While most ECJ-related lawsuits have been dismissed without prejudice (which means plaintiffs can re-file) or stayed (kicked into the long grass) following the FDA’s March 5 announcement to re-open comments on its 2009 draft guidance on ECJ, several brand new lawsuits have been filed since then, while two that had been dismissed without prejudice are now back in play pending finalized guidance from the FDA.
The lawsuits back in play - against Amy’s Kitchen and Santa Cruz Natural - had been dismissed without prejudice in April on primary jurisdiction grounds (ie. this is a matter for the FDA not the courts). But last month, US district judge Susan Illston reversed the dismissals and stayed both cases, setting status hearings for December.
Meanwhile, new cases filed since the FDA’s March 5 announcement against firms including Chobani and Peanut Butter & Co continue to cite the agency’s draft guidance on ECJ (which advises manufacturers not to use the term on labels), and make no reference to the fact this guidance may soon be updated.
Plaintiffs’ lawyers still want to get their lawsuits on file just in case finalized FDA guidance mirrors its draft guidance
So what do legal experts make of these recent developments?
David Biderman, a partner in Perkins Coie’s Consumer Class Action Defense practice, told FoodNavigator-USA that plaintiffs’ lawyers “still want to get their lawsuits on file just in case the FDA is not favorable to the manufacturers”.
William Dance, LA-based attorney at law firm Tucker Ellis LLP, added: “Maybe it makes sense to the lawyers to get on the bandwagon on the chance that the FDA ultimately says ECJ is just sugar.”
I do not think this indicates renewed viability for ECJ suits
As for the reversed orders, this is more of a technical issue, said both attorneys, as the plaintiffs claimed they would be disadvantaged by a dismissal without prejudice because there is a strong likelihood that the statute of limitations on some of their claims might expire by the time the FDA issues a final guidance document. They would also likely lose at least a year or more off the class period.
“I do not think this indicates renewed viability for ECJ suits," said Dance. "In both orders, the court rejected plaintiffs’ efforts to reargue the substantive issues and focused only on the requests to revise the orders from dismissals without prejudice to stays.
“By staying rather than dismissing, the court can then reactivate the existing case, if appropriate, once the FDA acts or if it becomes clear that the agency is not going to act despite the announcement.”
*The cases are Figy v Amy’s Kitchen Inc., 13-cv–03816; Swearingen v. Santa Cruz Natural Inc., 13–cv-04291; Shaouli v Peanut Butter & Co Inc., No. BC550157; and Stolz v Chobani LLC, 14-cv-03827.