Decision’s Permissive Standing Analysis Tags Ninth Circuit as Favorable Forum for Data-Related Suits

Cruz-Alvarez_FFeatured Expert Contributor—Civil Justice/Class Actions

By Frank Cruz-Alvarez, a Partner with Shook, Hardy & Bacon L.L.P. in the firm’s Miami, FL office, with Erica E. McCabe, an Associate in the firm’s Kansas City, MO office.

On February 26, 2018, the U.S. District Court for the Northern District of California tracked the Ninth Circuit’s permissive approach to Article III standing when it denied Facebook Inc.’s (Facebook) renewed motion to dismiss for lack of subject matter jurisdiction in Patel, et al. v. Facebook Inc., ___F. Supp. 3d ___, 2018 WL 1050154 (N.D. Cal. Feb. 26, 2018).  In rejecting Facebook’s motion, the court held that the putative class properly alleged a concrete injury in fact, consistent with the U.S. Supreme Court’s ruling in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Spokeo I). Continue reading “Decision’s Permissive Standing Analysis Tags Ninth Circuit as Favorable Forum for Data-Related Suits”

Update: Ninth Circuit Affirms End of Iced-Coffee Serving-Size Class Action

Food Court Follies—A WLF Legal Pulse Series

In a September 7, 2016 post, we enthusiastically applauded a Central District of California judge’s decision to dismiss, with prejudice, a truly outrageous lawsuit filed against Starbucks. The plaintiff claimed Starbucks misled him into believing that a 12-ounce iced tea or coffee should contain 12 ounces of liquid, and that the ice should not factor into the drink size. The jilted consumer appealed to the U.S. Court of Appeals for the Ninth Circuit which, on March 12, 2018, finally affirmed the trial court in a three-page unpublished opinion. Forouzesh v. Starbucks Corp.

iced coffee

The three-judge panel agreed with the lower court that no reasonable consumer would be misled in the way Forouzesh claimed to have been, and thus he could not sustain claims under California consumer-protection laws. He also could not prevail in his fraud claim because he could not prove he justifiably relied upon Starbucks’ supposedly misleading product representations. Finally, the trial judge did not abuse his discretion when he dismissed the suit with prejudice, as any amendment Forouzesh made of his complaint would have been futile.

We trust that courts in other jurisdictions entertaining similar (and similarly bogus) claims against Starbucks and other beverage providers will take notice of the outcome, as will elected officials in other states that are reviewing permissive consumer-protection laws.

Update: Despite Previous Judicial Guidance, Misled-by-Maple Class Action Dismissed Again

maple and brown sugarFood Court Follies—A WLF Legal Pulse Series

Last November, a Food Court Follies series post offered two-cheers for a Central District of California judge’s dismissal of consolidated class actions filed against Quaker Oats (In re Quaker Oats Maple & Brown Sugar Instant Oatmeal Litigation). The two cheers were for properly finding that federal law preempted the suit because it would impose novel (i.e. additional) labeling requirements.

We withheld the third cheer in part because the court not only failed to dismiss the suit with prejudice, but it also counseled the plaintiffs on how they could re-plead around his preemption ruling. The plaintiffs filed an amended complaint on November 10, 2017.

The plaintiffs’ changes apparently amounted to “lipstick on a pig,” because on March 8, the court again dismissed the suit, this time with prejudice. Continue reading “Update: Despite Previous Judicial Guidance, Misled-by-Maple Class Action Dismissed Again”

Update: FDA’s Amicus Views Prevail in Third Circuit Medical-Device Preemption Case

FDALate last year we highlighted steps the Food and Drug Administration (FDA) made in 2017 to reestablish its authority as uniform regulator of drugs and medical devices.  That role, we explained, was in danger due to the ever-increasing list of state tort and consumer-protection lawsuits brought by plaintiffs’ attorneys on behalf of private litigants.  In the post, we examined three instances where FDA independently stepped in to ongoing litigation to advance arguments supportive of regulatory uniformity.

In one instance, FDA submitted an amicus brief to the Third Circuit in a case where the plaintiff alleged that the manufacturer of his artificial hip promoted the device illegally.  In its brief, FDA emphasized that the Food, Drug & Cosmetic Act (FDCA) expressly preempted state-law claims that would impose “different or additional requirements on approved devices.”  Because each of the plaintiffs’ claims challenged the safety and effectiveness of an approved device, FDA argued that any state-law claim would “impose additional requirements” and was thus preempted by the FDCA.

In its March 1, 2018 opinion in Shuker v. Smith & Nephew, PLC, the Third Circuit agreed with FDA.  Holding that the plaintiffs’ claims “would impose non-parallel state law requirements,” the appellate court found the state-law claims preempted.

The Third Circuit’s decision is just another example of the importance of FDA’s role as uniform regulator.  Hopefully FDA’s current leadership will continue to lead the way in ensuring the consistency that all consumers expect when making choices about their medical products.

Show Me the Slack Fill: State’s Overly Pliable Consumer-Fraud Law Courts Dubious Litigation

raisnetsFood Court Follies—A WLF Legal Pulse Series

Litigation involving processed foods and other packaged goods has become so popular that cases are now routinely filed not only over what’s in the package, but also over what’s not in the package. Lawsuits over empty space, colloquially known as “slack-fill,” enrich plaintiffs’ lawyers while according little or no benefit to consumers. These lawyers have flocked to courts that have broadly interpreted already flexible consumer-protection laws. Targeted businesses have started to express their concerns, and elected officials are beginning to listen.

One state where reform is afoot is Missouri. A very recent federal court decision there in a slack-fill suit reflects why that state’s law is under reconsideration. Continue reading “Show Me the Slack Fill: State’s Overly Pliable Consumer-Fraud Law Courts Dubious Litigation”

Ohio High Court Confirms Cumulative-Asbestos-Exposure Theory Cannot Establish Legal Causation

RobertWrightFeatured Expert Contributor, Mass Torts—Asbestos

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

The Supreme Court of Ohio has held that a cumulative exposure theory, which posits that every nontrivial exposure to asbestos is a substantial factor in causing mesothelioma, does not satisfy the Ohio statute governing causation in asbestos cases.  Schwartz v. Honeywell International Inc., No. 2016-1372, 2018 WL 793606, at *1 (Ohio 2018).

Some history is in order.  In Horton v. Harwick Chemical Corp., 653 N.E.2d 1196 (1995), the Supreme Court of Ohio rejected the frequency, regularity, and proximity test for substantial causation developed in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-1163 (4th Cir. 1986).  The Horton court criticized the Lohrmann test as “overly burdensome” for plaintiffs and “unnecessary.”  Id. at 1199. Continue reading “Ohio High Court Confirms Cumulative-Asbestos-Exposure Theory Cannot Establish Legal Causation”

WLF Webinar Speakers Critique Public-Nuisance Lawsuits

After long being a mere remnant of the old English common law, public nuisance has been experiencing an elongated renaissance. Courts have expanded the elastic doctrine into an all-purpose cause of action. As a result, lawsuits have alleged that everyday products such as paint, life-saving drugs, and pervasively regulated sources of carbon emissions are an unlawful nuisance. Richard Faulk of Davis Wright Tremaine LLP and Neil Merkl of Kelley Drye & Warren LLP traced this tort’s transformation, discussed its current applications, and explained why judges should curtail its growth.

The Powerpoint slides that accompanied their presentations are available here.