Food Court Follies: Yogurt Buyers’ Attempt to Milk “All Natural” Litigation Trend Rejected

yogurtAmong the hundreds of food-labeling class actions filed this decade, claims challenging a product’s “natural” or “all natural” declaration have stood out in number and notoriety. The latter characteristic is especially true about suits where a product is purportedly unnatural because an ingredient was “genetically modified.” A recent federal court decision reminds us that no matter how notable GMO-related claims are, or how convinced some are that their food contains GMOs and is thus not natural, a plaintiff still must plausibly allege such facts in her suit. Continue reading “Food Court Follies: Yogurt Buyers’ Attempt to Milk “All Natural” Litigation Trend Rejected”

Ninth Circuit Finds Lower Court Erred in Flushing “Flushable” Wipes False Advertising Claims

laks_alexandra_webroibal_lucia_webGuest Commentary

By Alexandra Laks and Lucía Roibal, Associates with Morrison & Foerster LLP in the firm’s San Francisco, CA office. This commentary is reposted with permission, originally appearing on December 4, 2017 in the firm’s Class Dismissed  blog.

On October 20, 2017, a unanimous Ninth Circuit panel in Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017), resolved a circuit-wide split on injunctive standing requirements in the misbranding context.  The panel addressed whether a plaintiff allegedly deceived by false advertising has Article III standing to enjoin a false statement despite knowing the statement’s “true” meaning.  The panel answered in the affirmative, reversing the district court’s decision and reviving plaintiff’s “flushable” wipes false advertising claims.  The panel also held that plaintiff had adequately alleged that defendants’ wipes advertisements were false and that she had suffered an economic injury as a result. Continue reading “Ninth Circuit Finds Lower Court Erred in Flushing “Flushable” Wipes False Advertising Claims”

FDA Makes a Welcome Return to Courtroom Advocacy for Uniform, National Regulation

FDAThrough the Food, Drug & Cosmetic Act (FDCA) and its amendments, Congress put the Food and Drug Administration (FDA) in charge of establishing uniform, national regulation of consumer products. In the past decade, private litigants and state officials have increasingly undercut regulatory uniformity through state tort and consumer-protection lawsuits. Rather than defend its congressional mandate through amicus briefs or other courtroom advocacy, FDA remained mostly silent during that period.

This year, under the leadership of Commissioner Scott Gottlieb and Chief Counsel Rebecca Wood, FDA has stepped off the sidelines and is once again promoting uniformity by defending its regulatory role in several third-party legal action. That is a positive development for the producers and purchasers of FDA-regulated goods, which comprise nearly 25% of U.S. consumer spending. Continue reading “FDA Makes a Welcome Return to Courtroom Advocacy for Uniform, National Regulation”

Food Court Follies: Misled-By-Maple Class Action Against Quaker Oats Preempted

maple and brown sugarIn all the blogging we’ve done on food-related consumer-protection litigation over the past five years, we’ve said very little about one of our favorite federal constitutional doctrines, federal preemption. That’s because the Food Court Bar has filed the vast majority of its claims in California, which has a statute, the Sherman Food, Drug, and Cosmetic Law, that explicitly incorporates all federal food laws and regulations. Plaintiffs’ lawyers have been able to defeat most preemption arguments by asserting Sherman Act violations, remedies for which would impose the same requirements as would federal law. Preemption defenses can prevail only when state law (or a state court decision) imposes obligations in conflict with federal law.

But in a series of recent suits against Quaker Oats Company, plaintiffs’ lawyers took a shot at imposing controls on oatmeal-product labeling that went beyond what federal rules required. Perhaps they thought the Central District of California would give them a pass, or that they could convince the court through some legal slight-of-hand. Judge Philip S. Gutierrez, who is presiding over the consolidated class actions, wasn’t buying it, however. On October 10, 2017, he dismissed the plaintiffs’ claims as preempted by federal law. In re Quaker Oats Maple & Brown Sugar Instant Oatmeal Litigation. Continue reading “Food Court Follies: Misled-By-Maple Class Action Against Quaker Oats Preempted”

Federal Judicial Advisory Panel to Assess Multidistrict Litigation Rules Proposals

US courtsAccording to a November 8, 2017 National Law Journal article, the chairman of the Judicial Conference Advisory Committee on Rules of Civil Procedure “suggested creating a subcommittee to take up a package of proposals to amend multidistrict litigation procedures” at a meeting this week. The article noted that the Advisory Committee had received a number of requests for rulemaking on the subject.

Lawyers for Civil Justice (LCJ) submitted one of the requests, asking the Advisory Committee to amend selected Rules to adapt their application to cases consolidated for pre-trial proceedings. Washington Legal Foundation wrote to the Advisory Committee in late September, supporting LCJ’s rulemaking request and attaching two recent WLF publications (read them here and here) that positively underscore the unique challenges and pitfalls posed by multidistrict litigation.

The Advisory Committee’s subcommittee will be undertaking challenging and important work, and we commend the Committee for its response to the request made by LCJ and other organizations.

Update: Plaintiffs in Subway Not-Foot-Long Class Action Throw in the Napkin

1ftIn September WLF’s Cory Andrews applauded the U.S. Court of Appeals for the Seventh Circuit’s rejection of a settlement of a consumer-fraud class-action suit against Subway. The suit alleged that not all Subway foot-long sandwiches measured a full 12″. The WLF Legal Pulse post did note, however, that on the basis of “new” information from an employee of one of Subway’s vendors, the plaintiffs refiled their suit in a Wisconsin federal court after the appeals court’s dismissal.

We learned today, thanks to the Institute for Legal Reform (ILR) (which kindly referenced our September post) and the Legal Newsline story ILR referenced, that the plaintiffs voluntarily dismissed their suit late last month. Not surprisingly, the plaintiffs’ quiet surrender garnered substantially less attention than the filing of their original lawsuit in 2013.

Court Order Imposing $9 Million Sanction Paints Sordid Tale of Ethically-Challenged Lawyering

middle districtThe lure of easy money, as the late Glen Frey once sang, has a very strong appeal. It routinely inspires less-than-ethical behavior from those who pursue it. Lawyers are certainly no exception, as a recent investigation and resulting federal court sanctions order reflects. The October 18, 2017 opinion, weighing in at 148 pages, is a meticulously detailed indictment of two attorneys’ abusive pursuit of easy money from the never-ending Florida tobacco litigation.

The sordid tale’s roots trace back to the disastrous 2006 Florida Supreme Court decision, Engle v. Liggett Group. This per curiam (i.e. unsigned) opinion decertified a class of 700,000 smokers. It also held that a generic conclusion reached by the initial Engle jury—that cigarettes are defectively designed and unreasonably dangerous—would have preclusive effect in all future, individual lawsuits filed by the decertified class of Florida smokers. Continue reading “Court Order Imposing $9 Million Sanction Paints Sordid Tale of Ethically-Challenged Lawyering”