Safeway Class Plaintiffs Must Try Again

SAN FRANCISCO (CN) - Customers who sued Safeway for failing to notify them of food recalls lack standing because they didn't buy any of the recalled food, a federal judge ruled.

U.S. District Judge Richard Seeborg dismissed the putative class action on June 29, with leave to amend.

Lead plaintiff Dee Hensley-Maclean sued Safeway in March 2011, under California's Consumer Legal Remedies Act, and its Unfair and Deceptive Business Practices law.

Sarah Duncan later replaced Rosen after she removed herself from the case.

Hensley-Maclean claimed Safeway is obligated to notify customers of food recalls issued by the U.S. Food and Drug Administration or the U.S. Department of Agriculture.

She claimed that the plaintiffs "suffered damages in that they paid for foods that could cause serious, adverse health consequences or death when consumed."

"When Safeway learns that recalled products have been sold in its stores, it has a duty to disclose to customers that they face serious health risks or even death if they eat the recalled products. Safeway chooses not to notify its customers who purchased recalled products, thereby putting them at risk of substantial injury or death," according to the amended complaint.

Hensley-Maclean claimed that Safeway could easily issue warnings by using customer contact information tied to its Safeway Club Card, and that notification would "cost Safeway nothing, because ... suppliers agree to reimburse all costs associated with notice and refunds."

Safeway sought summary judgment in November 2013, claiming it has no such duty, but Seeborg rejected that.

"California negligence law imposes a general duty of ordinary care and Safeway has not shown either a statutory or public policy exception justifying a post-sale, no-duty rule," he wrote in an April 2014 order.

Safeway moved to dismiss again in January this year, saying that both lead plaintiffs lack standing - and this time Seeborg agreed.

"Discovery has now established ... that the products the named plaintiffs allegedly purchased were not in fact subject to any recalls," Seeborg found.

He also rejected their attempt to force Safeway to change its policies.

"Plaintiffs insist that even if they lack standing to pursue damages, restitution or other claims arising out of purchases of recalled products, they nonetheless have standing to pursue injunctive relief to compel Safeway to adopt different notification policies for any future recalls," Seeborg wrote. "Particularly absent a past injury, plaintiffs cannot predicate a right to relief on such contingencies."

He granted plaintiffs' motion to amend, "to substitute other members of the putative class as new named plaintiffs."

Plaintiffs' attorney Daniel LeBel said Safeway works a little "backward" compared to other retail chains that provide consumers with recall alerts, to protect themselves legally and to provide "added value" for customers.

"Their executives rely on the company's general counsel and [she or he] has decided that they are not obligated to provide consumers with recall notices," LeBel told Courthouse News.

"Yes, you would think they would have an interest in doing that."

LeBel said Safeway has considered recall notifications for its branded products and deli items, such as processed meats.

Adding a possible twist to the issue is Albertson's acquisition of Safeway in January. Albertson's does not have a membership or club card for customers, so it does not have a database with customer information for electronic notification.

Attorneys for Safeway could not be reached for comment.

The Albertson's-Safeway merger created a network of 2,230 stores, 27 distribution facilities and 19 manufacturing plants, employing more than 250,000 people in 34 states and the District of Columbia.

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