JUSTIN PROCHNOW, GREENBERG TRAURIG: The formula is too perfect for plaintiff lawyers right now
Next we talked to Justin Prochnow, an attorney in the Denver office of law firm Greenberg Traurig.
FNU: Are food marketers pulling back from blanket 'all-natural'/'100% natural' claims?
Prochnow: Yes. Even though very few cases brought with respect to “all natural” claims have actually gotten anywhere close to a decision on the merits of the claims, the threat of litigation and cost of legal action has certainly caused companies to reevaluate all natural claims. Many companies have made more specific claims or qualified claims or switched gears and focused on what a product doesn’t have, such as “no artificial colors, preservatives and sweeteners.” This is certainly a case where the threat of litigation is serving to regulate such terms more than the government agencies tasked with regulating such claims.
FNU: How do you see these cases evolving?
Prochnow: I don’t know by specific numbers whether the number of cases is going up or down, but there doesn’t seem to be a slow down and I wouldn’t expect there would be until a decision comes out strongly against such claims or some other restriction is put on them. The formula is too perfect for plaintiff lawyers right now. Plaintiff lawyers know that the cost of litigation compared with a settlement priced at the right amount often makes settlement the best option from a business standpoint, which is the reason why these cases continue to be filed. Until companies fight these cases on a regular basis and make it impracticable for plaintiff attorneys to fund them, they will continue to be filed.
FNU: Are these suits the only way to keep overzealous marketers in check?
Prochnow: I suppose the answer to that question depends on what position you are coming from. Plaintiff lawyers will say that they are championing the cause of the consumers; however, its hard to believe there is a line of aggrieved consumers forming outside the half dozen to dozen plaintiff lawyers’ firms that are routinely on these cases, especially when some of the same people keep popping up as the named plaintiffs.
