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 (U.S. Dist. Ct., 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.”