POM Wonderful can be toxic in the courtroom
The jury may be out on whether POM Wonderful helps prevent heart disease, prostate cancer and erectile dysfunction, but the antioxidant-rich drink is increasingly becoming hazardous to its attorneys.
The latest courtroom crossfire to hit the pomegranate juice company is Washington D.C. Superior Court Judge Judith Bartnoff's demand that POM and its attorney, Barry Coburn, explain on Oct. 22 why they should not be sanctioned for allegedly violating federal laws regarding disclosures to judges.
The U.S. Federal Trade Commission recently issued a complaint against POM Wonderful — owned by Aspen residents Lynda and Stewart Resnick — accusing the company of making "false and unsubstantiated claims" in its assertions about the health benefits its products provide. Lynda Resnick, who serves on the executive board of the Aspen Institute and chairs its development committee, recently fired back in the press, calling the FTC regulator who filed the complaint “a zealot."
Resnick told the Wall Street Journal last week that she and her husband, who also own Fiji Water, will stand up and fight for its company's First Amendment rights. She said that Stewart hates “bullies” and told the Wall Street Journal she thinks the complaint-filing FTC official “was bitten by one as a child.”
After the FTC complaint was filed, POM for the first time launched a TV ad campaign. The ads feature a sexy “Eve” wearing nothing but an enormous snake and says that scholars actually believe it was a pomegranate, not an apple, that seduced Adam in the Garden of Eden. The spot makes no mention of prostate cancer or heart disease, but it strongly hints that the juice is an aphrodisiac.
But the TV ad isn't what has Judge Bartnoff standing at attention. She is presiding over another POM court case in which the juice maker is getting sued by a law firm, Hogan Lovells, for $666,000 in fees that POM allegedly owes to lawyers who represented the company during the FTC's investigation.
In that case, the National Law Journal obtained court records in July that revealed the FTC investigation. But POM's attorney, Coburn, argued the probe was protected by attorney-client privileges, calling it "highly confidential and privileged." Coburn's motion convinced Judge Bartnoff to issue a temporary restraining order barring the law journal from disclosing the FTC's investigation of POM. But the temporary restraining order was ultimately removed when it was revealed POM itself had actually already publicly disclosed the FTC probe in a different lawsuit in California.
That revelation didn't please the court.
So now POM's lawyer has retained a lawyer to answer in the case of POM's ex-lawyers.
Law.com reports that “in a statement, Coburn's lawyer, Mark Rochon, a white-collar defense partner at Miller & Chevalier, said, 'Once this was brought to Barry's attention, he notified the Court and that is what prompted the hearing. I have known Barry for over 20 years and I am 100 percent sure that his representations to the Court were what he reasonably believed to be true.' Randell Ogg, a Washington-based solo practitioner representing Hogan in its suit against POM, declined to comment on Bartnoff's order. Hogan's general counsel George "Sandy" Mayo also declined to comment.”
Meanwhile, columnists and editorial boards from far and wide are weighing in on POM Wonderful's merits — many of them slamming it as this century's quack nostrum made for the gullible masses. And it's hard not to find a column or article on POM Wonderful that doesn't mention the purported elixir's usual price of $4 a bottle.
There's no disputing POM is natural, full of antioxidants and better for you than a lot of other beverages out there. Its taste gets mixed reviews. I drink it every now and then (read: on sale) and like it.
But it may be toxic in the courtroom.
The complaint from the FTC was precipitated by POM's lawsuit against the federal agency alleging federal laws on deceptive advertising are violating the company's rights to free speech.
Law.com reports that in just the last two years, POM has also filed at least seven lawsuits against beverage juggernauts like Welch Foods Inc., Tropicana Products Inc., Ocean Spray Cranberries Inc. and Coca-Cola Co. In 2003, the Resnicks also made headlines when, as owners of the Franklin Mint memorabilia firm, they became entangled in a bitter legal battle with Diana, Princess of Wales Memorial Fund over the princess’s name and image.
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