Update: Court Allows Energy Drink Maker’s Defensive Lawsuit Vs. San Francisco to Advance

GoldenGateIn a post last June, FDA And Caffeine: Selective Regulation By Unsubtle Threat, we mentioned San Francisco Attorney Dennis Herrera’s suit against energy-drink maker Monster Beverage Corp. for allegedly marketing to children. This suit was in fact filed after Monster had already filed its own declaratory judgment action against Attorney Herrara on April 18. In it, Monster urged the District Court for the Central District of California to declare Herrara’s pre-suit actions, which included letters to Monster and FDA, in violation of the First Amendment and preempted by federal law.

On August 22, Judge Virginia Phillips rejected Herrara’s effort to dismiss Monster’s these claims. She found that Monster’s First Amendment claims regarding Herrara’s labeling demands were viable. She found that the warnings Herrara’s letter referenced were in addition to what FDA already requires, and would thus be preempted. She then ruled that the prudential doctrine of primary jurisdiction would also bar the warnings Herarra sought.

This past summer, Monster successfully removed Attorney Herrara’s May 6 lawsuit against the company to the Northern District of California. Monster is currently petitioning that court to transfer the suit to Judge Phillips’ chambers in the Central District, arguing that the claims and defenses in the Monster v. Herrara case are substantially similar to those in Herrera v. Monster.

Proponents of paternalism in and outside of government have seemingly chosen energy drinks as their poster child/whipping boy for targeting (non-coffee related) foods and beverages with caffeine. The need for regulatory action is debatable, but as we argued in June, an on-the-record process at FDA is by far preferable to bureaucratic sabre rattling. And it certainly is preferable to a City Attorney’s regulation by letter and lawsuit.

Third Circuit Reaffirms “Rigorous Analysis” for Ascertaining Class Members under Rule 23

Cruz-Alvarez_FFeatured Regular Expert Column

Frank Cruz-Alvarez, Shook, Hardy & Bacon, L.L.P. (co-authored with Talia Zucker, Shook, Hardy & Bacon, L.L.P.)

On August 21, 2013, the U.S. Court of Appeals for the Third Circuit, relying on its decision in Marcus v. BMW of North America, Inc., 687 F.3d 583 (3d Cir. 2012), once again vacated a lower court’s decision to certify a class in a products liability action.  Carrera v. Bayer Corp., et al., No. 12-2621 (3d Cir. Aug. 21, 2013).  In a significant victory for the defense, the Third Circuit reversed class certification because Plaintiff Carrera failed to demonstrate that the class members were ascertainable – a prerequisite to class certification under Federal Rule of Civil Procedure 23.

Plaintiff Carrera commenced this class action against Bayer Corporation and Bayer Healthcare, LLC (“Bayer”) alleging that Bayer falsely and deceptively advertised its product One-A-Day WeightSmart, by claiming that it enhanced metabolism.  Id. at 4.  Bayer opposed certification largely because without a list of purchasers or documentary proof of purchase, the class could not be ascertained.  Id.  The lower court certified the class on Plaintiff’s proposal that ascertainability could be achieved through (1) retailer records and sales made with store loyalty rewards cards; and (2) affidavits of class members attesting they purchased the product.  Id. at 4-5.  Continue reading “Third Circuit Reaffirms “Rigorous Analysis” for Ascertaining Class Members under Rule 23″