Chief Judge Nancy Rosenstengel in the Southern District of Illinois denied McDonald’s motion to dismiss a lawsuit alleging the presence of polyfluoroalkyl substances (PFAS) in food packaging, but she granted transfer to the Northern District of Illinois.
In an order filed March 27, Rosenstengel transferred the claims of non-Illinois residents Joseph Houser, Lydia Johnson and Linda Cavazo, as well as claims of Madison County resident Larry Clark.
Rosenstengel concluded that the “substantial events underlying plaintiffs’ claims did not occur in the Southern District of Illinois.” She added that the Northern District has a “stronger connection to this case” because the “relevant activity underlying this action on the part of McDonald’s occurred at its headquarters in the Northern District.”
McDonald’s filed its motion to dismiss or transfer on June 1, 2022, through attorney Trenton Norris of Arnold & Porter Kaye Scholer LLP in San Francisco, arguing that the case should be transferred to the Northern District of Illinois where two similar cases are pending.
A class of consumer plaintiffs filed a memorandum in opposition to the defendant’s motions through attorney Steffan Keeton of The Keeton Firm in Pittsburgh on July 1, 2022, 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 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.
In her ruling, Rosenstengel acknowledged that Clark’s purchase at a McDonald’s in the Southern District represents the event that “ripened his claims,” but found that the underlying events related to the allegations took place in the Northern District.
“Plaintiffs’ claims arise out of the representations (or omissions) of McDonald’s to consumers regarding the safety of its products and its use of PFAS on its website, in statements to the media, and within SEC filings,” she wrote. “The claims turn on employee and executive decision-making regarding marketing, advertising, and the use of PFAS in product packaging. These executive decisions are centralized in the Northern District at McDonald’s headquarters.”
She added that while Clark’s claims connect his purchase to the Southern District, the remaining named plaintiffs “have an independent need to connect their claims to the Southern District.”
Rosenstengel noted that the plaintiffs alleged that the dissemination of false and misleading information occurred in the Southern District, but she concluded that they failed to provide information supporting the claim.
“Instead, the amended complaint states that McDonald’s disseminated its message with the core theme of product safety to the broader public,” she wrote. “Moreover, the amended complaint indicates that the messaging regarding product safety targeted a nationwide, if not global, audience.”
Further, Rosenstengel held that while the Southern District can exercise specific jurisdiction over McDonald’s, it cannot exercise general jurisdiction because the defendant’s principal place of business is in the Northern District of Illinois.
“On the other hand, the claims brought by the non-Illinois plaintiffs are wholly unrelated to the contacts or activity of McDonald’s in the Southern District,” she wrote. “These non-Illinois plaintiffs allege that they purchased products from McDonald’s establishments in Pennsylvania, Virginia, and Texas.”
Rosenstengel also concluded that while Clark’s case was filed first, the two Northern District cases were filed within three days and two weeks of Clark’s suit and have since been consolidated into one action. She wrote that the cases remain in the same stage of litigation and are substantially similar.
“The Court finds that having two different courts hear essentially the same action and facilitate the same discovery process would be wasteful and duplicative,” she wrote. “While the factors of docket congestion and likely speed to trial and familiarity with the relevant law are neutral as the cases remain at the same litigation stage and both courts are equally familiar with the applicable law, it is clear that the Northern District has a stronger interest in this case.”
McDonald’s also sought to dismiss the complaint, arguing that the plaintiffs base their claims on articles in consumer advocacy publications indicating that the packaging for four menu items may contain PFAS compounds used for grease-resistance.
The defendant further argued that the plaintiffs did not suffer actual injuries but claim “the menu items they have already enjoyed were worth less than they paid, or maybe worth nothing.”
The plaintiffs countered 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.”
In light of transfer, Rosenstengel did not address McDonald’s dismissal arguments.
“[T]he transferee court shall take up those matters,” she wrote.
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