The case of the missing Whole Foods yogurt

"Where is the yogurt?"

That's what a Texas judge asked last year after Whole Foods was slapped with a class-action lawsuit alleging that its store-brand Greek yogurt in 11 states - including Pennsylvania and New Jersey - contained nearly six times the sugar listed on the label.

The health-conscious grocer assured U.S. District Judge Sam Sparks at a June 2015 conference that samples of the yogurt had been retained for testing.

Except that might not have been true. Which could be a problem.

Friday, plaintiffs' attorneys filed a motion in Austin, Texas, where Whole Foods is based, contending that the company secretly destroyed its entire stash of Whole Foods 365 Everyday Value Plain Greek Yogurt. That came after lawsuits filed in 2014 in Philadelphia and elsewhere prompted the company to quietly pull the product from its shelves.

The lawsuits were filed after Consumer Reports analyzed six samples of the yogurt and found that they had 11.4 grams of sugar on average. Whole Foods' labels indicated that the yogurt had only 2 grams of sugar.

Joseph Osefchen of the Center City and Marlton law firm DeNittis Osefchen questioned how the company could inadvertently eliminate all of the evidence pertaining to an active lawsuit.

"The law is clear," Osefchen said. "You can't destroy evidence. If everyone could get out of a lawsuit by burning documents, then everyone would do that."

Osefchen, whose firm made headlines in 2013 for suing Subway over selling "footlong" sandwiches that measured less than 12 inches, said Whole Foods first claimed it had preserved the yogurt.

But Friday's motion for sanctions contends that in December, the supermarket chain disclosed in writing that it "believes the voluntarily withdrawn product was destroyed pursuant to Whole Foods protocol."

"How did it go in 16 months from 'We have plenty for testing' to 'We don't have it. There is no more on the planet'?" Osefchen asked.

A Whole Foods attorney referred questions about the case to a company representative.

"Whole Foods Market disputes the claims in the recent motion filed by the plaintiffs and intends to vigorously defend the allegations of spoliation, which we believe are unfounded," said spokeswoman Liz Burkhart. "Whole Foods Market took reasonable steps to preserve relevant evidence for this case and we believe there is more than sufficient evidence supporting that fact."

The company, which operates more than 435 stores in the United States, Canada, and the United Kingdom, removed the yogurt from store shelves in August 2014, shortly after it was sued over the sugar content in Pennsylvania and New Jersey.

In fact, it was Osefchen himself who learned of what he called the "disappearing yogurt" when he noticed a "gap" in the dairy section at the Whole Foods in Marlton about a week after the suits were filed.

"There's a friggin' two-foot hole in the dairy case," Osefchen said at the time.

The lawsuit, which was consolidated in Austin, hit a snag last month when the judge ruled against the plaintiffs because they had not conducted FDA-compliant testing, which requires samples from 12 cases of yogurt. Whole Foods could face legal ramifications if it destroyed all of the yogurt, making the stringent FDA test impossible.

"We can't do the test because they destroyed the stuff we needed to do the test," Osefchen. "My hope is, they can't get away with that."

Friday's motion accuses Whole Foods of "intentional destruction" of evidence and "knowingly concealing" it for 16 months.

"They knew they had a big mountain of yogurt," the attorney said. "It took hundreds of people to pull it off the shelves. They had to send it somewhere."

benderw@phillynews.com

215-854-5255@wbender99