McLean v. WalMart, Inc.

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
GARY McLEAN, Individually and on Behalf of
All Others Similarly Situated 	PLAINTIFFS
V. 	CASE NO. 5:24-CV-5189
WALMART, INC. 	DEFENDANT
OPINION AND ORDER
Now before the Court is Defendant Walmart, Inc.’s Motion to Dismiss based on
lack of subject matter jurisdiction and failure to state a claim. (Doc. 26). 	Plaintiff Gary
McLean filed a Response in Opposition (Doc. 31), and Walmart filed a Reply (Doc. 35).
This case arises out of Walmart’s recall of its house-brand apple juice because the
juice contained inorganic arsenic in amounts that exceeded the action level established
by the Food and Drug Administration (“FDA”).1 See Doc. 2, ¶¶ 9–10, 24–25. Inorganic
arsenic is harmful to humans, especially children. 	Id. ¶¶ 5, 7–8. 	In 2008, the FDA
identified 23 parts per billion (“ppb”) as a level of concern for inorganic arsenic in apple
juice based on an assessment of short-term exposure risk. 	U.S. Food & Drug Admin.,
Action Level for Inorganic Arsenic in Apple Juice: Guidance for Industry 6 (2023) (Doc 2,
¶ 25 n.12).2 After further study on the risks of chronic exposure to inorganic arsenic, the
FDA set the action level for inorganic arsenic in apple juice at 10 ppb in June of 2023. Id.
at p. 8.
1 An “action level” is the amount of a poisonous or deleterious substance contained in a
food at which the food can be considered “adulterated” within the meaning of 21 U.S.C.
§ 342. See 21 C.F.R. § 109.4(c).
2 	https://www.fda.gov/media/86110/download?attachment 	[https://perma.cc/5EME-
7MTH].
Case 5:24-cv-05189-TLB Document 44 Filed 05/14/25 Page 1 of 6 PageID #:
<pageID>

2
On August 15, 2024, Walmart recalled 9,535 cases of Great Value apple juice after
testing revealed that some of the juice contained 13.2 ppb inorganic arsenic. 	(Doc. 2,
¶¶ 1, 24). McLean alleges that he purchased the recalled juice without knowledge of its
arsenic content and brings this purported class action on behalf of himself and all other
U.S. purchasers. Id. ¶¶ 15, 18, 31, 33. McLean does not allege that he has suffered any
adverse health effects as a result of consuming the juice. McLean seeks both damages
and injunctive relief. (Doc. 2, p. 21).
Walmart argues that McLean’s claims are moot and that McLean lacks standing
because Walmart voluntarily recalled the juice and offered a full refund before this case
was filed. 	(Doc. 27, p. 6). 	“A case is considered moot ‘when, during the course of
litigation, the issues presented in a case lose their life because of the passage of time or
a change in circumstances and a federal court can no longer grant effective relief.’” Young
Am.'s Found. v. Kaler, 14 F.4th 879, 886 (8th Cir. 2021) (cleaned up) (quoting Ali v.
Cangemi, 419 F.3d 722, 723 (8th Cir. 2005) (en banc)). 	“[T]he difference between
standing and mootness doctrines is merely one of ‘time frame: The requisite personal
interest that must exist at the commencement of the litigation (standing) must continue
throughout its existence (mootness).’” Sisney v. Kaemingk, 15 F.4th 1181, 1194 (8th Cir.
2021) (quoting Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 68 n.22 (1997)). Because
the refund program started before the instant litigation, standing, rather than mootness,
is the appropriate lens through which to view Walmart’s challenge, although the mootness
cases cited by the parties provide helpful guidance.
“Article III extends judicial power only to ‘cases’ and ‘controversies.’” 	Kuhns v.
Scottrade, Inc., 868 F.3d 711, 716 (8th Cir. 2017). To establish standing under Article III,
Case 5:24-cv-05189-TLB Document 44 Filed 05/14/25 Page 2 of 6 PageID #:
<pageID>

3
a plaintiff must establish that he “(1) suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). “[N]amed
plaintiffs who represent a class ‘must allege and show that they personally have been
injured, not that injury has been suffered by other, unidentified members of the class to
which they belong and which they purport to represent.’” Simon v. E. Ky. Welfare Rts.
Org., 426 U.S. 26, 40 (1976) (quoting Warth v. Seldin, 422 U.S. 490, 502 (1975)).
With respect to damages, Walmart argues that it has already offered a complete
remedy to McLean via its purchase-price refund, so any economic injury McLean has
suffered is traceable only to his own failure to take advantage of that refund, not to
Walmart’s conduct. 	Walmart also points out that McLean has not alleged that he
experienced any other harm—such as adverse health effects—for which he could recover
damages beyond the purchase price of the juice.
McLean does not deny that Walmart offered him, and he could take advantage of,
a full refund. 	Instead, he argues that a refund of the purchase price would not
compensate him for “the temporary deprivation and lost time value of money” spent on
the juice, which, he contends, constitutes an Article III injury. (Doc. 31, p. 4). The Eighth
Circuit has not addressed this issue, so the Court turns to the non-binding cases
presented by the parties.
Walmart points to Hoekman v. Education Minnesota, 519 F. Supp. 3d 497, 510 (D.
Minn. 2021), aff'd, 41 F.4th 969 (8th Cir. 2022), and Charlton v. LG Energy Solution
Michigan, Inc., 2023 WL 1420726, at *5 (S.D. Cal. Jan. 31, 2023). In Hoekman, the court
found that the plaintiff lacked standing to sue over disputed union dues because the union
Case 5:24-cv-05189-TLB Document 44 Filed 05/14/25 Page 3 of 6 PageID #:
<pageID>

