NEC Formula Lawsuit Attorney Sanctions

Lawyers are now jumping on NEC lawsuits that alleged baby formulas made from cow milk, such as Enfamil and Similac, pose a danger to premature infants because they greatly increase the risk of a dangerous infection called necrotizing enterocolitis (NEC).  Our attorneys are going after these potential lawsuits as well because we think they might produce large settlements and verdicts.

Over the last 12 months, numerous product liability lawsuits have been filed against the manufacturer of Similac (Abbott Laboratories, Inc.) and the maker of Enfamil (Mead Johnson Nutrition). These NEC formula lawsuits accuse the defendants of deliberately failing to warn about the risk of NEC.

Mass tort historians, if such a thing exists, will tell you that first cases filed in an eventually successful mass tort end in disaster.  One of the first infant formula NEC lawsuits was Ferry v. Mead Johnson & Co., et al. (3:20-cv-00099) which was filed in Connecticut state court and removed to the U.S. District Court for Connecticut because of diversity jurisdiction.

This case did not go well for the plaintiff.  After a year of litigation marked by motions to dismiss and numerous amended complaints, the Ferry case was voluntarily dismissed.

Motion for Sanctions After Dismissal of NEC Lawsuit

Okay, the case is over. This happens.

After a dismissal like this one, the defense lawyers send in their $500 an hour plus bills and call it a day.  The defense lawyers in this case instead decided to spike the football and filed a motion for sanctions against the plaintiff’s lawyers.

In this post, we will look at what prompted Abbott’s attorneys to file this motion for sanctions. The motion and factual background leading up to it raises very interesting issues for mass tort plaintiffs and their attorneys.

I’m reflexively oppositional to all motions for sanctions, particularly those like this that come off so sanctimoniously.  And, my goodness, the faux concern about taking advantage of grieving parents.  I was a lawyer for drug and medical device companies.  Let’s say concern about grieving parents in wrongful death lawsuits was not a huge priority for defense lawyers.

Setting aside the messenger, the issues raised in the motion. They also offer insight on how the sausage is made for plaintiffs’ lawyers seeking mass torts clients in cases like the NEC formula litigation.

Motion for Sanctions Against Plaintiff’s Lawyer

The motion for sanctions against the plaintiff’s counsel was filed by Abbott Laboratories and its lead defense attorney, Stephen V. D’Amore of Winston & Strawn, LLC in Chicago. The motion accuses the plaintiff’s counsel, Connecticut lawyer Stephen M. Reck, of abusing the judicial process and violating various rules of professional conduct for lawyers.

Specifically, the motion cites three instances of sanctionable conduct on the part of the plaintiff’s lawyers:

  • Plaintiff’s counsel published improper and misleading legal advertising on Facebook in an effort to generate infant formula lawsuits.
  • The estate administrator who filed the case on behalf of the injured child was a personal friend who did not act in the best interests of the child.
  • Plaintiff’s counsel pursued a vexatious and improper litigation

The other two arguments are interesting in a rubber-necking kind of way.  Especially the second argument because the defense lawyers attack him for picking his buddy of 30 years for this job of estate administrator.  But they a very case-specific and don’t have the same wider implications as the advertising issue.  So let’s focus primarily on the claim of improper and sanctionable legal advertising on Facebook by the lawyers for the plaintiff.

Plaintiff Counsel’s Facebook Ads

Abbott’s motion for sanctions takes aim at plaintiff counsel’s social media advertising on Facebook aimed at soliciting parents of premature babies with NEC to pursue infant formula lawsuits. The Facebook ads in question contained pictures of premature babies in the hospital with the following text:

If your premie passed away or suffered serious harm after developing Necrotizing Enterocolitis (NEC), you are entitled to financial compensation directly from the manufacturer.

Time to get justice is limited – click now to claim the compensation you are rightfully owed . . .

The ads did not identify the plaintiff’s counsel as the source of the solicitation and the link on the ad took users to a website that prompted them to fill out a short questionnaire form. Only after the form is completed and submitted do users get an automated response message identifying the plaintiff’s counsel as the source:

Your form has been submitted and you will soon receive a call or text from Attorney Stephen M. Reck or one of his associates. …

The website is not owned or published by Attorney Reck or his firm. Rather, the website is owned by Internet Marketing Solutions, a third-party company that sells leads to plaintiff lawyers. Abbott’s motion identified fifteen infant NEC lawsuits filed by Mr. Reck.

Did the Facebook Ads Violate Ethical Rules on Lawyer Advertising?

In requesting sanctions, Abbott argued that Mr. Reck’s Facebook ads were misleading and in violation of the lawyer advertising rules in the Connecticut Rules of Professional Conduct. Abbott cited 3 ways in which the Facebook ads ran afoul of the applicable rules.

(1) Misleading Entitlement Language

First, Abbott argued that the wording of Mr. Reck’s ad was misleading because it led prospective clients to believe they were “entitled to compensation without regard to the particular circumstances of the matter.”

Abbott cited to the following statements in the Facebook ad “you are entitled to compensation directly from the manufacturer” and “click now to claim the compensation you are rightfully entitled owed.”

Abbott argued that this language was false or misleading and in violation of the rules and cited a California case sanctioning an attorney for misleadingly suggesting that “cash settlements were available.”

(2) Failure to Identify the Attorney in the Ad

Next, Abbott quite correctly points out that the Facebook ad did not identify Mr. Reck or any other lawyer as the attorney associated with or responsible for the legal advertisement on Facebook.

