Using FDA Against Class Action Plaintiffs

A dietary supplement company was being sued in a Federal Court class action for allegedly exaggerating its products' benefits on its labels and website. The company was being defended by a prominent New York law firm that specializes in these matters. The case had gone on for about a year at great cost to the company without any progress being made and with no end in sight. The company's board of directors contacted The Food Lawyers® to examine the case.

We observed that Plaintiffs' strategy was having a trial that was a battle of conflicting experts' opinions, leaving the verdict a multi-million dollar "crapshoot" in the hands of the lay jurors. Companies cannot withstand that kind of risk and settle for millions of dollars after having paid millions to their own attorneys to get the case to that stage. The Food Lawyers® determined that the New York law firm had neglected to tell the client about making a motion to move the key issue in the case out of Federal Court and into the FDA where it would be resolved by a panel of food scientists rather than an unschooled jury. Such a motion provides three distinct benefits. First, The Food Lawyers® can predict what the FDA scientists will conclude, unlike dealing with a jury. Second, The Food Lawyers® are experienced in FDA regulatory procedures while plaintiffs' attorneys were not. Third, if plaintiffs' attorneys felt weakened enough, they might be willing to cut their losses and settle on the cheap.

The Food Lawyers® filed the motion to move the case to the FDA. Rather than oppose the motion, plaintiffs' attorneys agreed to settle the case in exchange for reimbursement of a portion of their attorneys' fees. The case was wrapped up quickly to the client's great satisfaction at a fraction of the cost that had been budgeted for the matter.


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