Third Circuit Builds on Post-Spokeo “Bare Procedural Violation” Standing Jurisprudence

Featured Expert Contributor—Civil Justice/Class Actions

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

On March 8, 2019, the U.S. Court of Appeals for the Third Circuit, in Kamal v. J. Crew Grp., Inc., et al., ___F.3d___, 2019 WL 1087350 (3d Cir. Mar. 8, 2019), affirmed the U.S. District Court for the District of New Jersey’s judgment that plaintiffs’ putative class complaint failed to properly assert Article III standing under the guidelines established by Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Spokeo I).  In so holding, the Third Circuit joined its sister courts from the Second, Eighth, and Ninth Circuits in establishing that alleged procedural violations do not create Article III standing unless “the violation actually harms or presents a material risk of harm to the underlying concrete interest.”  Kamal, 2019 WL 1087350, at *17.  

In Kamal, the putative class alleges that J. Crew Group, Inc. (“J. Crew”) violated provisions of the Fair and Accurate Credit Transactions Act of 2003 (“FACTA” or the “Act”), 15 U.S.C. § 16801c(g), when it printed receipts showing the first six and last four digits of plaintiffs’ credit card numbers.  Kamal, 2019 WL 1087350, at *3.  In addition to the bare statutory violation, the putative class alleges that the offending receipts put them at an increased risk of identity theft. Continue reading “Third Circuit Builds on Post-Spokeo “Bare Procedural Violation” Standing Jurisprudence”

Update: Second Circuit Affirms Dismissal of “Diet Sodas Cause Weight Gain” Class Action

diet pepsiLast May on the eve of Memorial Day, we wrote about a Southern District of New York decision dismissing a class action against Pepsi-Cola. On Friday, March 15, a three-judge panel of the U.S. Court of Appeals for the Second Circuit issued a Summary Order (which has no precedential value) affirming the lower court’s decision.

The plaintiff in Manuel v. Pepsi-Cola Co. alleged that a reasonable consumer would conclude that the use of the term “diet” in Diet Pepsi meant that the beverage assisted in weight loss. Because the non-nutritive sweeteners Pepsi used as substitutes for sugar led to weight gain, the plaintiffs argued, use of the term “diet” was misleading in violation of state consumer-protection laws. The trial court held that no reasonable consumer would interpret “diet” in “Diet Pepsi” in the same manner as the plaintiff argued it meant. In addition, the court found that the studies the plaintiff cited in support of her claim that sugar substitutes caused weigh gain in fact offered no such support.

The Second Circuit concluded that even if a reasonable consumer would interpret the “diet” in Diet Pepsi to mean consumption=weight loss, the studies the plaintiff cited did not establish a causal relationship between sugar substitutes and weight gain “to a degree that is sufficiently strong.” The appeals court also affirmed the lower court’s decision to dismiss Manuel’s complaint with prejudice.

 

This Justin: Timberlake Out of Suit but False-Labeling Action against Bai Beverage Mostly Survives

bai-brasilia-blueberry-202x4841Here at the WLF Legal Pulse, we routinely discuss class-action lawsuits filed against consumer-product makers, especially those who manufacture packaged foods. Plaintiffs’ lawyers have been clogging the aisles of grocery stores for years dissecting food labels for any possible regulatory misstep and perhaps signing up new clients in the process. We could write far more often on this subject, but frankly it’s increasingly difficult to find a decision that breaks new ground or a suit that is uniquely ridiculous. One recent decision was irresistible, however.

