Attacking The Attacker

Our client is a high profile food company. Before we ever met them, they put a nutrition claim on their label that seemed unsupportable and provided the basis for a good class action. Our adversaries were a quality firm who saw the case as an easy win with a big payoff.

Like most improper food label claims, the label and the product had many positive features, but the label's technical flaw provided the basis for a class action. So, we needed to convince the plaintiff's counsel (these cases are always attorney-driven) that things weren't as simple as they initially appeared.

First, we started by examining the product to confirm that was indeed highly nutritious and very healthy and that the inadvertent overstatement of one attribute was minor in the grand scheme of things. Also, the overstatement was up for scientific debate if you knew how to frame it. We would have no problem finding an expert who would testify that the product conveyed some great health benefits and that the science was not settled on the alleged overstatement. So, now we had the science under control.

We then decided to look into the client's social media account. We were surprised to find several e-mails from anorexic women who said the product had saved their lives because it tasted good, was highly nutritious, highly digestible, and it was the only thing they "could keep down." One of them had sent the client an "after," picture showing how her health had improved after she started eating the product. Truth be told, when I first saw the photo, I thought it was a "before" picture -- -- she looked emaciated to me; it must have been much worse before. This made her story that much better. Her life had obviously been saved.

So now, we had our tools. I told opposing counsel that their PhD expert witness saying the product wasn't as nutritious as claimed would be countered with our PhD expert who would say it was plenty nutritious and that the science wasn't settled on their claim. Our next witness would be one of the anorexic women whose life the product had saved. We'd line up other witnesses who bought the product, used it as part of a program to improve their health and who didn't care if there was an alleged overstatement on the label.

Plaintiff's counsel realized their case wasn't as simple as it first seemed and settled for a bargain price. The client was very happy and we still represent them to this day.


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