Consultants Disqualified in Yogurt Litigation, Plaintiffs’ Counsel Cautioned

A federal court in California has determined that EAS Consulting Group LLC
and one of its employees, a former acting director in the Food and Drug
Administration’s Office of Food Labeling, must be barred from discussing
issues with plaintiffs’ counsel in litigation against Chobani, Inc. and are
disqualified as experts in the case, finding that the regulatory consulting
company improperly agreed to consult with plaintiffs’ counsel in consumer
fraud litigation against food companies after discussing confidential litigation
strategy and issues with Chobani’s defense counsel. Kane v. Chobani, Inc., No.
12-2425 (N.D. Cal, San Jose Div., order entered August 2, 2013).
Details about the litigation appear in Issue 491 of this Update. So ruling, the
court denied Chobani’s request to disqualify plaintiffs’ counsel unless they
communicate further with EAS about the issues in this putative class action
without a waiver from Chobani.

According to the court, while confidential information about the Chobani
litigation was not actually disclosed to plaintiffs’ counsel—firms with some
three-dozen consumer fraud cases pending against an array of food companies
in the district—it was “deeply disappointed” that plaintiffs’ counsel
abdicated their ethical responsibilities to EAS Chair and CEO Ed Steele, a
non-attorney, by erroneously relying on Steele’s assurances that although EAS
had consulted with defendant’s counsel it would not appear adversely in any
of the cases on a list provided by plaintiffs’ counsel. The court stated, “both
Chobani’s counsel and Plaintiffs’ Counsel’s alleged surprise at EAS’s conduct
only underscores the fact that counsel cannot rely on non-attorney experts
with pecuniary incentives to discharge an attorney’s ethical duties.”