WINSTON-SALEM, N.C. (WGHP) — A false advertising lawsuit against the company behind North Carolina-made Texas Pete hot sauce was dismissed after the dispute escalated to claims of an illegal capper scheme and a “disturbing” investigation into those claims.
On Sept. 12, 2022, Phillip White, 28, of California, filed a class action lawsuit claiming that T.W. Garner Food Co. was deceptively marketing Texas Pete as a Texan product when it’s actually made in Winston-Salem, North Carolina. White’s complaint, filed on behalf of all people in the U.S. who have purchased Texas Pete, asked the court to force Texas Pete to change its name and branding and to give money to past customers.
T.W. Garner Food Co. filed a motion to dismiss the lawsuit on Nov. 10, but a U.S. district court judge denied the motion to dismiss on July 31.
The tables turned on Sept. 28, 2023, however, when White asked the court to dismiss his case. The court dismissed the lawsuit in its entirety on Oct. 4.
White’s case for dismissal
In a declaration accompanying his motion to dismiss, White accused Garner Foods and the company’s attorneys of “unwarranted harassment of my friends and their family.” He said that third-party subpoenas were served on two men he knows and a private investigator allegedly followed the attorney who helped him launch the lawsuit.
“I do not want my friends or their family to be harassed simply because I am a Plaintiff in this case,” White said. “I am also aware that Defendant is making defamatory statements about me and my character in public documents filed in this case with no basis and I wish for that stop.”
The alleged “defamatory statements” refer to Garner Foods’ claim that Clarkson Law Firm illegally solicited him for this lawsuit in a potential “capper” scheme, the same accusation lodged against White during his suit against Kroger.
As Grewal Law PLLC explains, lawyers cannot legally seek out and solicit potential clients. Law firms have tried to get around this rule by using “runners” or “cappers,” people who are not lawyers, to contact potential clients and push them toward certain attorneys.
“Any suggestion that I have manufactured this lawsuit, that I have knowingly bought the falsely advertised ‘Texas Pete’ hotsauce for purposes of pursuing this case, or that I have lied about buying the ‘Texas Pete’ hotsauce is patently false and offensive,” White said.
The Kroger case
In a lawsuit filed on Oct. 12, 2021, White accused The Kroger Company and Fruit Of The Earth of “greenwashing” certain Kroger sunscreen products by dishonestly using the “Reef Friendly” label. He claimed the products contain chemicals that “can harm reefs, including coral reefs and the marine life that inhabits and depends on them,” a claim which is backed up by the National Park Service.
Amid the legal conflict, Kroger subpoenaed White, among others, and began to uncover what Kroger portrayed as evidence that “strongly suggested, if not confirmed, that Mr. White’s counsel procured him through a classic unlawful ‘capper’ arrangement.”
White and Clarkson Law Firm, on April 21, 2023, filed to have the case dismissed, igniting fierce backlash from Kroger’s legal team. Kroger asked the court to issue an order forcing White to pay more than $225,000 to cover Kroger’s legal fees and allowing the company to dig deeper into the alleged “capper” scheme.
The court declined to force White to cover Kroger’s legal fees and did not allow Kroger to continue investigating the allegations. The case was dismissed permanently effective July 7, 2023.
What Kroger alleged
Seeking answers about White’s lawsuits and his relationship with Clarkson Law Firm, Kroger called the plaintiff in to provide a deposition on March 7.
The defendant’s legal team asked repeatedly about White’s friendship with his college roommate Danny O’Brien. Danny O’Brien is now married to Lauren Anderson, a lawyer at Clarkson Law Firm. These connections, the defendant alleged, could provide evidence that Clarkson Law Firm recruited White for the Kroger suit, among others.
In the deposition, an attorney asked White how he came “to be involved with Clarkson Law Firm.”
“When I went to SMU, I met a guy named Danny, and he works with one of the — or he is the husband of one of the attorneys at Clarkson Law Firm,” White said.
White refers to Danny O’Brien as “a casual friend.” He says they met while attending Southern Methodist University in Texas. White attended Danny O’Brien and Anderson’s wedding in 2022, and he has traveled with Danny O’Brien in the past. He said he keeps “fairly regular contact” with Danny O’Brien.
Kroger’s attorneys claimed in its response to White’s motion to dismiss, “Mr. White admitted, in deposition, that he was recruited to serve as a plaintiff for The Clarkson Firm by his ‘best friend,’ Danny O’Brien, who now was married to Lauren Anderson, a lawyer at Clarkson.” White’s legal team countered, arguing that Kroger’s portrayal of White’s comments “blatantly misrepresents” what he actually said.
Kroger’s legal team pushed forward, serving third-party deposition subpoenas on Danny O’Brien and his father, Christopher O’Brien. The two were called to testify and present documents on “communications between Mr. White, the O’Briens, Ms. Anderson, and Clarkson, as well as assurances, promises, and remuneration the O’Briens received from one another, from Clarkson, or that they gave to Mr. White in connection with this lawsuit.”
