Second Circuit Shuts Down Duplicative Regulation by Litigation of Organic Products

organicA January 9, 2018 WLF Legal Pulse post applauded a federal district court’s textbook application of implied-preemption analysis in dismissing a consumer-protection suit that alleged mislabeling of an organic infant formula. A recent decision of the U.S. Court of Appeals for the Second Circuit in Marentette, et al. v. Abbott Laboratories, Inc. similarly utilized implied preemption to reject a putative class action presenting nearly identical claims involving another brand of organic infant formula. The decision should put an end to plaintiffs’ use of state consumer-protection suits to regulate products bearing the U.S. Department of Agriculture’s (USDA) “Organic” symbol. Continue reading “Second Circuit Shuts Down Duplicative Regulation by Litigation of Organic Products”

Federal Court Offers an Exemplar on Defusing the E-Discovery Litigation Weapon

quickenAny civil litigation target knows that the highest costs of defending a lawsuit arise not from the courtroom or motion work, but from discovery.  Those costs have paradoxically skyrocketed in the digital era.  Though computers made it faster and cheaper to find and disclose documents, the volume of discoverable documents has infinitely increased, inspiring overwhelming production requests that courts must weigh when issuing discovery orders.

As outlined in a WLF Legal Backgrounder, those burgeoning electronic discovery (or e-discovery) demands inspired the U.S. Judicial Conference to amend the Federal Rules of Civil Procedure in 2015.  Among other changes, the amendments altered the scope of discovery under Rule 26 by imposing a stricter proportionality test for e-discovery.  Continue reading “Federal Court Offers an Exemplar on Defusing the E-Discovery Litigation Weapon”

“China Agritech” SCOTUS Case Will Turn on Justices’ Opinions of Class Actions

supreme courtDuring oral arguments this coming Monday in China Agritech, Inc. v. Resh (click here for WLF’s amicus brief) the U.S. Supreme Court ostensibly will be considering a technical issue regarding statutes of limitations: when should the doctrine of “equitable tolling” be applied to extend the deadline for filing a class action lawsuit? But how the justices determine the scope of that judge-made doctrine has little to do with applying well-established equitable doctrines in this area of the law (there aren’t any) and everything to do with how warmly they feel about class litigation as a vehicle for providing effective relief for large numbers of plaintiffs with small claims. The evidence suggests that the Court is far less enamored with class actions than it once was and will use China Agritech to cut back on their use. Continue reading ““China Agritech” SCOTUS Case Will Turn on Justices’ Opinions of Class Actions”

Washington State Officials Usurp Federal Authority with Crusade to Block Export Terminal

Over the past several years, state and local governments have become more aggressive regulators of free-enterprise activity. Some of those states and municipalities have taken action in areas that either federal law or the U.S. Constitution reserve for uniform federal regulation.

For instance, states like Washington and California have either adopted or are pursuing their own “net neutrality” rules after the Federal Communications Commission repealed a 2015 rule. Scores of states, cities, and counties have sued to impose controls on federally approved prescription pain medications that would be different from those required by the Food and Drug Administration. And mayors, county supervisors, and state attorneys general are racing ahead of the federal government with lawsuits aimed at regulating the global concern of climate change.

Another example of what we’ll call extreme federalism has been percolating in the Pacific Northwest for over five years and is now being contested in federal court. Continue reading “Washington State Officials Usurp Federal Authority with Crusade to Block Export Terminal”

Decision’s Permissive Standing Analysis Tags Ninth Circuit as Favorable Forum for Data-Related Suits

Cruz-Alvarez_FFeatured Expert Contributor—Civil Justice/Class Actions

By Frank Cruz-Alvarez, a Partner with Shook, Hardy & Bacon L.L.P. in the firm’s Miami, FL office, with Erica E. McCabe, an Associate in the firm’s Kansas City, MO office.

On February 26, 2018, the U.S. District Court for the Northern District of California tracked the U.S. Court of Appeals for the Ninth Circuit’s permissive approach to Article III standing when it denied Facebook Inc.’s (Facebook) renewed motion to dismiss for lack of subject matter jurisdiction in Patel, et al. v. Facebook Inc., ___F. Supp. 3d ___, 2018 WL 1050154 (N.D. Cal. Feb. 26, 2018).  In rejecting Facebook’s motion, the court held that the putative class properly alleged a concrete injury in fact, consistent with the U.S. Supreme Court’s ruling in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Spokeo I). Continue reading “Decision’s Permissive Standing Analysis Tags Ninth Circuit as Favorable Forum for Data-Related Suits”

Update: Ninth Circuit Affirms End of Iced-Coffee Serving-Size Class Action

Food Court Follies—A WLF Legal Pulse Series

In a September 7, 2016 post, we enthusiastically applauded a Central District of California judge’s decision to dismiss, with prejudice, a truly outrageous lawsuit filed against Starbucks. The plaintiff claimed Starbucks misled him into believing that a 12-ounce iced tea or coffee should contain 12 ounces of liquid, and that the ice should not factor into the drink size. The jilted consumer appealed to the U.S. Court of Appeals for the Ninth Circuit which, on March 12, 2018, finally affirmed the trial court in a three-page unpublished opinion. Forouzesh v. Starbucks Corp.

iced coffee
Misleading?

The three-judge panel agreed with the lower court that no reasonable consumer would be misled in the way Forouzesh claimed to have been, and thus he could not sustain claims under California consumer-protection laws. He also could not prevail in his fraud claim because he could not prove he justifiably relied upon Starbucks’ supposedly misleading product representations. Finally, the trial judge did not abuse his discretion when he dismissed the suit with prejudice, as any amendment Forouzesh made of his complaint would have been futile.

We trust that courts in other jurisdictions entertaining similar (and similarly bogus) claims against Starbucks and other beverage providers will take notice of the outcome, as will elected officials in other states that are reviewing permissive consumer-protection laws.

Update: Despite Previous Judicial Guidance, Misled-by-Maple Class Action Dismissed Again

maple and brown sugarFood Court Follies—A WLF Legal Pulse Series

Last November, a Food Court Follies series post offered two-cheers for a Central District of California judge’s dismissal of consolidated class actions filed against Quaker Oats (In re Quaker Oats Maple & Brown Sugar Instant Oatmeal Litigation). The two cheers were for properly finding that federal law preempted the suit because it would impose novel (i.e. additional) labeling requirements.

We withheld the third cheer in part because the court not only failed to dismiss the suit with prejudice, but it also counseled the plaintiffs on how they could re-plead around his preemption ruling. The plaintiffs filed an amended complaint on November 10, 2017.

The plaintiffs’ changes apparently amounted to “lipstick on a pig,” because on March 8, the court again dismissed the suit, this time with prejudice. Continue reading “Update: Despite Previous Judicial Guidance, Misled-by-Maple Class Action Dismissed Again”