The U.S. Department of Justice (DOJ) has filed a plan with the U.S. District Court in Albany, GA, for notifying victims of the first Salmonella outbreak involving peanut butter ever to occur in the United States. The notification is about a pending criminal case that might offer them one last chance of obtaining restitution from the maker of Peter Pan and Great Value peanut butters.
Omaha-based ConAgra, the food conglomerate that makes peanut butter at a plant in Sylvester, GA, has already paid out $36 million in civil settlements to victims of the 2006-07 Salmonella outbreak. That outbreak caused ConAgra to recall all the peanut butter it had produced going back to October 2004 and pull its iconic peanut butter brand from store shelves. It did the same for the Great Value brand, which was produced for Walmart stores. The Sylvester plant was shut down while ConAgra decided what needed to be fixed.
An outbreak involving peanut butter was unprecedented at the time and sent consumers by the thousands to cupboards and pantries to see if their jars of Peter Pan or Great Value peanut butter came with a lid imprinted with the “2111” number included in the recall. ConAgra was offering to reimburse consumers who returned lids imprinted with the “2111,” but many — an estimated 25,000 — took them to lawyers instead.
While the resulting civil claims were settled some time ago, only last May did the U.S. Attorney for the Middle District of Georgia and ConAgra Grocery Products LLC, a subsidiary of ConAgra Foods Inc., reach an agreement that saw the company pleading guilty to one misdemeanor count of shipping the contaminated peanut butter during the outbreak. ConAgra has also agreed to pay a criminal fine of $8 million and forfeit $3.2 million in assets.
The plea agreement is not official until approved by U.S. District Court Judge W. Louis Sands, and criminal case rules require the judge to adhere to the requirements of the Victims’ Rights and Restitution Act before sentencing becomes final. The act gives victims “the right to full and timely restitution.”
Sands rejected the government’s first plan for notifying victims and called for a more robust effort from DOJ. While presenting a new plan, government attorneys say there are limits to what can be expected to come out of any notification exercise.
“There is no practical way to locate and contact everyone who may have eaten the defendant’s peanut butter in 2006-2007, but who has not already pursued a claim and been compensated for any harm they may have suffered, without unduly prolonging and complicating these criminal proceedings,” they wrote the court in their motion for a notification procedure.
They added this in a footnote: “Regarding potential restitution, the government notes that the 2007 plant shutdown and recall took place eight years ago. The government understands that following the recall, ConAgra paid more than $36 million in settlements to thousands of consumers. Some of those consumers pursued civil claims, either individually or through class-action lawsuits. Showing that any particular consumer not previously compensated though the civil process was directly and proximately harmed by the defendant’s peanut butter presumably would require that consumer to provide medical evidence obtained years ago.”
The government new plan continues to rely on DOJ’s Victim Notification System (VNS), which will inform victims known to the government by letter about the pending criminal case against ConAgra. Those letters were mailed in June.
Victims who register for automatic email notifications are kept informed about case proceedings. As for the unknown potential victims, government attorneys want to publish weekly legal notices in USA Today for three weeks. The nationally distributed newspaper has a circulation of 1.2 million. In addition, DOJ proposes a case-specific webpage linked both to the USA Today advertisement and the VNS system.
“The salmonella poisoning outbreak affected thousands of unknown consumers scattered throughout the United States,” government attorneys wrote. “These consumers share no common link other than the fact that they, at some point, ate a particular brand of peanut butter. There is no specific publication more likely than others to reach these consumers, and no region or state in which the government could concentrate notification efforts.”
The government argues that its new plan provides reasonable notice. Attorneys for ConAgra have not yet responded, nor is the judge scheduled to rule on the motion at any specific time.
The first-of-its-kind Salmonella outbreak began in August 2006 and continued into 2007 with more than 700 confirmed cases of salmonellosis. The U.S. Centers for Disease Control and Prevention (CDC) estimated that thousands of additional cases went unreported. No deaths were linked to the outbreak.
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