Consumer Law

More ABA cowtowing to the defense bar

By Stephen Gardner

Most plaintiff lawyers long ago concluded that the American Bar Association should really be called the "American Defense Bar Association," because of a  bias in favor of white-shoe, tall-building defense lawyers and the evildoers they represent. The ABDA (whoops, I mean, "ABA") tries to demonstrate its balance by creating a few oases within its organization where plaintiff lawyers can perceive themselves to be more at home.

One of these perceived oases (although "ghetto" would be more accurate) has been the Consumer & Personal Rights Litigation Committee.

That perception, at least on my part, came to a halt when I opened the Winter 2007 Newsletter of that Committee, which had arrived over the holiday.

In short, almost the entire issue is a puff promotional piece for defense firm Reed Smith, presented by way of an incorrect statement of the laws and the facts involving matters of which I have significant knowledge.

I was appalled (though sadly, not surprised) to see that (but for a short piece on class action certification standards), the entire issue was devoted to work we've been doing at CSPI.

There was an article by the lawyers from Reed Smith that discussed both our KFC lawsuit and our threatened litigation against Kellogg and Viacom on marketing to kids. And then the Reed Smith lawyers were given another four pages of ?interview? to espouse their own views. (I don't know if they paid for what was really just four pages of trolling for clients, but they should have done.)

Neither the authors nor the editors of the Newsletter contacted me to get CSPI?s views. This was significant because the article is both factually and legally incorrect on several points. To name a few:

• The KFC suit was about trans fat  ?  which is about heart disease and not weight ?  but the authors falsely linked it to obesity litigation.
• The authors failed to mention that CSPI had withdrawn from the KFC lawsuit before the court dismissed the case (because we felt the case had become moot with KFC?s decision to get rid of trans fats).
• It mentions that CSPI ?indicated? that it would not pursue legal action against Kellogg. CSPI did quite a bit more than "indicate" ?  significant press coverage discussed the fact that CSPI negotiated a significant settlement with Kellogg, which then served as a basis for other companies? agreements with the BBB to control kid marketing.
• In its discussion of the Kellogg suit, the article stated that plaintiffs would have to ?establish that because of Viacom?s efforts children are actually consuming less healthy food than they otherwise would. But where is the evidence of that?? Two things are wrong here ? first, Mass law does not require proof of consumption (as the Aspinall case made quite clear) and, second, there is plenty of evidence that kids are in fact consuming less healthy food because they are consuming more junk food.
• In a footnote to the article, the authors say that ?CSPI presents no proof that so-called unhealthy foods are marketing as anything other than snacks and treats.? Any number of problems here ? First, it is not incumbent on CSPI to ?present proof? at the demand letter stage. Presumably, these Reed Smith lawyers understand this basic premise of our legal system. Second, how would they know what CSPI can do, since they did not contact us? Third, CSPI in fact has evidence that marketers market junk food as more than just ?snacks and treats.? Fourth, the lawyers ignore the fact that the ads are directed to kids as young as three ? who simply don?t have the cognitive capacity to understand what?s healthy and what?s not, but who do believe that what Sponge Bob tells them to do is a good thing (and SpongeBob is the prime offender in shilling junk foods on Nickelodeon).

And I?ve just scratched the surface. This is shameful, but not entirely surprising for the ABA. A pity that it is done by one of the few ABA committees that even pretend to be of direct interest to plaintiff lawyers.

As a sidelight, the Newsletter did not disclose any conflicts of interest that the Reed Smith lawyers might have had that could influence their objectivity. Recently, medical journals in this country finally (after pressure largely applied by one of my colleagues at CSPI) agreed to require their authors to disclose when research was paid by members of industry. Maybe the authors of those journal articles would not fudge their results, but it was important that readers know of the potential.

Lawyers ought to behave at least as professionally. Perhaps the ABA authors  assumed that EVERYONE KNOWS THAT REED SMITH LAWYERS ARE LACKEYS FOR BIG BUSINESS WHO WILL SAY WHATEVER GETS THEM THE MOST NEW CLIENTS.

Or perhaps they just forgot to mention this fact, just as they seem to have forgotten to check their facts or contact CSPI.

Full post as published by CL&P Blog on December 26, 2007 (boomark / email).