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I'll See You in the Agency!

By Cary Silverman

A barrage of lawsuits against food and other companies asserting that advertising or labeling of their products is misleading, even as government regulators have not challenged the representations, has led attorneys representing the companies increasingly to raise the “primary jurisdiction” doctrine as a defense. In essence, the doctrine provides that courts should not take jurisdiction of cases where the core issue raised by the plaintiff's claim is subject to the expertise of a federal agency.

This year, manufacturers used the primary jurisdiction doctrine to achieve several significant victories. This article briefly explores the underpinnings of the primary jurisdiction doctrine, highlights its use in product cases in 2012 and 2013, and considers the role primary jurisdiction may play in future consumer class action litigation and beyond.

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