Milberg Class Action Follows Frozen Pancake and Waffle Listeria Recall

Milberg class action attorneys have filed a lawsuit in response to a massive frozen pancake and waffle recall by TreeHouse Foods, Inc. due to potential listeria contamination.

TreeHouse said there have been no confirmed reports of illness related to the products to date, but consumer concerns are heightened after a string of listeria outbreaks that have popped up across the country this year, sickening hundreds and causing multiple deaths.

The manufacturer recommends that consumers check their freezers for the recalled pancakes and waffles and either throw them away or return them to the place of purchase for credit. They may also be able to join this lawsuit and recover monetary damages.

Recall Includes Hundreds of Products

TreeHouse announced a voluntary recall of certain frozen waffles on October 18, 2024 when routine testing at a manufacturing facility in Canada discovered the bacteria Listeria monocytogenes. The recall was expanded on October 22 to include all waffles and pancakes made at the facility and still within their shelf life.

The frozen pancake and waffle listeria recall, which the manufacturer said is being caried out with the knowledge of the U.S. Food and Drug Administration and Canadian Food Inspection Agency, affects hundreds of products sold at major retailers in the U.S. and Canada, including Albertson’s, Aldi, Dollar General, Hannaford, Kroger, Publix, Target, and Walmart.

Frozen pancakes and waffles sold under more than 40 brand names are part of the recall. TreeHouse is telling consumers to identify the affected products using the UPC and Best By Date on the packaging. A full list of the recalled products with pictures can be found here. Lot Codes in the scope of this recall begin with 2C.

Milberg’s Lawsuit

Within days of the recall, Milberg filed a class action lawsuit in U.S. District Court for the Eastern District of New York.

Plaintiff Damany Browne alleges that TreeHouse engaged in “deceptive and misleading business practices” because it failed to disclose to consumers the recalled products contain listeria, a foodborne bacteria that can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems.

Healthy individuals infected with listeria often experience short-term symptoms such as high fever, severe headache, stiffness, nausea, abdominal pain, and diarrhea, but listeria infection can cause miscarriages and stillbirths among pregnant women.

Plaintiff and those similarly situated certainly expect that the frozen food products they purchase will not contain, or risk containing, any knowingly harmful substances that cause severe disease and can even be life threatening.

According to the class action complaint, the frozen pancake and waffle recall is not a sufficient remedy to the presence of listeria bacteria in TreeHouse’s products.

Browne claims most consumers with the contaminated products would immediately throw them away and that consumers frequently shop at different stores and do not always retain their receipts, which would prevent them from receiving a refund.

“Defendant’s recall is designed to reach very few people and designed to benefit very few of the consumers who purchased the Products,” the complaint states. “The class action remedy is superior to Defendant’s failed recall in every conceivable fashion.”

The complaint calls the contaminated pancakes and waffles “in no way safe for human consumption” and “entirely worthless.” It claims that TreeHouse engaged in “false, deceptive, and misleading” marketing and advertising that is negligent and violates New York General Business Law.

Browne seeks monetary, statutory, compensatory, treble, and punitive damages, as well as attorneys’ fees and costs, on behalf of consumers nationwide who purchased the recalled pancakes and waffles.

Milberg’s Russell Busch, Nick Suciu III, and Trenton Kashima are representing Browne and the class members.

2024 a Bad Year for Listeria Outbreaks

While the TreeHouse pancake and waffle listeria recall is large, it has yet to turn deadly. The same cannot be said about a recall and listeria outbreak tied to Boar’s Head deli meat that has so far sickened 59 people and left 10 dead across 19 states.

Boar’s Head is not the only company dealing with the potentially deadly pathogen. Since January, companies like ANSWERS, BrucePac, BrightFarms, and Planters have issued listeria-related recalls affecting dog food, meat and poultry, mushrooms, peanuts, and produce.

The presence of Listeria monocytogenes was solely within the possession of Defendant, and consumers could only obtain such information by sending the products off to a laboratory for extensive testing.

Food safety experts say the string of incidents is just a coincidence. One expert told the L.A Times “There’s no evidence at all to suggest that our food supply is less safe than before.

However, another expert acknowledged that the series of listeria recalls this year shows “we aren’t where we thought we were.”

She stressed that “the onus is really on the companies” to perform food safety inspections and investigations—a point echoed in Milberg’s TreeHouse listeria lawsuit when it points out that consumers “lack the meaningful ability to test or independently ascertain or verify whether a product contains unsafe substances, such as Listeria monocytogenes, especially at the point of sale.”

As the lawsuit argues, consumers therefore must—and do—rely on companies like TreeHouse to truthfully report what their products contain on packaging or labels. And when they don’t, consumers rely on law firms like Milberg to hold those companies accountable.