August 5, 2013 – The Am Law Litigation Daily – Mayer Brown Loses DQ Bid in Yogurt Labeling Case

Mayer Brown Loses DQ Bid in Yogurt Labeling Case

By Max Taves | The Litigation Daily | August 5, 2013

Mayer Brown swung for a TKO against the team of plaintiffs lawyers behind a recent wave of food labeling litigation. But in the end, it lost the food fight.

On Friday U.S. District Judge Lucy Koh in San Jose denied Mayer Brown’s motion to disqualify plaintiffs counsel based on their use of an expert previously consulted by the defendant, yogurt maker Chobani Inc.

In her order, Koh blamed plaintiffs lawyers for not immediately disclosing their intent to hire EAS Consulting Group to work on other food labeling litigation once a possible conflict with Chobani came to light. However, she called disqualification too harsh of an action, citing a lack of evidence that FDA regulatory expert Elizabeth Campbell of EAS had ever disclosed privileged information to plaintiffs’ attorneys.

Koh scolded plaintiffs lawyers for not alerting Chobani as soon as they became aware EAS had a conflict. “Plaintiffs’ counsel’s failure to make this ‘simple phone call’ risked breaching Chobani’s confidences, and could have required plaintiffs’ counsel’s disqualification,” Koh wrote.