Update: Second Circuit Upholds Dismissal of Absurd Diet-Soda Class Action

diet pepsiNearly a year ago in Neither Reason nor Science Supports Class Actions against Diet Soda Makers, we applauded the dismissal of several copycat class-action lawsuits alleging that because the word “diet” in “diet soda” implies the beverage aids in weight loss, companies like Pepsi and Dr. Pepper were misleading consumers. Consumers were misled, the suits asserted, because the artificial sweetener being used causes weight gain. The plaintiffs cited scientific studies they said supported that conclusion.

One decision by the U.S. District Court for the Southern District of New York, Manuel v. Pepsi-Cola Co., thoroughly dismantled the studies plaintiffs relied upon, holding that at most the studies supported a correlation between the sweeteners and weight gain, not causation.

The U.S. Court of Appeals for the Second Circuit affirmed that decision last month. On April 17, the same court, in a curt summary order, affirmed the dismissal of another diet-soda suit by the Southern District of New York, Excevarria v. Dr. Pepper Snapple Group, Inc.  The order explained that even if the reasonable consumer believed that a product containing the word “diet” was making promises about weight management, the studies Excevarria cited did not establish a causal connection between the artificial aspertame and weight gain.

Several other dismissed diet-soda class actions are awaiting decisions from the Ninth Circuit. Because all these suits rely on the same flawed studies, Manuel and Excevarria should seal the fate of those pending appeals.

In Climate Suits, Cities Ask Judges to Start a Primitivist Revolution

standardTo illuminate a modest living room for three hours a night for two months, you would need about a million lumen-hours of light. Now consider three inflation-adjusted numbers. One: in 1800 a subject of George III could get that much light for around £9,500. Two: in 1900 a subject of Queen Victoria could get it for around £230. Three: by 2000 it cost a subject of Elizabeth II less than £3.

What happened?

For one thing, Standard Oil happened. John D. Rockefeller was a fanatic. He kiln-dried barrel wood to save the expense of shipping trace amounts of water. He tested whether a drum needed 40 drops of sealant, or whether 39 would do. He relentlessly cut the cost of refining lamp oil. “Unlike the spermaceti candles of decades prior, sometimes wrapped in tissue paper fit for jewelry,” writes Bhu Srinivasan, “cheap tin cans filled with kerosene now allowed the common man to light his home.” These “cheap tin cans” fired the lamps of Britain. Continue reading “In Climate Suits, Cities Ask Judges to Start a Primitivist Revolution”

Update: Supreme Court to Decide Whether the CWA Regulates Discharges through Groundwater to Waters of the United States

Sam Boxerman, Featured Expert Contributor, Environmental Law and Policy


As we anticipated in our post last year, the Supreme Court has granted a petition for a writ of certiorari from the Ninth Circuit in County of Maui v. Hawaii Wildlife Fund. The justice will decide whether the Clean Water Act (CWA) regulates discharges through groundwater that reach a water of the United States (WOTUS). The certiorari grant embraced the Solicitor General’s view, who filed an amicus brief urging the Court to take the case and decide the groundwater discharge issue.

This issue has become a prominent one in CWA jurisprudence recently, with three circuit courts of appeals weighing in on the issue in five decisions in 2018 alone. The circuits are split; the Ninth Circuit and the Fourth Circuit have determined that the CWA does regulate discharges to groundwater, while the FifthSixth, and Seventh Circuits have held that it does not.

If the Court ultimately sustains the Ninth Circuit’s approach, Maui will have far reaching implications for CWA regulation and enforcement, particularly for spills and other releases that reach groundwater. Moreover, the Court is addressing the case at the same time that EPA and the Corps are receiving comments on their proposed revised definition of what is a water of the United States.  Although Maui is not expected to address the definition of WOTUS, the decision will bear close reading for any Supreme Court insights into that all-important Clean Water Act term.

The Court added Maui to the docket for its October Term 2019, which begins this fall on October 7.

*Sam Boxerman is a Partner in the Washington, DC office of Sidley Austin LLP.


