LOS ANGELES, CA - Allegations against Whole Foods for overcharging on produce items in checkout was dismissed by Los Angeles Superior Court Judge William Highberger yesterday, November 3, according to source Law360.
Named plaintiff Michael Rose alleged that the retailer misled and overcharged produce buyers by having scales in the produce department that displayed a "misleadingly low weight" for items, having the scales at checkout stations calibrated to make items "appear heavier," and displaying falsely low per-pound prices in advertisements, Law360 reported.
Judge Highberger expressed skepticism due to lack of Rose’s actually alleging facts to support his original contention: that the grapes he bought at a Whole Foods market had in fact weighed less than what the checkout scale had indicated.
Rose filed suit in April alleging that during his shopping trip to Whole Foods in January, 2015, he weighed out one pound of grapes advertised as $3.99 per pound in the produce department, according to the report. At the register, however, he was charged double that amount, Rose’s attorney told the court Thursday.
While Judge Highberger contended that Whole Foods’ produce scales are not inspected and certified, its checkout scales are by county authorities. To that end he wrote that those scales are presumably accurate.
“Does he have any evidence, reason to know what the weight of the grapes was besides that he held them?” Judge Highberger said. “Is he somebody by holding grapes in his hand knows the weight?”
While the judge wrote that he would grant leave to amend should the consumer return with more verifiable evidence, it seemed unlikely when reading the report.
“If you make it work, Mr. Selik, credit to you, but if you’re hoping to make a lot of money on the produce scale theory, I don’t think I’m going to change my mind,” the judge told Rose’s attorney. “I’d say take your adverse ruling and talk to the court of appeals, but today’s not the day to send you to the court of appeals.”
The proposed class covers all Whole Foods shoppers who weighed their food in the grocery store’s produce department before purchasing during the past three years, which Rose estimated in the complaint to include at least 1,000 people.
