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A good read on an important topic: my Public Policy Group colleagues Chris Appel and Mark Behrens recently published an article in the latest ABA TIPS section magazine, The Brief, titled “Florida Supreme Court Leads on Apex Doctrine.” Vol. 51, No.2 (Winter 2022), The article discusses a recent amendment to the Florida Rules of…

Readers may not have seen that former U.S. District Judge Jack B. Weinstein passed away this week at the age of 99.

He sat on the Eastern District of New York bench from 1967 to 2020, having been nominated to the bench by President Lyndon B. Johnson. He presided over a number of landmark and…

As Sergeant Joe Friday instructed, just the facts, as Shook was involved.  Those interested in the preemption doctrine will want to read the opinion by Judge Saylor in In Re Zofran, granting summary judgment for defendant and applying the first prong of Wyeth as clarified by Merck v. Albrecht.

In re Zofran (Ondansetron)

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A Minnesota federal court has dismissed a proposed class action alleging household sealants turn yellow despite being advertised as “crystal clear.” Ehlis v. DAP Prod., Inc., No. 20-CV-1872 (PJS/ECW), 2021 WL 83269, at *1 (D. Minn. Jan. 11, 2021).

This putative nationwide class brought a host of fraud and warranty claims against DAP,…

The Florida Supreme Court recently issued a decision in which it adopted the summary judgment standard applicable in the federal courts (and a majority of states). Wilsonart, LLC v. Lopez, No. SC19-1336, 2020 WL 7778226 (Fla. Dec. 31, 2020).

This case involves a fatal rear-end car crash. But on appeal the legal issue became:

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Let’s start the New Year off right.  It’s not often we find ourselves agreeing with the Ninth Circuit, especially in the class action realm.  But the Ninth Circuit recently upheld the denial of class certification to a group of dog owners alleging a pet food maker misled buyers about the alleged presence of heavy metals in its food products. See Reitman v. Champion Petfoods USA, Inc., 830 F. App’x 880 (9th Cir. 2020).

Twelve named plaintiffs purported to represent 12 state-specific classes. They alleged that defendant misrepresented the quality and content of the dog food in its label.  In earlier proceedings, the proposed class was narrowed to California residents who purchased the dog food since 2014. The plaintiffs alleged that defendants failed disclose that the dog foods contain levels of arsenic, mercury, lead, cadmium and/or BPA, which are known to pose health risks to humans and animals, including dogs. Plaintiffs also alleged defendants were knowingly, recklessly, and/or negligently selling certain of the contaminated foods containing pentobarbital.  This allegedly rendered false any statement that the ingredients are biologically appropriate. Finally, defendants also allegedly misled consumers by marketing that their dog food is made from fresh and regional ingredients and is never outsourced. Plaintiffs asserted state-law claims on behalf of the class: (1) violations of California’s Consumer Legal Remedies Act (“CLRA”),  (2) violations of California False Advertising Law (“FAL”),  (3) violations of the Unfair Competition Law (“UCL”), (4) breach of express warranty; (5) breach of implied warranty of merchantability; (6) fraudulent misrepresentation; (7) fraud by omission; (8) negligent misrepresentation; and (9) unjust enrichment.

The district court found that common questions of law or fact did not predominate, finding that plaintiffs were not entitled to a presumption of reliance because plaintiffs cannot show that members of the class were exposed to the same misrepresentations. Even if there was a common general “message” on the products, numerous issues requiring individualized attention would predominate over any common questions. Even the specific phrases at issue required context that differs from bag to bag. Reitman v. Champion Petfoods USA, Inc., No. CV181736DOCJPRX, 2019 WL 7169792, at *1–2 (C.D. Cal. Oct. 30, 2019).

Moreover, the variations went to the very heart of plaintiffs’ claims: Whether a reasonable person would be deceived by the message. That question will necessarily require an individualized inquiry into the specific formula at issue i each brand extension because each formula is unique and has different representations on the packaging that give context to the overall message. Here, the misrepresentations at issue were subject to variations depending on the formula purchased by the proposed class member; every package differed and the changes would require the court to determine what combinations of labels were visible before determining whether that combination is deceiving to a reasonable consumer. The district court recognized that every package also differs in providing additional statements that give context to the overall theme such that an individualized determination must be made bag by bag to determine whether a reasonable customer would be deceived. Therefore, plaintiffs did not meet Rules 23(b)(3)’s predominance requirements as to their UCL, FAL, and CLRA claims.
The Ninth Circuit

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Continue Reading Ninth Circuit Affirms Denial of Class Claims in Pet Food Case

The American Tort Reform Foundation (ATRF) named nine “Judicial Hellholes” in its new annual report intended to shine a light on lawsuit abuse and its effects. See https://www.judicialhellholes.org/reports/2020-2021-executive-summary

ATRF explains that lawsuit abuse harms average, hard-working Americans by clogging our court system with meritless and frivolous cases; dollars spent fighting lawsuits are dollars taken away…

In a unanimous, published decision, a three-judge panel of the Ninth Circuit affirmed the dismissal of a a putative class action brought by a plaintiff-consumer who alleged claims arising when Diamond Foods allegedly included partially hydrogenated oils as an ingredient in Pop Secret popcorn. See McGee v. S-L Snacks Nat’l, 982 F.3d 700 (9th Cir. Dec. 5, 2020).

In sum, the panel affirmed the district court’s dismissal for lack of constitutional Article III standing as the plaintiff did not plausibly allege that, as a result of her purchase and consumption of Pop Secret, she suffered economic or immediate physical injury, or that she was placed at substantial risk of adverse consequences. Concerning plaintiff’s alleged economic injury, the panel held that plaintiff had not alleged that she was denied the benefit of her bargain, particularly given the labeling disclosure that the product contained artificial trans fat.

The panel also held that plaintiff failed to allege an economic injury based on an overpayment theory.
Plaintiff did not allege that Pop Secret contained a hidden defect, or that Pop Secret was worth objectively less than what she paid for it. Concerning plaintiff’s alleged present physical injury, the panel held that plaintiff had not plausibly alleged that she suffered physical injuries due to her consumption of Pop Secret. Concerning plaintiff’s alleged future physical injury, the panel held that plaintiff had not plausibly alleged that her consumption of Pop Secret substantially increased her risk of disease.

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Continue Reading Everyone Knows Popcorn is (Trans-) Fattening