Government’s Authority to Unilaterally Dismiss Qui Tam Fraud Suit Faces Court Test

whistleLast week, the United States filed its long-awaited motion to dismiss a major False Claims Act (FCA) lawsuit filed in the Northern District of California, U.S. ex rel. Campie v. Gilead Sciences, Inc. The Government argued that dismissal was warranted “to avoid the additional expenditure of government resources on a case that it fully investigated and decided not to pursue.” Last December in a U.S. Supreme Court filing, the Government promised that it would seek dismissal of the suit—filed by whistleblowers formerly employed by Gilead, a large brand-name drug manufacturer. The Government likely made that promise to ensure that the Supreme Court would not agree to hear Gilead’s appeal from a Ninth Circuit decision reinstating the case.

The motion could end up becoming a major test of the Granston Memo, a January 2018 Department of Justice memo that directed department lawyers who review FCA qui tam lawsuits to consider seeking dismissal. The FCA grants the Government a virtually unfettered right to dismiss FCA suits filed by private litigants in the name of the United States. Yet the Ninth Circuit and several other federal appeals courts have demonstrated their willingness to closely examine Government efforts to shut down relators’ FCA lawsuits. And the district judge hearing the Gilead case very recently rejected a similar motion to dismiss—ruling that the Government must demonstrate that it has undertaken an absolutely thorough investigation before he will even consider dismissal. Continue reading “Government’s Authority to Unilaterally Dismiss Qui Tam Fraud Suit Faces Court Test”

Proposed Federal Alcohol Labeling Revisions Retain Constitutionally Suspect Review Standards

TTBOn November 26, 2018, the Alcohol and Tobacco Tax and Trade Bureau (TTB) published an extensive proposed rule that seeks to “reorganize and codify [labeling and advertising] regulations in order to simplify and clarify regulatory standards … and reduce the regulatory burden on industry members where possible.” The agency is accepting public comments on the proposal until June 26, 2019.

TTB’s efforts to streamline the rules and finally recognize long-standing First Amendment precedents are welcome. But parts of the proposed rule do not adequately protect the commercial speech rights of alcohol-beverage producers and consumers. We’ll focus here (as WLF will in its forthcoming public comment) on the prohibition of statements on labels or in advertisements that are disparaging, false, misleading, obscene, or indecent.

While encouraging civility in the wine, beer, and spirits marketplace may be a noble cause, simply stating that such regulation “reflects … longstanding ATF and TTB policy” will not save rules that restrict commercial speech from successful court challenges. Continue reading “Proposed Federal Alcohol Labeling Revisions Retain Constitutionally Suspect Review Standards”

The First Amendment in the Supreme Court: “Scandalous” Trademarks and Labor Unions

Megan Brown, Featured Expert Contributor, First Amendment

Continue reading “The First Amendment in the Supreme Court: “Scandalous” Trademarks and Labor Unions”

Supreme Court’s DeVries Decision Doesn’t Spell the End of “Bare Metal” Defense in Asbestos Cases

Featured Expert Contributor, Mass Torts—Asbestos

RobertWrightRobert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

Last month, the United States Supreme Court rejected the “bare metal” defense to products liability claims in maritime cases.  Air & Liquid Systems v. DeVries, No. 17-1104, 2019 WL 1245520 (U.S. Mar. 19, 2019).  Some have predicted that the decision marks the beginning of the end for that defense even outside the maritime context.  But the prediction is premature.  The DeVries decision comes after the highest courts in some states have already embraced the “bare metal” defense and in doing so rejected the same arguments that the DeVries majority has now endorsed.  Those state decisions will continue to control in those jurisdictions, at least in non-maritime cases.  Further, those state courts are unlikely to reverse course and accept arguments that they so recently rejected.

In DeVries, the families of naval veterans who had died of cancer brought products liability claims against the manufacturers of pumps, blowers, and turbines used on naval ships, claiming that the manufacturers were negligent in failing to warn of the risks of asbestos-containing insulation the Navy used with their products.  The district court granted summary judgment for the manufacturers, holding that under the “bare metal” defense, the manufacturers were not liable for failing to warn about asbestos-containing products that they did not manufacture or supply.  The U.S. Court of Appeals for the Third Circuit reversed, holding that the manufacturers had a duty to warn because it was “foreseeable” that the asbestos-containing products would be used with their products. Continue reading “Supreme Court’s DeVries Decision Doesn’t Spell the End of “Bare Metal” Defense in Asbestos Cases”