The Southern District of California’s March 7, 2019 decision in Branca v. Bai Brands LLC seems like a run-of-the-mill “your product isn’t completely natural” claim. It wasn’t the debate over whether the malic acid in Bai beverages is natural or artificial (though that is perversely interesting) that intrigued us, but the court’s personal-jurisdiction determinations. And Justin Timberlake. Plaintiff Kevin Branca sued Timberlake, a Bai investor, as well as Dr. Pepper Snapple Group CEO Larry Young and former Bai CEO Ben Weiss (Dr. Pepper ousted him when it bought Bai), individually. Continue reading “This Justin: Timberlake Out of Suit but False-Labeling Action against Bai Beverage Mostly Survives”

Children’s Crusade for Judicially Managed Climate Regulation Stalls in Federal Court

EDPAOne act in the nationwide climate-litigation sideshow recently got the proverbial hook from a Pennsylvania-based federal judge. From chambers that are fittingly just around the corner from Independence Hall in Philadelphia, Judge Paul S. Diamond refused to “make the Executive a subsidiary of the Judiciary,” which is exactly what the plaintiffs in Clean Air Council, et al. v. United States sought.

Over the past ten years, plaintiffs’ lawyers, environmental activists, and government officials have filed many forests-worth of legal complaints featuring page after page of alarming rhetoric alleging acts and omissions that cause climate change. The suits target both the federal government and private businesses. Plaintiffs have included a coastal Alaskan village, the state of Rhode Island, New York City, and the Boulder County Board of Commissioners. Continue reading “Children’s Crusade for Judicially Managed Climate Regulation Stalls in Federal Court”

Class-Action Lawyers Invoke Novel Doctrine to Avoid SCOTUS Jurisdiction Rulings

supreme courtCivil litigation is waged through a series of small battles between plaintiff’s and defendant’s counsel. One initial battle, which can be outcome-determinative, involves where suit can be filed. Plaintiffs’ lawyers want to be in courts in which “friendly” judges preside, while defense counsel want no part of such jurisdictions. U.S. Supreme Court decisions from the past five years, such as Bristol-Myers Squibb v. Superior Court (BMS), have thrown a monkey wrench into plaintiffs’ lawyers’ jurisdiction battle plans. But without fail, plaintiffs’ lawyers, and particularly those who specialize in class actions, devise new arguments. They have argued, with mixed results in the lower courts, that precedents such as BMS don’t dictate jurisdiction for nationwide class actions. Some class-action lawyers are also relying on a rarely used federal common law doctrine—“pendent personal jurisdiction.” Continue reading “Class-Action Lawyers Invoke Novel Doctrine to Avoid SCOTUS Jurisdiction Rulings”

NJ Supreme Court to Decide Whether Third-Party Manufacturers Have Duty to Warn of Asbestos Exposure

Featured Expert Contributor, Mass Torts—Asbestos

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

In Whelan v. Armstrong International, the New Jersey Supreme Court has agreed to hear an appeal that will decide a manufacturer’s liability for asbestos-containing replacement parts that it did not manufacture or sell.  The Supreme Court granted certification after the Superior Court, Appellate Division, held that a manufacturer has a duty to warn of risks not just from the products it manufactures or sells, but also from asbestos-containing replacement parts necessary for its products to function.  Whelan v. Armstrong International, 190 A.3d 1090 (2018). Continue reading “NJ Supreme Court to Decide Whether Third-Party Manufacturers Have Duty to Warn of Asbestos Exposure”

Food-Labeling Suit’s Successful Class Certification is Cause for Concern in California

Featured Expert Contributor—Civil Justice/Class Actions

Frank Cruz-Alvarez, Shook, Hardy & Bacon L.L.P., with Rachel Forman, Shook, Hardy & Bacon L.L.P.

California is broadening the legal landscape of food-labeling class actions to the dismay of the food and beverage industry.  The Southern District of California in Hilsley v. Ocean Spray Cranberries, Inc. et al. has thrown the doors open for class certification in food-labeling cases.  The court issued an opinion partially certifying a class of consumers consisting of California citizens who purchased one of various Ocean Spray Cranberries, Inc. (“Ocean Spray”) products, such as Ocean Spray Cran Apple or Cran Raspberry, that contain labels which state, “‘No . . . artificial flavors’ when in fact the products contain artificial flavoring chemicals that simulate the advertised fruit flavors.”  Id. at “2. Continue reading “Food-Labeling Suit’s Successful Class Certification is Cause for Concern in California”