Organic Consumers Association

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"Organic" Milk Class-Action Lawsuit is Underway

Attorneys representing 52 consumers in a lawsuit against Boulder, Colorado-based Aurora Organic Dairy and some of the nation's largest retailers will face off in court today at the federal court in the Eastern District of Missouri, Judge Richard Webber, presiding. The consumers allege that the milk they purchased, although labeled as "organic", did not meet federal organic standards. Their attorneys will argue claims including breach of contract and of implied warranty, negligent misrepresentation, unjust enrichment, and also claims under the consumer protection and deceptive trade practices statutes of several states.

Besides Aurora Dairy, the plaintiffs include Quality Assurance International (QAI), an organic certifier, dairy operator Case Vander Eyk, Jr.*, and the retailers Costco Wholesale Corporation, Safeway Inc., Target Corp., Wal-Mart Stores, Inc., and Wild Oats Market, Inc.

Today's scheduling conference is the culmination of 17 class-action suits recently filed against Aurora consolidated into a single lawsuit by a seven-judge Panel on Multidistrict Litigation in February. The panel added a related case against Target Corp. to the docket last week.

The defendants argue that the U.S. Department of Agriculture (USDA) has primary and "exclusive jurisdiction" in the case, and will ask for the case to be dismissed on "jurisdictional" grounds. On this basis, they said it would be "inappropriate and unnecessary' for "discovery" to proceed in the case, which would allow the plaintiffs to force disclosure of documents relating to business operations by the defendants.

Although the USDA said it had "identified willful violations" of the Organic Foods Production Act (OFPA) by Aurora Dairy in April 2007, a consent agreement was signed last August in which the dairy agreed to change some of its practices. Barbara Robinson, USDA Deputy Administrator, said in January that this had settled the complaints, and that no violation of the OFPA had been officially determined.

Other defense arguments in the case include "existence of an adequate remedy at law", "failure to meet burden of demonstrating that any acts or omissions on the part of defendant were illegal", "failure to meet class certification requirements", "milk purchased by plaintiffs was not produced/sold/distributed by the defendant", "no legal injury", and "statute of limitations".

The Plaintiffs want the parties to serve discovery on May 15 and said they will file their consolidated complaint by that date. They also said that they want the defendants to plead or answer to the complaint by June 16, or one month later if the defense asks for dismissal.

* whose certification was suspended in May, 2007 by QAI for not meeting federal organic regulations.


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