The Devil Is In The Details

One of the toughest class actions to defend is labeling with the word "Natural," on it when the product contains things like an artificial color, ascorbic acid or synthetic vitamins -- -- things that are undeniably not "natural." That was the problem we were presented by a food company that was well known and very profitable -- -- and plaintiff's counsel was looking for a big payday. We had to find something to give us some leverage.

A class action isn't a class action when the plaintiff files the case. It becomes a class action six months to a year later when the plaintiff makes a motion to the court saying (a) the plaintiff was misled by the label into overpaying for a product, (b) many thousands of persons scattered throughout the country have suffered the same harm, and (c) the plaintiff's attorney should be allowed to represent all of those persons scattered throughout the country by means of a class action. If the judge disagrees with those concepts, he denies the motion and the case is one plaintiff seeking five dollars or less in damages. Since the entire litigation is being financed by the plaintiff's class action attorney, and since he's already spent tens of thousands of dollars by the time the motion is dismissed, the attorney winds up with nothing. That's a pretty powerful deterrent if you can bring it into play.

We studied this case and determined that the plaintiff would not be able to articulate a means of calculating the damages suffered by each of the plaintiffs. If he couldn't do that, he'd have spent a couple of years financing litigation for no return. Faced with this problem, instead of a big payday, the plaintiff's attorney took a token settlement and the case was over. The client was relieved.


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