Label lawsuit against Hy-Vee is dismissed

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Posted: Thursday, March 6, 2014 12:00 am

The lawsuit filed against Hy-Vee Inc. and a Gretna company called NNW over a nutritional supplement has been voluntarily dismissed by the plaintiff, according to court records.

Kansas City attorney David Guastello, representing Nebraska consumer Olivia Ruhlman, filed the notice of voluntary dismissal this week in U.S. District Court in Omaha.

The case is listed as terminated in court records. The notice of voluntary dismissal by the filing party gives no reason, as is typical with such filings. Guastello did not respond to email and telephone inquiries.

Hy-Vee had no comment on the suit's dismissal, spokeswoman Chris Friesleben said. She said last month that the retailer stopped selling Healthy 100% Whey in September after receiving a recall notice from NNW.

James Cann, NNW's lawyer, said the dismissal of the suit is not the result of any negotiation.

“The dismissal is not the result of any settlement or compromise with NNW LLC or anyone acting on its behalf, but instead occurred because the plaintiff apparently chose to dismiss claims that NNW LLC viewed as being meritless,” Cann said. “NNW LLC regrets the inconvenience the claims have caused to customers.”

The suit was filed last month and sought class-action status on behalf of other consumers who bought Healthy 100% Whey powder from Hy-Vee, the West Des Moines-based grocery chain with about $7 billion in annual revenue.

Hy-Vee sold the nutritional supplement, supplied by distributor NNW, from 2009 into 2013, the suit said.

According to the lawsuit, the label on the whey powder — a nutritional supplement derived from dairy production leftovers — was inaccurate, running afoul of Nebraska consumer protection laws designed to ensure people get what they pay for.

The suit said the product was mislabeled as having 22 grams of protein and one gram of sugar per 28-gram serving when it had less than five grams of protein and more than 20 grams of sugar per 28-gram serving. The whey powder sold for as much as $45 for five pounds.

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