Milberg Files Real Kosher Ice Cream Listeria Class Action Lawsuit

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August 28, 2023

by Brian Eckert

Class action attorneys for Milberg Coleman Bryson Phillips Grossman (“Milberg”) have filed a lawsuit against Real Kosher Ice Cream Inc. of Brooklyn, New York in response to the company recalling “Soft Serve on the Go Cups” linked to a listeria outbreak.

At least two people have been hospitalized from the recalled ice cream and sorbet cups. If you have any Soft Serve on the Go products, the FDA urges you to throw them out or return them to your store of purchase for full credit. You may also be eligible to join this class action lawsuit and recover compensation.

All Soft Serve On The Go Cups Recalled

On August 9, Real Kosher Ice Cream issued a recall of Soft Serve On The Go ice cream cups due to their potential to cause listeria infection. The following products are included in the recall:

  • Soft Serve On The Go Vanilla Chocolate
  • Soft Serve On The Go Razzle
  • Soft Serve On The Go Caramel
  • Soft Serve On The Go Parve Vanilla Chocolate
  • Soft Serve On The Go Sorbet Strawberry Mango
  • Soft Serve On The Go Lite Peanut Butter

According to the FDA, the recalled product is sold in 8 fl oz. clear plastic cups and “looks like a soft serve cup served in an ice cream store, with a clear plastic cover with a seal and spoon attached to it.”

All Soft Serve On The Go Cups produced up to 8/4/2023 are being recalled. Individual product lot numbers can be found in the recall announcement, which includes product photos.

Product Distributed in Nearly 20 States, 2 People Sickened

Recalled Soft Serve On The Go Cups were distributed in California, Colorado, Connecticut, Washington D.C., Delaware, Florida, Illinois, Massachusetts, Maryland, Michigan, Minnesota, North Carolina, New Hampshire, New Jersey, New York, Ohio, Oregon, Pennsylvania, Virginia, and West Virginia.

Two people were hospitalized after eating Soft Serve On The Go contaminated with the bacterium Listeria monocytogenes. The sickened consumers are from Pennsylvania and New York.

In an August 22 update on the listeria outbreak, FDA reports that Pennsylvania health officials collected a sample of Soft Serve On The Go from an ill person’s home and it tested positive for Listeria monocytogenes. Further testing confirmed that the strain of Listeria found in the sample matched the strain linked to the outbreak. Five additional samples taken at the Real Kosher Ice Cream manufacturing plant also tested positive for the same strain of Listeria.

A CDC page on the listeria outbreak states that Soft Serve On The Go was sold at many stores, including grocery stores, convenience stores, and canteens. It was also distributed to long-term care facilities, nursing homes, schools, camps, and other businesses and institutions.

Listeria infection can be severe and even deadly to at-risk groups such as pregnant women, people 65 years or older, and immunocompromised individuals. Learn more about Listeria outbreaks, infections, and symptoms on the CDC’s Listeria Questions and Answers page.

Lawsuit Accuses Manufacturer of Deceptive, Misleading Business Practices

Real Kosher Ice Cream says on its website that it promises to “uphold our reputation for pure, honest standards” and conveys quality claims that include “Better Ingredients,” “Better Oversight,” and “Better Production.” The “Better Ingredients” claim emphasizes “It’s what we put in. And also, what we leave out.”

Quality claims of this nature, however, elide the presence of Listeria monocytogenes in the company’s Soft Serve On The Go products. Nowhere on product packaging or labels is the pathogen mentioned. And there was no way, absent product labeling or warning information, that consumers could have known that the products contain, or might contain, Listeria monocytogenes, because they lack the meaningful ability to test whether a product contains unsafe substances.

Defendant specifically lists both the active and inactive ingredients of the Products on the labeling; however, Defendant fails to disclose that the Products contain, or are at the risk of containing, Listeria monocytogenes.

These are among the claims raised in Milberg’s Real Kosher Ice Cream Listeria class action lawsuit, filed August 18 in U.S. District Court for the Eastern District of New York. The lead plaintiff, represented by Nick Suciu III, purchased Soft Serve On The Go, but says she wouldn’t have bought it had the defendant not made false, misleading, and deceptive representations and omissions about the product’s contents.

The plaintiff seeks to represent a consumer class comprised of anyone who purchased the recalled ice cream anywhere in the United States, as well as a subclass of New York consumers.

Milberg: A National Leader in Class Action Litigation

Eligible class members do not have to hire an attorney or take any other action at this time. Milberg is representing the class on a contingency-fee basis. Class members will be automatically notified of a verdict or settlement that affects their legal rights, including the ability to recover compensatory damages.

Attorney Nick Suciu, whose practice is focused on the dietary and sports supplement space, has achieved several multi-million-dollar settlements against national brands. He is also leading a listeria-related frozen fruit lawsuit.

Since 1965, Milberg has filed thousands of class action lawsuits, recovered billions of dollars for our clients, set groundbreaking legal precedents, and prompted meaningful changes in how big companies do business.

To discuss a mislabeled product or food safety lawsuit, please contact us.