Totally Cool Ice Cream Class Action Filed Over Listeria Scare

An ice cream manufacturer has been hit with a class action lawsuit alleging it didn’t adequately warn consumers that its products could contain listeria, just two days after the company issued a massive ice cream recall over listeria contamination concerns. 

Plaintiff Leslie Price filed the class action lawsuit against Totally Cool Inc. on June 26 in a New York federal court, alleging violations of state and federal consumers laws. 

Just two days earlier, on June 24, Totally Cool Inc issued a recall of multiple brands of its ice cream. According to the recall published on the U.S. Food & Drug Administration (FDA) website, the ice creams have the potential to be contaminated with Listeria monocytogenes. At the time, no illnesses had been reported. 

However, Price alleges Totally Cool violated the law by not disclosing to consumers on its packaging that they were contaminated with listeria. 

“Consumers like the Plaintiff trust manufacturers such as Defendant to sell products that are safe and free from harmful known substances, including Listeria monocytogenes,” the lawsuit states. 

“Unfortunately for consumers… the ice cream and sorbet Products they purchased contain Listeria monocytogenes.”

Consumers Claim Ice Cream Recall Left Them Out in the Cold

Price alleges that after Totally Cool discovered the presence of listeria in the ice cream, it issued an “insufficient” recall.

She says, to be eligible for a refund, a consumer must keep the contaminated product and return it to the place of purchase with a receipt. This shows that the recall was designed to benefit very few of the consumers who bought the recalled ice cream, she says. 

“This recall was deliberately designed to preclude the vast majority of consumers from receiving a recall,” Price states. ”Defendant is well aware that any consumer who was made aware of the recall would be predisposed to throwing the Products away.”  

As a result, the best course of action for consumers was to file a class action lawsuit, she says. 

Lawsuit Alleges Totally Cool Ice Cream Unfit for Consumption

Price says consumers deserve their money back, seeming as the ice cream products are allegedly “in no way safe for human consumption and are entirely worthless.”

Included in the recall was multiple brands of ice cream, including Friendly’s Abilyn’s Frozen Bakery, Hershey’s Ice Cream, Yelloh!, Jeni’s, Cumberland Farms, The Frozen Farmer, Marco, Chipwich, AMAFruits, Taharka, Dolcezza Gelato, and LaSalle products — which were sold nationwide. 

In the Totally Cool ice cream class action lawsuit, Price is seeking to represent a nationwide class of consumers who bought any of the recalled ice creams. She is suing for violations of New York General Business Law and breach of warranty and is seeking certification of the class action, damages, fees, costs and a jury trial. 

Meanwhile, a New York judge has turned his eye to what he calls a “delightful dispute” about whether Cold Stone Creamery’s pistachio ice cream should contain pistachios, penning a playful order that allows class action claims to proceed in the case.

Case Details

• Lawsuit: Price v. Totally Cool Inc.,
• Case Number: 7:24-cv-04865 
• Court: U.S. District Court for the Southern District of New York

Plaintiffs' Attorneys

• Jason P. Sultzer and Daniel Markowitz (Sultzer & Lipari PLLC  )
• Nick Suciu III (Milberg Coleman Bryson Phillips Grossman PLLC )