Whole Foods Marketing Arm Sheds Starkey Water False Ad Lawsuit

Whole Foods Market Services Inc. exited a proposed class suit alleging it deceptively marketed Starkey spring water, when an Illinois federal court distinguished a recent U.S. Supreme Court ruling and found jurisdiction lacking.

Lorenzo and Vienna Colucci alleged the marketing arm of Whole Foods violated an Illinois consumer protection law by not disclosing high levels of arsenic in the Starkey spring water. The company is subject to personal jurisdiction in Illinois because it controls the content and design of Whole Foods’ website, which is accessible in the state, the Coluccis said.

But the website alone isn’t enough to show that WFM Services purposely directed its activities toward Illinois, the U.S. District Court for the Northern District of Illinois said Thursday.

And the plaintiffs didn’t allege their purchase was in any way related to the website, so their injury doesn’t “arise out of or relate to” WFM Services’ Illinois-related activities, Judge John J. Tharp Jr. said.

The closest the plaintiffs came to linking WFM Services’ activities with their purchase was their assertion that “[w]ithout Defendant’s promotional efforts, Illinois residents like Plaintiffs might never shop at Whole Foods or purchase Starkey Water,” the court said.

“This statement, written in the subjunctive tense, only serves to highlight the tenuous relationship between their injuries and WFM Services’ activities,” the court said.

The court distinguished this case from the U.S. Supreme Court’s recent decision saying Ford Motor Co.'s advertising, sales, and services in states where accidents occurred supported jurisdiction in those states in suits involving cars that had first been sold elsewhere.

The Supreme Court said without Ford’s expansive contacts with their states, the plaintiffs may never have purchased the cars in question, Tharp said.

“The same cannot be said here,” he said.

WFM isn’t responsible for marketing or promoting Starkey Water as its relationship to the product is limited to displaying it on the Whole Foods website. The plaintiffs, though, didn’t link their purchases to the website, the court said.

The court dismissed the suit with prejudice as to refiling in any Illinois court but without prejudice as to the merits of the plaintiffs’ claim.

The Coluccis earlier dropped from their suit Whole Foods Market Pacific Northwest Inc., based on jurisdictional discovery.

Whole Foods Marketing was dismissed from a similar suit in a California federal court last year for lack of specific personal jurisdiction.

Bonnett Fairbourn Friedman & Balint PC, Paskowitz Law Firm PC, and Roy Jacobs & Associates represented the plaintiffs. Blaxter Blackman LLP and Lewis Brisbois Bisgaard & Smith LLP represented Whole Foods Marketing.

The case is Colucci v. Whole Foods Mkt. Servs., Inc., N.D. Ill., No. 1:19-cv-08379, 4/1/21.