Have ‘all-natural’ lawsuits peaked? And what defense strategies are working?
Speaking at a webinar on ‘all-natural’ civil litigation hosted by continuing legal education provider Perrin Conferences on Wednesday Feb 19, Erik Connolly, a partner in Winston & Strawn’s Chicago office, said there was a sudden surge in such lawsuits in 2011 (49 cases) and 2012 (85 cases), but a drop off in 2013 (58 cases).
However, this does not necessarily mean plaintiffs’ attorneys are losing interest, he said, noting that owing to the length of time it has taken for many of these cases to move through the courts, some legal firms may just be waiting to see how some play out before filing fresh complaints.
He added: “If you have not already been sued, chances are that you are on the radar.”
Just because the filings were down in 2013 doesn’t mean the trend has peaked
Anne Regan, a partner at Zimmerman Reed in Minneapolis, said uncertainty over whether the FDA might weigh in on this issue may have had a “dampening effect” in late 2013 (three high-profile cases were put on ice last year as judges asked the FDA to come to an administrative determination on whether GMOs belong in ‘natural’ foods, while the GMA also said it would petition the agency to clarify this issue).
However, in January 2014, the FDA declined to come to such a determination (click here) - at least in the context of private litigation - said Regan, so it will be interesting to see if things pick up again in 2014.
Jeff White, a partner at Robinson & Cole in Hartford, Connecticut, added: “Just because the filings were down in 2013 doesn’t mean the trend has peaked.”
California: The food court?
As to where the complaints are being filed, California is still the “epicenter for all-natural litigation” for several reasons, said Connolly.
First, it has robust consumer protection laws, but there are other considerations plaintiffs’ lawyers might consider, including that larger classes could be certified; jury pools could prove more health-conscious (and therefore more favorable to the plaintiff); but also because it’s easier to predict what might happen as so many cases have been filed there.
Defense strategies in ‘all-natural’ cases
As to what strategies are working for companies targeted in these lawsuits, said Connolly, an analysis of tactics employed in motions to dismiss such cases in 2012 and 2013 shows that express and implied pre-emption, primary jurisdiction, standing, plausibility, and particularity, have all proved successful.
However, what often happens is that motions to dismiss are granted in part and denied in part, so it’s very rare that food companies can “declare a total victory” at this stage in a case, he said.
In cases where a class is certified, meanwhile, defendants typically choose to settle rather than see a case go to summary judgment or to trial, said Regan.
“None of these ‘all-natural’ cases has gone to trial as far as I am aware.”
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