In Mixed Opinion, Ninth Circuit Allows “All Natural Fruit” Litigation to Continue While Decertifying Class

dolefruitOn September 30, just two weeks after hearing oral argument in the case (which we previewed here), the Ninth Circuit released an unpublished opinion in Brazil v. Dole Packaged Foods, partially reversing the district court.  The opinion correctly upheld the district court’s dismissal of one of Brazil’s “outlandish theor[ies]” and its decertification of the class.  Unfortunately, the Ninth Circuit relied on nonbinding FDA guidance and warning letters to evaluate what would mislead a reasonable consumer, reversing the district court’s dismissal of his other claims.  Although not officially precedential, the opinion is worth reviewing because it has the potential to guide lower courts and gives insight into the Ninth Circuit’s future food-labeling decisions. Continue reading

Video of WLF’s 30th Annual Preview Briefing of US Supreme Court Term Now Available

Our annual briefing was moderated by WLF Legal Policy Advisory Board Chairman Jay Stephens and featured commentary on free-enterprise-oriented cases the Court will hear this Term by Neal Katyal of Hogan Lovells and Daryl Joseffer of King & Spalding LLP.

The following materials were provided to attendees:

Using “Daubert” to Exclude Plaintiffs’ Use of Flawed Surveys in Civil Litigation

Tager_09181Featured Expert Column: Judicial Gatekeeping of Expert Evidence

By Evan M. Tager, Mayer Brown LLP, with Carl J. Summers, Mayer Brown LLP

Expert testimony is typically thought of as providing an insight into the evidence in the case, or drawing a conclusion from the evidence, that requires knowledge beyond the ken of a typical judge or juror.  But expert testimony also can be used as a substitute for evidence that a party cannot, or does not want to, present through traditional evidentiary methods.  Although courts have allowed such expert testimony in certain contexts, there is cause for concern when a party offers an expert whose function is to fill a gap in the evidence.

Notable among this category of expert testimony are opinions offered during class-certification proceedings in an effort to show that a case can be efficiently managed on a class-wide basis.  Such testimony often takes the form of surveys or other statistical sampling techniques designed to establish liability or damages on a class-wide basis without requiring adjudication of each individual claim.  Continue reading

The Supreme Court’s NOT Top 10: October Term 2015 Petitions the Justices Should Have Granted

supreme courtThis Monday the U.S. Supreme Court will conduct its Long Conference, so named for the larger than usual number of certiorari petitions it considers there.  With the fate of so many cert petitions hanging in the balance—and the overwhelming majority of them about to be denied—now is an opportune time to look back at the top 10 cases that were wrongly denied cert in the Court’s last term.

As with the previous installments of my “Not Top 10” list (see here and here), no more than half the cases discussed below will be ones in which Washington Legal Foundation filed a brief in support of certiorari.  Also, the cases will once again be limited to those that affect economic liberty, including the need for legal certainty around key legal policies and regulatory regimes.  From WLF’s free-enterprise perspective, those cases that implicate competition in the marketplace, limited and accountable government, individual and business civil liberties, or rule of law concerns matter the most. Continue reading

Federal Court in NY Cites Obstacle Preemption in Dismissing State-Law Fraud Suit Against Organic Producer

Cruz-Alvarez_FFeatured Expert Contributor — Civil Justice/Class Actions

Frank Cruz-Alvarez, a Partner in the Miami, FL office of  Shook, Hardy & Bacon L.L.P. with Ravika Rameshwar, an Associate with the firm.

On August 23. 2016, the US District Court for the Eastern District of New York dismissed a class-action suit that alleged the makers of Similac® Advance® Organic Infant Formulas fraudulently misrepresented the products as “organic,” holding that the state claims are preempted by federal law—specifically, the Organic Foods Production Act of 1990.  Marentette et. al. v. Abbott Laboratories, Inc., 2016 WL 4444787 (E.D.N.Y Aug. 23, 2016).  The court stated that Congress designed the OFPA to create a national standard for organic labeling that would be “disrupted, if not thwarted,” by inconsistent state and federal court decisions.  Marentette, 2016 WL 4444787, at *8. Continue reading

Ninth Circuit to Hear Oral Argument in Pair of Food-Labeling Cases

9thCirToday, September 12, the United States Court of Appeals for the Ninth Circuit will hear oral arguments in two class-action food-labeling cases.  The issues before the court are similar and the cases arise from nearly identical facts: the plaintiffs allege that the defendants’ product labels are false or misleading in violation of various state laws because they claim to be “natural.”  The appeals will also be heard by the same panel—Judges Fletcher, Christen, and Friedland.  In considering these two appeals, the Ninth Circuit will have a chance to set a major precedent that could either reduce the flow of food-labeling suits into California-based federal courts or open the spigot even wider.

The similarities between the two cases, Brazil v. Dole Packaged Foods, LLC and Briseno v. ConAgra, Inc., are striking.  The plaintiffs filed putative class actions alleging that the defendants violated various statutory and common-law causes of action by labeling some of their products as “All Natural” or “100% Natural.”  Brazil claims that Dole’s use of “All Natural” on several of its juices’ labels is false or misleading because the company added ascorbic acid (vitamin C) and citric acid.  Both additives occur naturally in the juice products.  Similarly, Briseno claims that ConAgra’s “100% Natural” label is false or misleading because the Wesson Oil in question contains genetically modified organisms (GMOs). Continue reading

Fed Up Multidistrict Litigation Judge Reminds Plaintiffs’ Lawyers of His Sanction Authority

jpml“Enough is enough.”

That is how Judge Clay D. Land, Chief Judge of the US District Court for the Middle District of Georgia, concluded the first paragraph of a scathing five-page order in the multidistrict litigation (MDL) proceeding In re Mentor Corp. Obtape Transobturator Sling Products Liability Litigation. The September 7, 2016 order includes three-and-a-half pages of what Judge Clay himself labeled “Obiter Dictum.” For non-lawyers or those not fluent in Latin, obiter dictum is that part of a judicial opinion that is not necessary to the holding of the case.

Dicta it may be, but those three-and-a-half pages offer a spot-on critique of the MDL process by an experienced judge who has garnered significant criticism from defense-side lawyers for some of his pro-plaintiff rulings in the In re Mentor litigation. Continue reading