Plaintiff in Herr Foods Litigation Seeks Disqualification for Defense Attorney

The plaintiff in a purported class action asserting that Herr Foods Inc. mislabels its packaged snacks as “natural” has filed a motion to disqualify defense counsel, alleging the attorney repeatedly made “extortionate threats” and committed professional misconduct. Whitaker v. Herr Foods, Inc., No. 16-2017 (E.D. Penn., motion filed December 14, 2016). The plaintiff’s motion follows Herr Foods’ motion for summary judgment, which asserted that the plaintiff could not possibly have purchased the products he claimed and that he is “a wholly inadequate lead plaintiff” because of “his faulty memory,” “his lengthy history of felony convictions involving theft and dishonesty and his potential mental health problems.”

The plaintiff’s motion for disqualification alleges the defense attorney told the plaintiff that Herr Foods directed him to file for sanctions and refer the plaintiff to the district attorney’s office for an attempted criminal extortion investigation. “If you would like to talk about an agreement whereby you, your Firm, and your Client agree to withdraw the case with prejudice and further agree to never bring (or to facilitate, participate in, etc.) any type of claim ever again against Herr’s, I can have a discussion with my Client to see whether it would be willing to forego sanctions and referral to the DA,” the email apparently said. The plaintiff argues that this offer amounts to extortion and has asked the court to disqualify the attorney based on his conduct.

Issue 626