Next we contacted David Biderman, a partner in Perkins Coie’s consumer class action defense practice.
FNU: Is the threat of litigation making firms more cautious about making natural claims?
Biderman: The proliferation of lawsuits - and I believe most are not justified - has nonetheless caused food manufacturers to be more cautious in making such claims because of the propensity for class action plaintiffs to sue. Baseless or not, who wants to buy into a lawsuit?
FNU: Is the number of lawsuits over natural claims rising, falling or leveling off?
Biderman: I see these claims as leveling off or dropping. The existing suits are coming closer to decision points, class certification or otherwise, and at some point we would expect some appellate guidance on class certification of these cases.
FNU: What can we learn from cases to date?
Biderman: The rulings on class certification are all over the map. The better decisions have recognized that a class cannot be certified because the definition of ‘natural’ is vague and a common definition is not shared by class members and also that there is no reasonable basis for calculating damages on a class wide basis.
FNU: Who is driving all the litigation? Angry consumers or opportunistic lawyers?
Biderman: I see these cases as being driven more by the plaintiff class action bar.
FNU: Should/will the FDA define ‘natural’?
Biderman: I don’t think the FDA will weigh in at this stage. They have made clear their resources are thin and I would expect more guidance from appellate courts as they review class certification decisions or other pre-trial rulings on motions to dismiss or summary judgment. That appellate guidance would be helpful and if could result in stopping these suits.