Mayer Brown swung for a TKO against the team of plaintiffs lawyers behind a recent wave of food labeling litigation. But in the end, it lost the food fight.
On Friday U.S. District Judge Lucy Koh in San Jose denied Mayer Brown's motion to disqualify plaintiffs counsel based on their use of an expert previously consulted by the defendant, yogurt maker Chobani Inc.
In her order, Koh blamed plaintiffs lawyers for not immediately disclosing their intent to hire EAS Consulting Group to work on other food labeling litigation once a possible conflict with Chobani came to light. However, she called disqualification too harsh of an action, citing a lack of evidence that FDA regulatory expert Elizabeth Campbell of EAS had ever disclosed privileged information to plaintiffs' attorneys.
Koh scolded plaintiffs lawyers for not alerting Chobani as soon as they became aware EAS had a conflict. "Plaintiffs' counsel's failure to make this 'simple phone call' risked breaching Chobani's confidences, and could have required plaintiffs' counsel's disqualification," Koh wrote.
"While the failure to take these steps may be 'justly criticized,'" she added, "it does not justify the potentially 'disastrous' consequences of disqualifying counsel in this case."
Chobani is represented by Mayer Brown L.A. partner Dale Giali.
In Kane v. Chobani, plaintiffs accuse Chobani of misleading customers with "all natural" labeling and by listing "evaporated cane juice" as an ingredient rather than sugar. The case is among about three dozen food labeling cases in the Northern District brought by the same plaintiffs lawyers.
Koh's order disqualifies Campbell and EAS as experts and prohibits plaintiffs counsel from speaking with them about issues overlapping with the Chobani litigation.
Don Barrett, the drawling Mississippi plaintiffs lawyer of Big Tobacco fame, said that won't affect his group's other food labeling cases. Barrett of Barrett Law Group is spearheading the litigation with Robert Clifford of Clifford Law Offices of Chicago. Pierce Gore of Pratt & Associates in San Jose is lead local counsel.
Barrett said plaintiffs have already replaced Campbell with another expert who formerly oversaw the Food and Drug Administration office that drafts food labeling regulations.
"They brought the motion as a tactic, and they were unsuccessful," Barrett said. "They wasted a lot of the court's time and our time. We're now looking forward to dealing with Chobani on the merits."