Group Inc. systematically overstated the weight on prepackaged foods to overcharge customers.

A lower court dismissed the suit, finding John’s statements that he regularly bought prepackaged cheese and cupcakes at Whole Foods—without specifics—weren’t enough to give him standing.

But John satisfied the low threshold for surviving early dismissal, the U.S. Court of Appeals for the Second Circuit said in an opinion by Judge Raymond Joseph Lohier Jr.

His purchases, combined with a 2015 New York City Department of Consumer Affairs investigation uncovering systemic overcharging at the stores, plausibly allege a nontrivial economic injury, the court said.

Judges Amalya Lyle Kearse and Dennis G. Jacobs joined the opinion.

Finkelstein, Blankinship, Frei-Pearson & Garber LLP; and The Richman Law Group represented the customers.

Greenberg Traurig LLP represented Whole Foods.

To contact the reporter on this story: Perry Cooper in Washington at pcooper@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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