Only the lawsuit owned by the third-party marketing company is identified. This was in fact a violation of Connecticut’s rule on lawyer advertising, Conn. R. Pro. Conduct 7.2(e) (which is the same as the rule in all other states on this particular point). This rule requires the name and contact information of a lawyer to be included in any legal ad.

Now is this on Mr. Reck? I guess it probably is.  This is an inevitable byproduct of using third-party marketing companies to get personal injury leads.   As I talk about below, this way the sausage gets made for lawyers getting mass tort cases like the NEC formula lawsuits is not ideal.

(3) Failure to Label as “Advertising Material”

Finally, Abbott attacks the Facebook ad for not being clearly and prominently labeled as “advertising material” in red ink, as required by Conn. R. Pro. Conduct 7.2(e). The Facebook ads in question did not contain the “red ink” label required under the rules. Abbott’s attorneys also pointed out the after they notified Mr. Reck of apparent rule violations in the ads, he stopped using them.

Response from Plaintiff’s Counsel

Mr. Reck’s response in opposition to Abbott’s motion for sanctions was predictably indignant. Mr. Reck characterizes the motion as “factually unsupported fiction” and blasts Abbott’s attorneys for making false and offensive allegations of misconduct.

As to improper advertising, Mr. Reck admits that the ad may have been non-compliant, but states that the plaintiff in the case did not come to him through any advertising at all. Therefore, Reck argues that Abbott cannot show that it was harmed by the baby formula lawsuit Facebook ad at issue in its motion. (This might not entirely be the point of a motion for sanctions of this nature.)

Mr. Reck then goes on the offensive and attacks Abbott for attempting to censor and intimidate him to deter future infant formula cases, claiming that is the real agenda:

Abbott is keenly aware that if there is no advertising, parents would never learn that their premature infant’s disease or death was linked to baby formula. Parents are never told of the link of risk or NEC and death. . . . Abbott promotes a culture of silence to protect the profits of their billion-dollar money making product “Similac”.

Reck has a high horse at tall as Abbott’s.  He goes on about Abbott’s motion has a “chilling effect” on litigation and “violates the people’s right to petition the government for redress of grievances under the First Amendment of the Constitution.”  Geez.  So much drama from both sides.

Court Takes No Action on Abbott’s Motion

The arguments and accusations in this post dismissal battle between Mr. Reck and counsel for Abbott apparently fell on disinterested judicial ears because the court never ruled on Abbott’s motion. Abbott’s motion for sanctions was filed in April 2021 and no ruling has ever been entered. It seems unlikely at this point that the court will ever rule on Abbott’s request for sanctions.

Buying Client Leads from Internet Marketing Firms

The NEC lawsuit Facebook advertisement that Abbott’s lawyers found so offensive was from a third-party internet marketing company. Our law firm doesn’t use them. But we are very familiar with how these legal marketing companies operate, if for no other reason than them sending me incessant spam emails.

These companies primarily focus on generating prospective client leads in big, nationwide mass tort product liability cases.  They utilize teams of writers and content developers to create their own internet and social media marketing campaigns.

Legal marketing companies like IMS generate client leads by publishing websites (such as the publiclawsuits dot com) and through aggressive social media advertising efforts on Facebook and other places.  Their goal is to generate potential new client leads and then sell those leads to personal injury lawyers.

They charge a set fee either per potential new client lead or per signed retainer. The flat fee per lead is usually much lower (e.g., $100 per lead) because these companies do minimal screening so only a small percentage of leads convert into actual cases. If the company charges per signed retainer the rate is generally much higher.

Is it a good system to have third parties getting cases and then selling the leads to lawyers?  No. But you also want to give good lawyers who are not Internet savvy the ability to be considered for handling cases for which they may be qualified.  So I don’t like the system but I don’t know that I can propose a better one.

More Thoughts and Comments

Abbott’s motion for sanctions comes across to me as disingenuous.  It has a “we come as officers of the court” vibe. I mean, if that was the purpose, did they bill the file for the motion?  Why should Abbott pay for them to make a citizen’s arrest?

And the Captain Renault shock about legal advertising. Join me in 2021. Plaintiffs’ attorneys are allowed to advertise for clients. Is this a bad idea?   It is not an indefensible position we should be allowed to market as we do.  But this issue has already been decided almost 50 years ago.  So relitigating the issue is pointless.

Facebook Ad Was Not Compliant

All that being said, Abbott is correct that the Facebook ad at issue may not have complied with the rules on lawyer advertising.

Specifically, the failure to identify Mr. Reck as the attorney responsible for the ad and the failure to label the content as “Advertising Material” seem to be obvious (although maybe harmless) violations of the applicable rules.

The “You Will Get Compensation” Language

Abbott’s argument that the language of the Facebook ad was false and misleading is much more debatable.  Abbott claims that the language in the ad saying “. . . you are entitled to financial compensation directly from the manufacturer . . .” is in violation of the rules because leads people who read it to believe that they are entitled to compensation without regard to circumstances.

I agree that the ad should have said you “may” be entitled to compensation. That is over-the-top and I hustled back to make sure we had nothing of the sort. (We didn’t.)

But just because I think it is bad form does not mean it is sanctionable.  Did a single person reading that think they were just going to “click here” and the manufacturer would send them money?  I don’t think the wording of the ad would actually lead anyone to the false assumption that there were going to get money if they clicked on the link.

But, I don’t know, maybe that unfairly entices people to click even if they intellectually know the call line is not to be taken literally.  I know I don’t like it. But, again, that does not make it sanctionable.

(This post is over 210o words. I set out to write a 500 word post!)