One of the busiest law firms in the country this year? Roll Law Group, perhaps better known as the in-house team for POM Wonderful, a pomegranate juice purveyor with a penchant for high-profile litigation. The 40-lawyer team (and the company’s outside counsel) was entrenched in litigation in courts across the country, pursuing claims against competitors, fighting the press and battling federal regulatory agencies. POM was both plaintiff and defendant in a series of actions in federal and local courts — grappling with a legal fee dispute, bringing claims against juice competitors over advertising and labeling and challenging the Federal Trade Commission over allegations of deceptive advertising. What follows are key moments in a very active litigation year for POM.
One of Washington’s biggest law firms took on POM in February, demanding the juice maker cough up more than a half-million dollars in alleged unpaid legal bills. POM called Hogan Lovells’ fees “exorbitant.” (The tab: $666,200.) Much of the litigation took place under seal — setting up a First Amendment fight with this newspaper over access to court documents (see July). The fee fight has since settled for an undisclosed amount.
In Los Angeles, POM tried to open another litigation front, suing Minute Maid over that company’s Pomegranate Blueberry Flavored Blend. POM claimed Minute Maid (and parent The Coca-Cola Co.) violated federal juice-naming and labeling rules. A judge, however, tossed the suit on summary judgment. Lawyers for POM, including Seth Waxman, chairman of the appellate practice at Washington’s Wilmer Cutler Pickering Hale and Dorr, want an appeals court to overturn the ruling.
POM owner Lynda Resnick is well-known for having helped Daniel Ellsberg as he tried to release the Pentagon Papers — which, of course, triggered an epic First Amendment battle. This time, however, the company was on the other side of the fight. Represented by Barry Coburn of Washington’s Coburn & Coffman, POM sued to block The National Law Journal from publishing the identity of a federal agency (the FTC), which papers in the Hogan suit revealed was investigating the juice maker. Bruce Brown, a media law partner at Baker Hostetler representing the paper, tried to convince D.C. Superior Court Judge Judith Bartnoff that the order would be an unconstitutional prior restraint of the publication. “If I am throwing 80 years of First Amendment jurisprudence on its head, so be it,” Bartnoff said at a hearing and granted POM’s request. Bartnoff’s decision ignited a mini media frenzy, and the newspaper appealed to the D.C Court of Appeals (supported, in a brief filed by Williams & Connolly, by several other media outlets.) Soon after, POM abruptly asked Bartnoff to rescind her order, and the company issued a statement that it never intended the matter “to become a First Amendment issue.”
With the FTC investigation now public, POM made a pre-emptive strike — suing the agency in Washington to challenge what the company’s lawyers called a “new standard” for the evaluation of deceptive practices and false advertising. The FTC called the suit baseless; the agency’s motion to dismiss is pending. The FTC fired back shortly after, charging the company with deceptive trade practices. “Any consumer who sees POM Wonderful products as a silver bullet against disease has been misled,” said David Vladeck, director of the FTC Bureau of Consumer Protection. Meanwhile, POM got a mixed decision in a fight with another competitor, Welch Foods Inc. A California jury found that Welch deliberately duped consumers in marketing of its White Grape Pomegranate juice, which contains larger portions of white grape and apple juice than pomegranate. But the good news for POM stopped there: The jury also found Welch’s juice didn’t affect POM’s sales — and awarded no damages.
Back in Washington, the wrangling in the fee dispute with Hogan took another turn — this time ensnaring POM’s lawyer, Barry Coburn. Judge Bartnoff learned that POM, which had fought bitterly to keep word of the FTC probe sealed, had actually revealed it in unrelated litigation in California. Bartnoff didn’t sanction Coburn, finding that he relied on statements from POM’s in-house team, including senior counsel Kristina Diaz. At a hearing, Diaz offered what she called a “huge apology” to the company’s lawyers. “We are embarrassed and we are extremely apologetic to this court and to our counsel,” Diaz said.
In yet another juice-maker-on-juice-maker scuffle, a federal judge in Los Angeles issued a final judgment in a trademark case pitting POM against Tropicana Products Inc. A jury found that Tropicana’s advertising and labeling of its Pure Pomegranate Blueberry juice drink did not deceive or mislead consumers into believing it was made from 100% pomegranate juice.
Naturally, 2010 won’t mark an end to POM litigation; like an overturned POM bottle, there is spillover. POM has two pending cases in the U.S. Court of Appeals for the 9th Circuit, and the company’s suit in Washington against the FTC is ongoing. On tap for next July: a jury trial in the company’s suit against Ocean Spray Cranberries Inc. over alleged false and misleading representations about one of the company’s juices.
Mike Scarcella can be contacted at firstname.lastname@example.org.