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
New Article on Product Liability Related Trends
For those of our readers with access to the Law360 universe, my partner Hildy Sastre and I just published an article on Important Product Liability Practice Trends To Watch In 2022.
In honor of Punxsutawney Phil we venture predictions for the year ahead. The last year has seen several important legal developments relevant to…
Judge Weinstein Passes at 99
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…
Summary Judgment Granted in Zofran MDL
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.
Master Pleadings in MDLs
Ever since the In Re NuvaRing Prods. Liab. Litig. MDL, more than a decade ago, we have had concerns about the use of master pleadings in MDLs. On one hand, the requirement to file a master complaint, and answer, seems to offer some efficiency gains and ease the administrative burden on transferee courts. On the…
Proposed Class Action on Sealant Products Fails to State a Claim
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,…
Florida to Update Summary Judgment Standard
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).
Ninth Circuit Affirms Denial of Class Claims in Pet Food Case
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).
Continue Reading Ninth Circuit Affirms Denial of Class Claims in Pet Food Case
ATRF Releases Its Annual List
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…
Everyone Knows Popcorn is (Trans-) Fattening
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.
Continue Reading Everyone Knows Popcorn is (Trans-) Fattening