This Justin: Timberlake Out of Suit but False-Labeling Action against Bai Beverage Mostly Survives

bai-brasilia-blueberry-202x4841Here at the WLF Legal Pulse, we routinely discuss class-action lawsuits filed against consumer-product makers, especially those who manufacture packaged foods. Plaintiffs’ lawyers have been clogging the aisles of grocery stores for years dissecting food labels for any possible regulatory misstep and perhaps signing up new clients in the process. We could write far more often on this subject, but frankly it’s increasingly difficult to find a decision that breaks new ground or a suit that is uniquely ridiculous. One recent decision was irresistible, however.

The Southern District of California’s March 7, 2019 decision in Branca v. Bai Brands LLC seems like a run-of-the-mill “your product isn’t completely natural” claim. It wasn’t the debate over whether the malic acid in Bai beverages is natural or artificial (though that is perversely interesting) that intrigued us, but the court’s personal-jurisdiction determinations. And Justin Timberlake. Plaintiff Kevin Branca sued Timberlake, a Bai investor, as well as Dr. Pepper Snapple Group CEO Larry Young and former Bai CEO Ben Weiss (Dr. Pepper ousted him when it bought Bai), individually. Continue reading “This Justin: Timberlake Out of Suit but False-Labeling Action against Bai Beverage Mostly Survives”

U.S. Government Should Champion Foreign-Commerce Authority in Washington Export Terminal Legal Dispute

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Port of Longview, WA

Lighthouse Resources, Inc. v. Inslee, a federal lawsuit of great national consequence pending in the U.S. District Court for the Western District of Washington (here and here are our past posts on it), has reached a critical point after a year of pre-trial developments. In its January 3, 2018 complaint, Lighthouse Resources (LHR) and BNSF Railway (which intervened as a plaintiff) allege that several Washington State officials, including Governor Jay Inslee, violated the U.S. Constitution and federal laws by blocking approval of a water-port terminal in Longview, Washington. Earlier this month, the plaintiffs moved for partial summary judgment on their claim that the officials intruded on the U.S. government’s exclusive authority over foreign commerce.

Given the lawsuit’s enormous implications for the American economy and federal foreign-affairs power, the U.S. government should file a “statement of interest” with the court urging it to enjoin Washington’s actions. Those actions—motivated, LHR and BNSF assert, by state officials’ desire to block foreign sales of a single disfavored commodity, coal—contravene a federal directive encouraging U.S. exports of energy resources to U.S. allies in Asia. Continue reading “U.S. Government Should Champion Foreign-Commerce Authority in Washington Export Terminal Legal Dispute”

Ninth Circuit Decision Underscores Need for Clarity on ADA’s Application in Cyberspace

patchworkDebate over whether the Americans with Disabilities Act’s (ADA) applies to websites has been raging for years—mostly in the federal courts. As happens all too often, federal legislators and regulators have remained mostly mute, leaving judges to resolve this thorny question. This default appeal to the judiciary, which has produced divergent decisions, deprives website owners the consistent and transparent fair notice that the free-enterprise system needs (and that businesses deserve under our Constitution) to function.

The Ninth Circuit is the latest court to stitch a new block onto the patchwork quilt of website-related ADA rulings. On January 15, the court held in Robles v. Domino’s Pizza, LLC that the company’s website was a service of a “place of public accommodation” (Domino’s physical stores) and thus must be accessible under the ADA. The court also rejected Domino’s argument that the Justice Department’s failure to offer formal guidance on the websites’ ADA status violated their Fifth Amendment right to due process. The Robles decision was highly anticipated and will have a broad impact, evidenced by the amicus brief filed by a coalition of business associations. Continue reading “Ninth Circuit Decision Underscores Need for Clarity on ADA’s Application in Cyberspace”

Airbnb v. NYC: Data Collection and Fourth Amendment Protection

airbnbDuring 2018, the hand-wringing demands for “better” protection of online consumers’ privacy (despite the likely costs, some of which we documented here) grew to a fever pitch. Easily forgotten amid the cacophony is data-collecting companies’ own expectation of privacy in their extremely valuable property. A federal court decision last week provides a timely reminder that businesses possess civil liberties too, which they can use to defend against unreasonable government intrusion. The decision also gives local, state, and federal regulators and legislators something to keep in mind as they rush to “do something” about data privacy.

The decision arises from New York City’s attempt to minimize the societal ills that purportedly accompany short-term rentals. Citing the difficulty of enforcing a 2010 city ordinance that prohibits certain rental arrangements, the City Council approved a second ordinance last year requiring all home-share “booking services” to hand over monthly transaction reports. Regulators could then scour the reports for violations of the 2010 law. The 2018 law, which was to take effect on February 2, imposes fines of up to $1,500 for each withheld listing. Continue reading Airbnb v. NYC: Data Collection and Fourth Amendment Protection”

Unreasonable Second Circuit Decision Sets Daunting Precedent for Packaged-Food Makers

cheez itA decision this month from the U.S. Court of Appeals for the Second Circuit reunites us with an old friend, The Reasonable Consumer. As we’ve discussed in previous posts here and in Washington Legal Foundation publications, The Reasonable Consumer has figured prominently in consumer class-action lawsuits that allege harm from supposedly deceptive or misleading food labels. That’s because the question at issue in the Second Circuit case, Mantikas v. Kellogg Company, is a common one in Food Court litigation: would a reasonable consumer interpret the relevant information on the food package the same way the plaintiff claims to have read it, and be similarly misled? Continue reading “Unreasonable Second Circuit Decision Sets Daunting Precedent for Packaged-Food Makers”

In Ongoing Lawsuit Barrage, Professional Green Activists Disregard Due-Process Concerns

DOIAfter the Executive Branch changed hands a little over two years ago, professional environmental activists promised a steady stream of lawsuits against both private enterprises and the federal government. Such a bold pronouncement was great for the green activists’ fundraising, as environmental non-profits bragged of 100 to 700 percent increases in donations.

Those groups have certainly followed through on their pledge, filling federal district and appellate courts’ dockets with lawsuits. One group’s homepage, for instance, boasts the group has sued the administration 95 times, “and we’re nowhere near finished.” In their zeal to vastly expand the applicability of federal laws and regulations and to block reasonable federal policy changes, green activists have shown little interest in the due-process rights of businesses and individuals. Lawsuits to overturn two federal policies illustrate this disregard. Continue reading “In Ongoing Lawsuit Barrage, Professional Green Activists Disregard Due-Process Concerns”

Regulatory and Legal Barriers to Tech-Company Market Entry, Success, Stubbornly Persist

FTC_Man_Controlling_TradeLast month at The Atlantic Festival, FTC Commissioner Slaughter and former FTC Chair Ohlhausen participated in an enlightening interview on technology regulation. When discussing how the United States approaches regulation compared to other nations, Ohlhausen said the U.S. has such an “enormous presence in the tech space” due in part to America’s “lighter touch” on regulation.

Slaughter questioned whether regulation stifled innovation to the extent Ohlhausen inferred, noting that Silicon Valley is located in a state with a particularly challenging regulatory and legal environments.

Commissioner Slaughter’s comments, and the perspective they represent, merit serious reflection and analysis, especially with the FTC holding an ongoing series of Hearings on Competition and Consumer Protection in the 21st Century. Stakeholders participating in and commenting on those hearings should remind the Commission of regulation’s impact on innovation. Evidence abounds of that connection. Continue reading “Regulatory and Legal Barriers to Tech-Company Market Entry, Success, Stubbornly Persist”