Neither Reason nor Science Supports Class Actions against Diet Soda Makers

 

A Food Court Follies Analysis

No doubt, many a diet soda will be consumed this weekend. Will any of those consumers, though, purchase that soda—in reliance on the manufacturers’ devious use of “diet”—because they think it will assist in weight loss?

diet pepsiThat impression is the basis of a number of copycat consumer class-action lawsuits filed in New York and California by the same lawyers on behalf of soda purchasers against Coca-Cola, PepsiCo, and Dr. Pepper Snapple Group. Four such suits have been dismissed, the most recent being Manuel v. Pepsi-Cola Co. in an pointedly written opinion by U.S. District Court for the Southern District of New York Judge Paul A. Engelmayer. Continue reading “Neither Reason nor Science Supports Class Actions against Diet Soda Makers”

Update: Federal District Court Rejects Minority View on Pharma “Innovator Liability”

pillsIn a recent post, West Virginia’s High Court Rejects Novel Theory of “Innovator Liability”, WLF Senior Litigation Counsel Cory Andrews discussed a state court decision that declined liability on a pharmaceutical manufacturer for alleged harms caused by a drug it did not produce. In doing so, the West Virginia Supreme Court of Appeals parted company with the highest courts of two other states, California and Massachusetts, which earlier this year embraced the minority view that plaintiffs can recover damages from so-called branded pharmaceutical companies for harms allegedly caused by the generic copy of the the brand-name drug.

On May 21, a U.S. District Court for the District of Massachusetts judge overseeing a multidistrict litigation, In re: Zofran (Ondansetron) Products Liability Litigation, followed the majority view of innovator liability and dismissed three claims filed by plaintiffs who had only ingested the generic version of Zofran. Continue reading “Update: Federal District Court Rejects Minority View on Pharma “Innovator Liability””

West Virginia’s High Court Rejects Novel Theory of “Innovator Liability”

west vaShould the law recognize a plaintiff’s tort claims against a branded drug manufacturer when the drug that allegedly caused the plaintiff’s injuries was manufactured and sold by the defendant’s generic competitor? State and federal courts have been grappling with this novel question of “innovator liability” ever since the U.S. Supreme Court held, in Pliva and Bartlett, that such tort claims against generic manufacturers are preempted under federal law.

At bottom, innovator liability seeks to hold innovator drug manufacturers liable for injuries resulting from products they neither manufactured nor sold. Such “deep pocket jurisprudence,” as a recent Washington Legal Foundation paper by Shook Hardy & Bacon’s Victor Schwartz explains, marks a radical departure from long-settled principles of product liability premised on a naked policy decision that shifts financial responsibility onto a third party with the deepest pockets. Continue reading “West Virginia’s High Court Rejects Novel Theory of “Innovator Liability””

Update: Ninth Circuit Softens its Decision in Flushable Wipes Case

roibal_lucia_webGuest Commentary

By Lucía Roibal, an Associate with Morrison & Foerster LLP in the firm’s San Francisco, CA office. This commentary is reposted with permission, originally appearing on May 17, 2018 in the firm’s Class Dismissed  blog.

On May 9, 2018, the U.S. Court of Appeals for the Ninth Circuit issued an Opinion amending its previous decision in Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017).  As noted in a December 4, 2017 post on the 2017 decision, the Ninth Circuit had held that the fact that a plaintiff now knows the “truth” of an allegedly false advertisement does not foreclose injunctive standing.

In its amended Opinion, the panel clarifies its decision and refines the requirements for injunctive standing in the misbranding context in three ways: (1) it confirms that Article III injunctive standing requires plaintiffs to allege an intent to repurchase the product at issue; (2) it changes its previous stance that consumer protection laws would be gutted without injunctive relief; and (3) it holds that Plaintiff sufficiently alleged a “concrete and particularized” injury as well as redressability. Continue reading “Update: Ninth Circuit Softens its Decision in Flushable Wipes Case”

A Class-Action Paradise: Legal Environment in California Encourages Frivolous Claims

food-courtA Food Court Follies Analysis

California: the land of beaches, Hollywood, and lawsuits.  A land where dreams can come true and where plaintiff-friendly statutes and forgiving federal judges allow consumer class actions to reign supreme.  Here on the WLF Legal Pulse, we have previously blogged on series of cases filed in California in which consumers allege that wording or images on a packaged food product misled them into making a purchase.  One notable subset of these cases involves supposed geographical-location deception—brewers make purchasers believe their beer was brewed in a (usually exotic or foreign) location when it was actually made someplace else.

These suits are made possible by permissive California laws which allow plaintiffs to file class actions against any manufacturer for just about any reason.  Federal district court judges in the state compound the plaintiff-friendly atmosphere by being especially tolerant of poorly plead (or frivolous) claims, routinely handing plaintiffs’ attorneys two or three bites at the apple while also spelling out how to best amend their complaints.   Continue reading “A Class-Action Paradise: Legal Environment in California Encourages Frivolous Claims”

Circuit Split Grows over Whether Evidence Supportive of Class Certification Must be Admissible

Tager_09181Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

By Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Carl J. Summers, Counsel with Mayer Brown LLP.

The Supreme Court explained in Wal-Mart Stores, Inc. v. Dukes that “Rule 23 does not set forth a mere pleading standard.  A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”  You would think that would mean that plaintiffs seeking class certification must support their motion with admissible evidence.  Indeed, in Dukes the Supreme Court observed that the district court had held that “Daubert did not apply to expert testimony at the certification stage of class-action proceedings” and commented: “We doubt that is so.”

Nevertheless, relying on a 1975 Ninth Circuit decision and a pre-Dukes decision of the Eighth Circuit, the Ninth Circuit recently held in Sali v. Corona Regional Medical Center that “[i]nadmissibility alone is not a proper basis to reject evidence submitted in support of class certification” and that a district court therefore abused its discretion by declining to consider a declaration “solely on the basis of inadmissibility.”  Continue reading “Circuit Split Grows over Whether Evidence Supportive of Class Certification Must be Admissible”

U.S. Supreme Court to Settle Circuit Split on “Bare Metal Rule” Frequently Invoked in Asbestos Suits

RobertWrightFeatured Expert Contributor, Mass Torts—Asbestos

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

On May 14, 2018 the United States Supreme Court agreed to decide a recurring issue in asbestos actions, the “bare-metal” rule.  The Supreme Court granted the petition for writ of certiorari of four businesses that often face products-liability claims in asbestos actions, CBS Corporation, Air & Liquid Systems Corp., Foster Wheeler LLP and Ingersoll Rand, Inc.  The issue, as framed in the petition, is whether products-liability defendants can be liable “under maritime law for injuries caused by products that they did not make, sell, or distribute.” Continue reading “U.S. Supreme Court to Settle Circuit Split on “Bare Metal Rule” Frequently Invoked in Asbestos Suits”