Last week we updated you on the latest development in Kane v. Chobani, one of more interesting cases among the hundreds of “mislabeling” class actions that consumers have filed against food and beverage companies. In reporting on Judge Koh’s decision to vacate her early July ruling in the case, we noted that Chobani’s motion to bar one of Kane’s experts from involvement in the suit, and to disqualify her lawyers, had been argued before Judge Koh.
Late last Friday, August 2, Judge Koh ruled on that motion. She barred expert witness Betty Campbell and her employer, EAS Consulting Group, from discussing issues in the Kane action with Kane’s attorneys. That order essentially prohibits EAS and Campbell from working on the 30+ other, similar class actions that Kane’s lawyers have filed in the Northern District of California federal court without first obtaining a waiver from Chobani.
Judge Koh declined Chobani’s request that Kane’s lawyers be disqualified from the case. She reasoned that based on the evidence available to her, neither Campbell nor anyone else from EAS had shared confidential information which Campbell had obtained from conversations with Chobani’s attorneys with Kane’s lawyers.
That ruling did not, however, relieve Kane’s lawyers from a judicial scolding.
“Plaintiffs’ Counsel were on notice that EAS had a conflict with Chobani that would prevent EAS from appearing adverse to Chobani,” Judge Koh wrote. Kane’s lawyers could have made a simple phone call to Chobani’s counsel to confirm the conflict. Instead, the lawyers relied upon representations by EAS’s CEO that no conflict existed. Judge Koh wrote that “counsel cannot rely on non-attorney experts with pecuniary incentives to discharge an attorney’s ethical duties,” and that, “The Court is deeply disappointed that Plaintiffs’ Counsel abdicated their ethical responsibilities to [EAS's CEO].”