4
had already issued the plaintiff an unconditional refund. The plaintiff therefore “d[id] not
allege any injury for th[e] Court to redress.” 519 F. Supp. 3d at 510–11. And in Charlton,
the court found that “there is no live case or controversy as required under Article III”
where the defendant’s “recall program adequately addresses and remedies the alleged
[product] defect.” 2023 WL 1420726, at *5.
Walmart also cites Taylor v. Walter Kidde Portable Equipment, Inc., 727 F. Supp.
3d 534, 547–48 (M.D.N.C. 2024), which provides a helpful counterexample. There, the
court found that the plaintiffs had standing despite the existence of a recall program
because plaintiffs alleged “unresponsive web pages and long wait times for replacement
units that never arrive,” which meant that plaintiffs were not actually able to take
advantage of the supposed recall. Id. at 547.
McLean points to Hill v. LLR, Inc., 2019 WL 2404900, at *7–9 (D. Mont. Mar. 8,
2019), report and recommendation adopted as modified, 2019 WL 3024896 (D. Mont.
July 11, 2019), and Weidenhamer v. Expedia, Inc., 2015 WL 1292978, at *3–4 (W.D.
Wash. Mar. 23, 2015). 	Hill and Weidenhamer both arose from alleged overcharges to
consumers. In Hill, purchasers were charged state sales tax even when they purchased
products in states with no sales tax. 	2019 WL 2404900, at *1. 	In Weidenhamer, the
defendant charged purchasers full price despite advertising a 5% discount for airfare
purchased through its mobile app. 	2015 WL 1292978, at *1. 	In both cases, the courts
concluded that “the temporary deprivation of money by defendant, combined with the lost
time value of that money, constitutes a cognizable Article III injury.” 	Hill, 2019 WL
2404900, at *8; Weidenhamer, 2015 WL 1292978, at *4.
Case 5:24-cv-05189-TLB Document 44 Filed 05/14/25 Page 4 of 6 PageID #:
<pageID>

5
Here, the Court finds Walmart’s position more persuasive. 	Walmart offered
McLean an adequate remedy before he filed suit, and McLean has not alleged that the
refund program is somehow inaccessible. The Court believes that there is an important
distinction between claims arising directly from the wrongful deprivation of money, e.g.,
overcharging or theft, and claims arising from the purchase of defective products. In the
former situation, the harm is itself the deprivation of the money. In the latter, the harm is
the flaw in the product, and the purported deprivation of money follows from the
supposition that the customer would not have paid, or would not have paid as much, for
the product if they had known about the flaw. 	Walmart points out that McLean has not
even identified when he purchased the recalled juice, so the Court does not know how
much time elapsed between his purchase and Walmart’s refund offer. 	The Court finds
that the lost time value—for some unidentified period—of the purchase price of a
defective product is, on its own, too conjectural and hypothetical to establish an Article III
injury.
Walmart also contests McLean’s standing to seek an injunction. 	When “plaintiffs
request forward-looking relief, they must face ‘a real and immediate threat of repeated
injury.’” Murthy v. Missouri, 603 U.S. 43, 58 (2024) (quoting O'Shea v. Littleton, 414 U.S.
488, 496 (1974)). “Past exposure to illegal conduct does not in itself show a present case
or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present
adverse effects.” O'Shea, 414 U.S. at 495–96.
McLean argues that he and the class “have no way to know that the [juice] or any
other products under the ‘Great Value’ brand are accurate or safe to consume as they
were deceived once before.” (Doc. 31, pp. 7–8). McLean does not assert in his complaint
Case 5:24-cv-05189-TLB Document 44 Filed 05/14/25 Page 5 of 6 PageID #:
<pageID>

6
that he wishes to purchase Great Value apple juice or any other Great Value products in
the future. 	Nor does he allege that any Great Value product currently on the shelf at
Walmart contains excessive arsenic. McLean’s fool-me-once claim for injunctive relief is
based on exactly the kind of speculative future harm that courts routinely find insufficient
to establish standing; McLean has not shown that he is likely to be harmed by Great Value
products in the future, let alone that such harm is imminent. See Lujan v. Defs. of Wildlife,
504 U.S. 555, 564 (1992); Sessler v. City of Davenport, 990 F.3d 1150, 1156 (8th Cir.
2021). Therefore, McLean does not have standing to seek an injunction.
IT IS THEREFORE ORDERED that Walmart’s Motion to Dismiss (Doc. 26) is
GRANTED. The case is DISMISSED WITHOUT PREJUDICE.3
IT IS SO ORDERED on this 14 th day of May, 2025.
_____________________________
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE
3 Walmart asks the Court to dismiss the case with prejudice, but “[a] district court is
generally barred from dismissing a case with prejudice if it concludes subject matter
jurisdiction is absent.” County of Mille Lacs v. Benjamin, 361 F.3d 460, 464–65 (8th Cir.
2004).
Case 5:24-cv-05189-TLB Document 44 Filed 05/14/25 Page 6 of 6 PageID #:
<pageID>