Update: Another Instance of Drunk Suing Ushered Out of Court

fosters

A few months ago we blogged about a lawsuit where the plaintiffs alleged they were deceived by the “Hawaiian-ness” that Kona Brewing Company conveyed on their beer labels.  The case was emblematic of a series of suits alleging that because beers were seemingly marketed as “foreign,” but produced in a domestic location, the brewers tricked the public into making purchases.  In addition to Kona, the makers of Red Stripe, Sapporo, Kirin Ichiban, and Beck’s have all been dragged into court.

Luckily, those brewers who fought back have been winning.  As mentioned in that previous commentary, the makers of both Red Stripe and Sapporo successfully petitioned their respective courts to dismiss their plaintiffs’ cases.  We can now add Fosters to the list.  Because Fosters’ product labels specifically state that brewing occurred in Georgia and Texas, no consumer would reasonably believe that it was imported from Australia.

With defeats piling up, let’s hope that the plaintiffs’ attorneys behind these frivolous claims will put an end to their “drunk suing.”

FCA “Qui Tam” Relator Sanctioned for Lawyers’ Scheme to Manufacture Evidence

ethicsBy Bailey McGowan, a 2017 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

A double agent, an undercover operation, and deceit: No, these aren’t the well-worn plot elements of the latest James Bond movie. They are some of the tactics in a law firm’s scandalous attempt to manufacture the proof needed to survive a motion to dismiss in a False Claims Act (FCA) case, Leysock v. Forest Laboratories. The elaborate scheme exhibits the lengths to which deputized FCA plaintiffs and their lawyers will go to pursue their cut of a qui tam lawsuit’s routinely lucrative recovery. The federal court’s sanction for such behavior—barring the use of information fraudulently obtained in the plaintiff’s opposition motion—was an appropriate and laudable response, one that should embolden inspire other judges overseeing big-money litigation to take similar action against such blatant misconduct. Continue reading

Forum-Shopping Plaintiffs Take a Major Hit in US Supreme Court

supreme courtForum-shopping plaintiffs’ attorneys have long sought to file their claims against large businesses in jurisdictions with reputations for favoring plaintiffs—without regard to whether the claims actually arose in those jurisdictions.  They justify their assertions of personal jurisdiction in such cases by arguing that a company that does business nationwide should be amenable to suit in any State in which it conducts substantial business.  In its 2014 Daimler AG v. Bauman decision, the US Supreme Court called into serious question the validity of such venturesome assertions of jurisdiction.  The Court’s decision last week in Bristol-Myers Squibb Co. v. Superior Court may have put such claims entirely to rest. Continue reading

News Flash! Jelly Beans Contain Sugar—The Continuing Saga of Evaporated Cane Juice Litigation

mckenziy_printGuest Commentary

By Yvonne M. McKenzie, a Partner with Pepper Hamilton LLP in the firm’s Philadelphia, PA office, and Colleen Kelly, an Associate with the firm.

In February, plaintiffs filed a class-action lawsuit in California against candy maker Jelly Belly on behalf of consumers who purchased jelly beans marketed as “Sport Beans.” They claimed that Jelly Belly used the phrase “evaporated cane juice” (ECJ) in its ingredient labeling to mislead consumers about the amount of sugar in Sport Beans.

Jelly Belly markets the product to athletes seeking a jolt of “quick energy,” which is usually accomplished through ingesting sugar and carbohydrates. Far from masking its ingredients, the product labeling clearly states that Sport Beans contain 19 grams of sugar per serving. Despite this, the plaintiffs claimed that the term ECJ misled them into thinking that the product contained juice, not sugar. Never mind that juice itself typically contains sugar. Continue reading

From Sea to Shining Sea: The Ninth Circuit Aligns with the Second Circuit in Affirming “Omnicare” Decision’s Benefits for Securities-Suit Targets

greenedFinkelsteinGuest Commentary

By Doug Greene and Bret Finkelstein, a Partner and an Associate, respectively, with Lane Powell PC in the firm’s Seattle, WA office.

In a matter of first impression in the Ninth Circuit, the court applied the Supreme Court’s Omnicare standard for pleading the falsity of a statement of opinion in City of Dearborn Heights Act 345 Police & Fire Retirement System v. Align Technology, Inc., — F.3d —, 2017 WL 1753276 (9th Cir. May 5, 2017). The Ninth Circuit decision builds on the momentum for the defense bar following the 2016 Second Circuit opinion in Tongue v. Sanofi, 816 F.3d 199 (2d Cir. 2016), correctly applies the rationale of Omnicare to Section 10(b) cases, and applies the Omnicare falsity analysis to an important category of statements of opinion: accounting reserves.

The Supreme Court’s landmark 2015 decision, Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 135 S. Ct. 1318 (2015), was originally met with mixed reviews by securities litigators of all stripes. Some commentators—including members of the defense bar—raised alarm following Omnicare, worrying that the decision was a win for plaintiffs because they felt it created a new area of potential liability for statements of opinion that were honestly held, but nonetheless misleading. Continue reading

Preserved Shark Repellent: Pennsylvania’s Abuse-of-Process Law Withstands a Constitutional Challenge

Shark_as_part_of_a_law_office_sign

Source: WikiMedia Commons

By Hillary Hunter, a 2017 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering her third year at Texas Tech University School of Law in the fall.

Suppose while swimming through life, innocently enough you draw the attention of an aggressive lawyer. You did nothing wrong, but still find yourself being circled by a predator. Now, like a shark sensing blood in the water, suppose the lawyer goes in for a bite. He files a baseless lawsuit, one aimed at wearing down your resources and patience to the point where you will surrender and settle. As you do your best to keep your head above water, you consider your options. Is there any shark repellent around?

Victims of lawsuit abuse in some states, in fact, do have legislatively crafted tools at their disposal to fight back. For example, Pennsylvania’s Dragonetti Act recently survived a state constitutional separation–of–powers challenge. The Pennsylvania Supreme Court’s decision to uphold the law in Villani v. Seibert reflects the shared responsibility of the legislative and judicial branches to direct a state’s legal system and govern attorney conduct. Continue reading

Tuned in to the First Amendment: Court Upholds Satellite Radio’s Right to Choose Advertisers

sirius XMBusiness entities have endured increasingly strident criticism of their free speech rights in recent years. Thankfully, the US Supreme Court and most lower federal courts have declined to embrace critics’ ideologically-driven perspective that the First Amendment does not protect corporate speech. Such judicial respect for a business’s speech rights was recently on display in an unusual setting: a contract dispute between Sirius XM Radio and an advertiser. The court decision arising from that dispute, InfoStream Group v. Sirius XM Radio Inc., both demonstrates how the First Amendment can provide an effective defense and underscores the principle that not all speech by commercial enterprises is “commercial speech.” Continue reading