A California federal judge has fired a warning shot at a cadre of plaintiffs lawyers, cautioning them not to regard their proposed class action against The Coca Cola Company as a way to pile up legal fees.
U.S. District Judge Jeffrey White of the Northern District of California issued the blunt admonishment to the plaintiffs’ attorneys in Engurasoff v. Coca Cola, one of six cases preliminarily encompassed in proposed multidistrict litigation alleging Coca Cola falsely claims its iconic product does not contain added preservatives and artificial flavors.
In his August 21 order, White denied the bulk of Coca Cola’s motion to dismiss, finding the plaintiffs’ claims concerning phosphoric acid as an ingredient were neither preempted by the federal Food, Drug and Cosmetic Act, nor a matter of primary jurisdiction of the U.S. Food and Drug Administration. White also found no credence in Coca Cola’s contention that the plaintiffs failed to state a claim for relief. He dismissed the plaintiffs’ claim of breach of implied warranty, but he granted them an opportunity to amend it.
White closed his order with a stern broadside against the plaintiffs’ counsel: “The court admonishes plaintiffs that, to the extent they view this case, or the related cases, as an opportunity to settle a class action and obtain a large sum of attorneys’ fees, the court will review any request for attorneys’ fees as part of a class action settlement with close scrutiny,” the judge wrote.
Citing the plaintiffs’ 15-page brief and “voluminous exhibits” that went “far beyond” the legal application to the plaintiffs’ case of the Supreme Court’s June 12 ruling in POM Wonderful v. Coca Cola, White concluded with the observation that “Plaintiffs have been expending additional, unnecessary hours.”
Keith Fleischman of Fleischman Law Firm PLLC said in a statement to law.com: “Thus far, this has been a very hard fought litigation. Our sole intention in responding to the defendants’ supplemental briefing was to ensure a comprehensive response to all their arguments. Nonetheless, we are mindful of and, of course, will fully comply with the court’s guidance contained in its order substantially denying defendants’ motion to dismiss.”
Aside from Fleischman, the plaintiffs are represented by Bradley Silverman, of Fleischman Law Firm; Ben Pierce Gore, of Pratt & Associates; and Robert Plotz.
Coca Cola’s counsel are Tammy Webb and Ina Chung, of Shook Hardy & Bacon LLP; and Travis Tu, Steven Zalesin, Jane Metcalf, and Sarah Zgliniec, of Patterson Belknap Webb And Tyler LLP.
Lisa Hoffman contributes to law.com.