“You got your lawsuit in my peanut butter.” “You got your peanut butter in my lawsuit.”

On February 14, 2007, the Food & Drug Administration issued a recall for certain brands of peanut butter manufactured by ConAgra. On March 1, 2007, the FDA announced it had identified the salmonella at the manufacturing plant. Enter the lawyers.

On Wednesday, a Louisville, Kentucky man who claimed he got sick after eating the peanut butter, filed suit against ConAgra. (The story featured a disclaimer I don’t believe I’ve seen elsewhere in news coverage of litigation: “Claims made in filing a lawsuit give only one side of the case.”) I certainly didn’t think that this was the first suit filed against ConAgra, but I naively thought it was one of the first. Ha! (In my defense, I wasn’t blogging at Overlawyered at the time, and I hadn’t eaten the peanut butter, so I didn’t have any particular personal or professional reason to notice the announcements of the lawsuits.)

The first suits — at least three of them — appear to have been filed on February 16, 2007, just two days after the FDA’s announcement. Each of those three involved individual plaintiffs; in case you were wondering, the first (of many) class action lawsuits seems to have waited until February 20, 2007. The huge four-day gap between the filing of the individual suits and the class-action suits is explained by the three-day Presidents Day holiday; Feb. 20 was actually the next business day.

Is there some sort of trial lawyer contest like the old Name That Tune game show? “I can file that suit in 72 hours.” “I can file that suit in 48 hours.” “Okay, file that suit!” There’s certainly no legal reason the suits need to be filed that fast; there was no approaching statute of limitations, for instance.


  • Winning the race to the courthouse garners publicity, which in turn garners clients, which in turn maximizes the chance that one will be named as the lead counsel in the class action or that the defense counsel will choose to negotiate settlement with you.

  • Ironically, my wife found a jar of this very peanut butter (with lot number) in our cabinet. T’was purchased at an extremely large retailer whose HQ is in Arkansas. About the same time I ate a PB&J made from said spread (thank you…) I came down with a nasty case of the…well, you get the idea. Upon discovering that my spread was 1) made by a deep pocketed Mfr. and 2) sold to us by an even deeper pocketed retailer, I did what any rational person would do: I threw it away. What I did NOT do was, nor did it occur to me or my wife, was place a call to “Dewey, Cheatem & How, LLP.” But now that I reveal this fact on Overlawyered, I wonder if I will get a request in the mail to participate in a suit. Details to follow…

  • Todd, since we’ve hit the class action stage, you’re more likely to get notice that you are already participating in such a suit.

  • David,

    Actually, there is a sound legal reason to file very quickly. In situations like this there will obviously be large numbers of suits filed against ConAgra all over the country. That creates a substantial risk that the cases will be consolidated by the Multi-District Litigation (“MDL”) Panel. If you’ve already filed a case at the time MDL consolidation happens, you will potentially be able to influence where the MDL Panel sends the consolidated cases for pre-trial purposes and have input on the scheduling order. Cases filed after the MDL Panel enters the scene are called “tag along cases” and the plaintiffs’ counsel in those cases are at a severe disadvantage in terms of location of the hearings and the course of pre-trial activities. Frequently, “tag along” plaintiffs will fire their original lawyers and hire an attorney who represented an early filer.

  • Actually, you’d be prtty likly to NOT get notice at all, but be participating, anyway.

  • I, too, discovered that my already half eaten jar of peanut butter from [Arkansas retailer] is affected by the recall. I never got sick from mine, but maybe I can sue over the stress caused by my near brush with death, eh?

    Actually, the debate in my household is whether I should eat the rest. I figure my jar is safe, since I didn’t get sick before, but my husband thinks I should throw it out just in case.

  • The lawyers want to race to be the one’s getting $50 million in legal fees – while their clients get a coupon for $0.25 off on a new jar of peanut butter.