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 2019, Federal Appellate Courts Will Address Impact of SCOTUS Jurisdiction Ruling on Class Actions

DC CircuitSince the U.S. Supreme Court’s landmark decision in Bristol-Myers Squibb v. Superior Court (BMS), litigants and courts have struggled to determine its impact on future cases.  The Court held in BMS that courts may not exercise jurisdiction over nonresident defendants with respect to nonresident plaintiffs’ claims arising from conduct that occurred outside the State. This limits defendants’ exposure to nationwide mass-tort actions to States where they are “at home” and subject to that forum’s general personal jurisdiction.

Class actions are now at the forefront of the fight to define BMS. To date, no federal circuit court has considered whether BMS applies equally to class actions as it does to mass-tort actions. But several circuit courts will have the opportunity to resolve this question in 2019, quite possibly with differing results. A WLF Working Paper published in March 2018 framed the question these courts will have to answer as follows: If joinder of plaintiffs does not establish specific jurisdiction over the defendant for nonresident plaintiffs’ claims (as in BMS), can the result be any different when the nonresident plaintiffs are instead absent members of a class? Continue reading “In 2019, Federal Appellate Courts Will Address Impact of SCOTUS Jurisdiction Ruling on Class Actions”

Kimberly-Clark Seeks Supreme Court Review 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 November 30, 2018 in the firm’s Class Dismissed  blog.

On September 6, 2018, Kimberly-Clark and affiliates filed a petition for writ of certiorari in Kimberly-Clark, et al. v. Davidson, No. 18-304, following a decision in the Ninth Circuit denying Kimberly-Clark’s motion to dismiss.  As noted in previous posts (here and here), the Ninth Circuit had resolved a split among district courts in the circuit and held that a previously deceived consumer may have standing to seek an injunction against false advertising or labeling if he or she sufficiently alleges intent to repurchase the product in the future.  In Kimberly-Clark’s petition, the companies ask the Supreme Court to resolve the issue of whether a consumer, who after using a product and determining that a representation concerning that product is allegedly misleading, can plausibly allege a “real and immediate threat” that she will be deceived by the same representation in the future so as to establish standing to seek an injunction. Continue reading “Kimberly-Clark Seeks Supreme Court Review in “Flushable” Wipes Case”

Florida Supreme Court Rejects Legislative Adoption of Daubert Standard for Expert Testimony

Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

 

Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Matthew Waring, an Associate with the firm.

For a printer-friendly PDf of this post click here.

The reliability standard that the Supreme Court articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc. is generally considered the touchstone for determining whether expert testimony is admissible in court. But although all federal courts (and most state courts) follow Daubert, a handful of states still adhere to the much older Frye standard, which looks to whether a scientific technique is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”

In 2013, it appeared that Florida—one of these holdout states—had finally joined the ranks of Daubert jurisdictions when the Florida Legislature enacted legislation amending the Florida Rules of Evidence to incorporate the Daubert standard. But last month, in DeLisle v. Crane Co., the Supreme Court of Florida held that the legislature acted unconstitutionally, thwarting—at least for now—Florida’s entry into the league of Daubert jurisdictions. Continue reading “Florida Supreme Court Rejects Legislative Adoption of Daubert Standard for Expert Testimony”

The Government’s Duty to Preserve Evidence in a Non-Intervened “Qui Tam” Case

Stephen_Wood_03032014Featured Expert Contributor, False Claims Act

Stephen A. Wood, Chuhak & Tecson, P.C.

For a printer-friendly PDF of this post, click here.

Every civil litigator and trial lawyer knows (or should know) that a party to litigation has a duty to preserve evidence and documents for use in discovery and trial.  The rule applies to all litigants, whether public or private entities or persons.  It may even be applied to non-parties in certain circumstances, although typically non-parties face more limited obligations.

The False Claims Act qui tam provisions present a unique set of challenges bearing on the government’s duty to preserve.  Qui tam complaints are filed under seal to facilitate the government’s investigation after which it may elect to take the case over.  When it declines to intervene in the qui tam case, the government typically considers itself to be a non-party, eschewing any duty to preserve evidence.  Yet, for many reasons, the government should be treated as a party for purposes of the duty to preserve evidence in those cases in which it has declined to intervene.  And in the face of a breach of that duty, both the government and the qui tam relator should face the prospect of sanctions as the circumstances warrant. Continue reading “The Government’s Duty to Preserve Evidence in a Non-Intervened “Qui Tam” Case”

Finally Fed Up with Private Plaintiffs Litigating over Empty Space, California Amends Slack Fill Law

Guest Commentary

By Robert S. Niemann, a Partner with Keller and Heckman LLP in the firm’s San Francisco, CA office, and Jill M. Mahoney, an Associate in the firm’s Washington, DC office.

Editor’s note: This blog is an update to the February 2, 2018 WLF Legal Backgrounder, “Litigating over Empty Space: Public and Private Plaintiffs Target Consumer Class Actions at “Slack Fill.”

Defendants of would-be “slack fill”1 lawsuits may have found some reprieve from litigation in California. On September 19, 2018, California Governor Jerry Brown signed into law Assembly Bill 2632, which amends the state’s slack fill law2 to provide manufacturers facing nonfunctional slack fill allegations with additional safe harbors. While specious slack fill lawsuits have been on the rise in recent years, the amendment is a step forward for the food manufacturing industry and demonstrates that California, the home to many slack fill suits,3 may also be growing tired of such claims. Continue reading “Finally Fed Up with Private Plaintiffs Litigating over Empty Space, California Amends Slack Fill Law”

New Jersey Supreme Court Adopts Daubert (More or Less) for Civil Cases

Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Surya Kundu, an Associate with the firm.

For a printer-friendly PDF of this post, click here.

Although regarded by many as a relatively plaintiff-friendly court, the New Jersey Supreme Court recently bucked the stereotype by largely adopting Daubert for civil cases.  The court’s decision in In re: Accutane Litigation is a behemoth, weighing in at 85 pages (not including the syllabus), but the background and outcome are pretty straightforward. Continue reading “New Jersey Supreme Court Adopts Daubert (More or Less) for Civil Cases”