Yvonne M. McKenzie, a partner with Pepper Hamilton and a member of the Health Effects Litigation Practice Group and the Food and Beverage Industry Group, was quoted in the December 20, 2016 Forbes article, "Why Are Consumers Unhappy with Their Food and Drink Filing Class Action Lawsuits?"
Yvonne McKenzie, a partner in the health effects and food and beverage practice groups at Pepper Hamilton LLP’s Philadelphia office, agreed there’s been a definite shift in the last few years.
“Drug and medical device companies are still getting hit, but food and beverage companies are becoming a real target for the plaintiffs bar, especially in the last year or two,” she told Legal Newsline.
And there are a couple of reasons why, said McKenzie, who counsels and defends companies with products regulated by the U.S. Food and Drug Administration.
First, consider the earning potential of food and beverage companies.
“The reality is, most of them have pretty deep pockets,” she said. “They make a lot of money. So it’s not unrealistic that they would be a target of litigation. It was bound to happen.”
Now, add in the many gray areas of federal regulation.
“The FDA hasn’t really regulated certain issues,” McKenzie said.
The definition of “natural” is a good example, she pointed out.
“There is so much litigation involving that term,” McKenzie said. “It’s something that’s confusing to consumers.
“But because you don’t have any regulation, no definition, you have the plaintiffs bar and consumer advocacy groups stepping into that role.”
McKenzie also contends that many judges are reluctant to can these cases -- even if they seem, on their face, frivolous to most others.
“Courts, I think, by in large, are somewhat reticent to get rid of these cases and grant that motion to dismiss early on,” McKenzie said. “It then whets plaintiffs attorneys’ appetite for more litigation.
“They think, well, if I can get past that motion to dismiss and I can get to the discovery phase, then I have leverage and I’m more likely to get paid at the end of the day.”