Danny O’Brien was set to testify, per a judge’s order, on April 24, but that testimony never happened. Three days prior, on April 21, the Clarkson firm filed their motion to dismiss the case. Kroger believes that Danny O’Brien’s testimony would have confirmed the illegal capper arrangement.
“Here, Mr. White and his counsel are trying to dismiss this case not for legitimate
reasons, but to dodge scrutiny of the obvious unlawful capper arrangement (along with the
potential civil, criminal, and disciplinary repercussions that entails)—and do so after Kroger has
spent thousands of dollars in fees, investigator costs, and process servers chasing Mr. White, Mr.
Danny O’Brien, and their capper gang to prevent further abuse of the judicial process,” Kroger’s team said.
In White and Clarkson’s motion to dismiss, the team says that they filed to dismiss the suit because they had discovered that the amount of money that the class could win wasn’t enough to meet the $5 million requirement of the Class Action Fairness Act of 2005. White also said he wanted to stop The Kroger Company’s alleged “persistent and escalating harassment and intimidation” through “use of subpoenas to harass” him, his friends, his counsel and his counsel’s family members. White adamantly denied that any illegal capper scheme took place.
“I feel that I, my friend Daniel O’Brien, his family, and my roommates are being unfairly harassed by the subpoenas,” White said. “That is because they have absolutely no involvement in my purchase or use of the Kroger ‘Reef Friendly’ sunscreen, my decision to file this lawsuit, and my participation in this lawsuit. We have not engaged in some sort of illegal scheme to manufacture fake lawsuits, or illegally recruit clients for any attorneys in exchange for money. The harassment has only gotten worse since I first learned that Daniel and Christopher O’Brien were subpoenaed. While I strongly believe in this case, I do not think it is fair to subject others to this sort of harassment.”
Capper allegations revived
In a joint report filed on Sept. 21, Garner Foods resurfaced the allegations that had previously faded away with the dismissal of the Kroger suit.
“Evidence will show that Plaintiff was recruited by his counsel as a result of an illegal capper arrangement in violation of the California Business and Professions Code,” Garner Foods’ legal team wrote, citing the Kroger case.
The company said two third-party witnesses, Daniel O’Brien and his father Christopher O’Brien, were served deposition and document subpoenas on Sept. 15 “for purposes of discovering evidence of Plaintiff’s participating in this case being the result of an illegal capper arrangement.”
The Garner Foods’ legal team says White’s legal team has refused to allow the witnesses to submit to the subpoenas and submitted objections on their behalf. It said White’s team had done this “despite having been disqualified to serve as counsel for the third parties in an order dated April 13, 2023, and issued by the United States District Court for the Northern District of California” in the Kroger case. Garner Foods’ attorneys said they intended to file a motion to force the two witnesses to comply.
White’s legal team responded, calling the allegations “unfounded” and “baseless.” They claim Garner Foods, “in an effort to mislead the Court,” “purposely” left out the court did not allow Kroger to continue to investigate the alleged capper scheme and that White and his legal team voluntarily dismissed the case “to stop the defendant in that case’s repeated, continued harassment of junior associates at our firm, including their extended families at all hours of the night, to protect their health and well-being.”
The plaintiff claims Garner Foods had “begun the same concerted effort to harass and intimidate” that led White to call for his previous case to be dismissed, “perhaps hoping we would do the same in this case.”
White’s team said that a private investigator, who was allegedly working with Garner Foods, “engaged in a disturbing pattern of behavior,” beginning when Anderson first noticed the investigator “illicitly taking photographs from atop the wall surrounding Clarkson Law Firm’s gated parking lot.”
“When noticed, the investigator hastily retreated, only to reappear later, closely following the associate on her commute home,” White’s team said.
They accuse the investigator of “recklessly tailgating a young female associate along the Pacific Coast Highway to her home in a manner that caused her to feel threatened and unsafe” and claim the investigator went to the associate’s home and knocked on the door “for some time in the middle of the spouse’s important work meeting.”
“These are examples of inappropriate intimidation tactics that far exceed the bounds of decency and acceptable litigation conduct,” White’s team said.
“In light of Defendant’s continued egregious conduct, Plaintiff will file a motion to substitute Plaintiff, to protect Plaintiff, his family and friends, as well as the families of associates at Clarkson Law Firm, and will seek appropriate sanctions against Defendant’s counsel,” White’s legal team said.
White filed to have the case dismissed on Sept. 28. In the filing, White’s attorneys said he made this decision “as a result of Defendant’s persistent and escalating harassment and intimidation based on meritless speculation that Plaintiff was purportedly recruited to bring this case against Defendant by Plaintiff’s counsel ‘as a result of an illegal capper arrangement.'”
White and Garner Foods agreed to have the case dismissed without prejudice, according to an Oct. 3 filing.
“In stipulating to the dismissal, Defendant neither agrees to nor admits to any of the factual allegations or legal arguments expressed in Plaintiff’s motion to dismiss,” the document said. “Each party shall bear his/its own attorneys’ fees and costs.”
The case was dismissed without prejudice on Oct. 4.