A class of consumers suing McDonald’s Corporation over the alleged presence of polyfluoroalkyl substances (PFAS) in wrappers argue that the case belongs in the Southern District of Illinois as it is the only case with an Illinois resident, who happens to live in Madison County.
In a motion to dismiss or transfer filed on June 1 through attorney Trenton Norris of Arnold & Porter Kaye Scholer LLP in San Francisco, McDonald’s claims the case should be transferred to the Northern District of Illinois where two similar cases are pending.
The plaintiffs filed a memorandum in opposition to the defendant’s motions through attorney Steffan Keeton of The Keeton Firm in Pittsburgh on July 1, arguing that the case pending in the Southern District of Illinois was filed first, is the furthest along and is the only case with an Illinois resident - plaintiff Larry Clark.
“In other words, in the event of a transfer to the Northern District, most parties will be similarly impacted because all other plaintiffs would have to travel to either East St. Louis or Chicago. The only difference is McDonald’s burden is shifted to Mr. Clark,” Keeton wrote.
“In terms of convenience, this case comes down to two Illinois citizens: a citizen of Madison County and a corporation based in Cook County,” he added.
The plaintiffs also argue that McDonald’s has conceded that it will not depose any plaintiff in the Northern District of Illinois and that the bulk of discovery will be electronic records.
McDonald’s also seeks to dismiss the complaint, arguing that the plaintiffs base their claims on articles in consumer advocacy publications indicating that the packaging of four menu items may contain PFAS compounds used for grease-resistance.
Additionally, McDonald’s argues that the plaintiffs did not suffer actual injuries. Instead, they claim that based on the presence of PFAS, “the menu items they have already enjoyed were worth less than they paid, or maybe worth nothing,” the defendant argues.
In their opposition, the plaintiffs argue that the focus is not on how McDonald’s defines PFAS, but how the reasonable consumer interprets it.
“Defendant claims that no reasonable consumer could be misled or deceived by its behavior,” Keeton wrote. “Yet, this fails because consumers care deeply about these issues. In fact, defendant is aware and announced that it planned to adjust its use of PFAS by 2025 because of consumer concern once the truth was revealed. At a minimum, defendant creates another factual dispute.”
“As McDonald’s corporation twists, turns, and flips its statements, it does nothing to help its cause in this motion,” he added. “Instead, with every twist and shifting statement, it creates a stronger question of fact and drives it further away from its goal in this motion. Therefore, the motion should be denied in its entirety.”
Keeton filed the amended class action complaint on April 20 on behalf of plaintiffs Clark, Joseph Hauser, Lydia Johnson and Linda Cavazos. The plaintiffs allege they suffered economic damages as a result of the presence of PFAS.
“The products that plaintiffs and class members purchased are either worthless or worth less than the purchase price because defendant failed to disclose that they contain PFAS which are dangerous to the health of the consumer and to the environment,” the suit states.
According to the first amended complaint, the plaintiffs claim they purchased food products that are unfit for their intended use because they contain PFAS.
“PFAS are known as ‘forever chemicals’ because the carbon-fluorine bonds in PFAS are extremely strong and thus are not appreciably degraded under environmental conditions,” the complaint alleges. “The continued use of PFAS is, by their nature, unsustainable, because it will necessarily lead to a greater concentration of PFAS in the environment. In some case, PFAS will survive over 1,000 years.”
As a result, the suit states that low levels can also be harmful.
The plaintiffs claim exposure to PFAS is especially harmful to children and pregnant women. The substances are allegedly capable of crossing the placenta and transferring to unborn infants.
“Women exposed to PFAS during pregnancy have higher risks of gestational diabetes and pre-eclampsia, and their babies are more likely to undergo abnormal growth in utero, leading to low birth weight and later face an increased risk of childhood obesity and infections,” the suit states.
Specifically, the plaintiffs allege PFAS used in food packaging may migrate into fast food.
“The use of PFAS in its products stands in stark contrast to McDonald’s brand identity which espouses food safety,” the suit states. “In almost every medium, McDonald’s Corporation tells consumers, investors, and the general public that the products are safe.”
The plaintiffs allege McDonald’s denied that PFAS were used in the products until 2021.
“This failure to warn injured reasonable consumers, including plaintiffs, who reasonably relied upon defendant’s misleading representations that its products were safe,” the suit states. “Had plaintiffs and the putative class members know that McDonald’s products contained PFAS, they would not have purchased the products and/or would have paid less for them.”
The plaintiffs claim that as a company valued in excess of $200 billion, McDonald’s has the resources to provide products without the use of PFAS.
“This ‘profits over people’ approach allows McDonald’s Corporation to save pennies per unit sold, and instead pass these ‘costs’ at a far greater rate onto generations of consumers that must live with the consequences of McDonald’s willful inclusion and concealment of dangerous PFAS in McDonald’s products,” the suit states.
U.S. District Court for the Southern District of Illinois case number 3:22-cv-628