EAST ST. LOUIS – Pizza buyers Jamie Jackson and Trenton McDonald dismissed class claims over labels on Red Baron pizzas rather than exercise their last chance to state their case.
They filed a stipulation with pizza maker SFC Global Supply Chain in U.S. district court on Sept. 23, to close the case with prejudice.
District Judge David Dugan ruled in August that plaintiffs sufficiently pleaded the presence of a preservative but didn’t plead the presence of artificial flavor.
He said at a hearing that plaintiffs could file another complaint, their third in a year, and he added that it would be the last.
Attorney David Nelson of Belleville sued SFC Global in St. Clair County circuit court last September, identifying Jackson and McDonald as St. Clair County residents.
He challenged “preservative free crust” and “no artificial flavors” labels on Red Baron pizzas with three, four, and five cheeses.
He alleged consumer fraud, breach of express warranty, and unjust enrichment and proposed a class period of five years.
He identified other class counsel as Matthew Armstrong of Brentwood, Mo., and Dallas lawyers Stuart Cochran and Blake Mattingly.
SFC Global counsel Michael Jente of St. Louis removed the complaint to district court on the basis of diverse citizenship as a Minnesota business.
He moved for judgment on the pleadings, claiming plaintiffs provided no basis for believing the ingredients at issue weren’t derived from natural plants.
This April, Dugan found plaintiffs made a plausible claim of unjust enrichment.
He dismissed the warranty claim with prejudice for failure to notify SFC Global before suing.
He dismissed the consumer claim without prejudice.
Plaintiffs amended the complaint in May, to add fraud allegations.
In June, Dugan ruled that Jackson and McDonald must produce all grocery receipts whether they showed Red Baron purchases or not.
Jente moved to dismiss, and Dugan held a hearing on Aug. 12.
By then, production of receipts had apparently gone well for SFC Global.
Nelson said to Dugan, “I am not going to tell you or them or anybody else that our clients bought the pizza on a particular day.
“Knowing we actually purchased that particular product at a particular store more than once, that’s a credible fact.
“What difference would it make if the plaintiffs bought the pizza on the fourth of July instead of the third of July?”
Dugan said, “I don’t know that it would but it might.”
SFC Global counsel Stephen Safranski of Minneapolis said that to be artificial, an ingredient has to impart flavor and it can’t come from a plant or animal.
He said the ingredients in the complaint came from soybeans and corn.
He said monosodium glutamate exists naturally in corn and tomatoes.
Dugan said to Nelson, “Flour is processed. How is that not natural?”
Nelson said, “When you process that flour, you do it in the service of producing flour.
“By processing hydrolyzed proteins, it’s not in the service of producing hydrolyzed proteins. It’s in the service of creating MSG, which they don’t want on the label.”
Dugan told him he needed to plead with more specificity.
He said for a second problem he didn’t see what public policy was violated.
He entered an order on Aug. 25, finding an assertion that ingredients were highly processed didn’t provide a plausible claim of artificiality.
He wrote that sugar cane is highly processed.
On the other hand, he found plaintiffs alleged enough facts to show the pizzas contained ingredients that functioned solely as preservatives.
He gave them 21 days to amend the complaint, and the deadline passed.
The stipulation that followed didn’t disclose whether the parties settled.
Attorneys Neal Perryman of St. Louis and Geoffrey Kozen of Minneapolis represented SFC Global along with Jente and Safranski.