The Northern District of California?

The Northern District of California?

Cross-posted at WLF’s contributor page

Public health activists and their allies in the plaintiffs’ bar want us to believe that consumers are fed up with food and beverage company misinformation and are marching into lawyers’ offices seeking help to redress their grievances.

This is an appealing, Erin Brockovich-like conception of litigation, but is quite far from reality with regards to why scores of class action lawsuits are pending in federal courts against companies like Kraft, Dole Foods, and even Costco. Such litigation, like the 1990s lawsuit crusade against tobacco companies, is lawyer-driven and industry-targeted. An article last March from American Lawyer Media’s Recorder related:

The latest push in food cases are so-called misbranding claims based on allegations that food labels are not simply misleading to consumers but explicitly violate federal standards.

That has been the primary legal weapon of the consortium led by Don Barrett, a Mississippi lawyer who made millions suing Big Tobacco, and Robert Clifford, a Chicago lawyer whose practice previously focused on commercial airline accidents.

Advised by a former director of the FDA’s Office of Food Labeling, the group spent two years poring over FDA regulations. Also on board as a consultant is UCSF professor Robert Lustig, author of a new book linking sugar and processed foods to obesity and disease.

Last year the group filed 24 suits in less than two months against companies like Procter & Gamble Co., Unilever and ConAgra Foods. More recent suits target smaller brands in the natural food market, like Wallaby Yogurt Co., WholeSoy & Co. and Green Valley Organics.

A motion filed by Chobani to disqualify this consortium of lawyers from a lawsuit against the company in the U.S. District Court for the Northern District of California offers a more detailed view of the lawyers’ tactics and indiscriminate targeting. Chobani argues that the lawyers should be disqualified because they hired a federal labeling law expert whom Chobani had previously retained and who had participated in discussions with Chobani’s legal team about litigation strategy.

Chobani is one of over 30 food-related companies sued by the same lawyers in the same court, the Northern District of California. The disqualification motion notes that “the cases substantially overlap,” to the point that “in the initial paragraph of the Factual Allegations, the Complaints all contain nearly identical language about the FDA.”

Why the Northern District of California? The plaintiff’s lawyer targeted by Chobani’s motion told The Recorder, “The law is more favorable here than in any other jurisdictions that we’ve looked at.” Arnold & Porter partner William Stern, a recent author of a WLF Legal Opinion Letter, said pointedly, “It’s like having a welcome mat on the front door.”

In case there’s any doubt about the copycat nature of these suits, we offer a spreadsheet that features links to each complaint. The companies this consortium of lawyers has sued include:

  • 7-Eleven, Inc.
  • Blue Diamond Growers
  • The Bromley Tea Company
  • Bumble Bee Foods, LLC
  • Chobani, Inc.
  • ConAgra Foods, Inc.
  • Costco Wholesale Corporation
  • Del Monte Corporation
  • Dole Foods Company, Inc.
  • Frito-Lay Food Company, Inc.
  • Gerber Products Company
  • The Hain Celestial Group, Inc.
  • The Hershey Company
  • Kraft Foods Global, Inc.
  • Nature’s Path Foods, Inc.
  • Nestle USA, Inc.
  • Ocean Spray Cranberries, Inc.
  • Odwalla, Inc.
  • Proctor and Gamble Company
  • R.C. Bigelow, Inc.
  • Green Valley Organics, L.P.
  • Sunsweet Growers, Inc.
  • Tetley USA, Inc.
  • Turtle Mountain, LLC
  • Twinings North America, Inc.
  • Unilever United States, Inc.
  • Wallaby Yogurt Company, Inc.
  • Whole Foods Market, Inc.
  • Wholesoy & Co.
  • Wrigley Sales Company