Fighting to Win: A General Counsel's Perspective on Retaining Outside Counsel

Although false advertising can never be condoned, many labeling cases often boil down to frivolous claims by plaintiff lawyers challenging products that actually conform to all applicable FDA rules. These are products that present absolutely no health or safety risk to consumers, and are properly labeled and marketed in accordance with existing governing standards and regulations. In most cases, the real ' and barely veiled ' thrust of these class action filings is to secure a quick windfall settlement for plaintiff's counsel. The cost and expense required for a company to validate and substantiate even the most basic, straightforward, and obviously accurate label or marketing claims through civil litigation is nothing short of outrageous.

Moreover, due to the business distraction caused by these cases, the required expenditure of limited and valuable company resources, and the brand risks created by negative consumer perception or public opinion generally derived from such false advertising allegations, these tactics often work. Consumer trust in a brand's promise or a product's positioning is the most valuable asset that any successful company holds. Risking damage at the hands of a litigation process often ill-equipped and poorly designed to substantively determine the validity and accuracy of specific product marketing claims is simply not a chance that many business owners are willing or able to take. Companies have paid tens (if not hundreds) of millions of dollars in recent years to settle what would otherwise be deemed unmeritorious suits.