Food Court Follies: Misled-By-Maple Class Action Against Quaker Oats Preempted

maple and brown sugarIn all the blogging we’ve done on food-related consumer-protection litigation over the past five years, we’ve said very little about one of our favorite federal constitutional doctrines, federal preemption. That’s because the Food Court Bar has filed the vast majority of its claims in California, which has a statute, the Sherman Food, Drug, and Cosmetic Law, that explicitly incorporates all federal food laws and regulations. Plaintiffs’ lawyers have been able to defeat most preemption arguments by asserting Sherman Act violations, remedies for which would impose the same requirements as would federal law. Preemption defenses can prevail only when state law (or a state court decision) imposes obligations in conflict with federal law.

But in a series of recent suits against Quaker Oats Company, plaintiffs’ lawyers took a shot at imposing controls on oatmeal-product labeling that went beyond what federal rules required. Perhaps they thought the Central District of California would give them a pass, or that they could convince the court through some legal slight-of-hand. Judge Philip S. Gutierrez, who is presiding over the consolidated class actions, wasn’t buying it, however. On October 10, 2017, he dismissed the plaintiffs’ claims as preempted by federal law. In re Quaker Oats Maple & Brown Sugar Instant Oatmeal Litigation. Continue reading “Food Court Follies: Misled-By-Maple Class Action Against Quaker Oats Preempted”

Federal Judicial Advisory Panel to Assess Multidistrict Litigation Rules Proposals

US courtsAccording to a November 8, 2017 National Law Journal article, the chairman of the Judicial Conference Advisory Committee on Rules of Civil Procedure “suggested creating a subcommittee to take up a package of proposals to amend multidistrict litigation procedures” at a meeting this week. The article noted that the Advisory Committee had received a number of requests for rulemaking on the subject.

Lawyers for Civil Justice (LCJ) submitted one of the requests, asking the Advisory Committee to amend selected Rules to adapt their application to cases consolidated for pre-trial proceedings. Washington Legal Foundation wrote to the Advisory Committee in late September, supporting LCJ’s rulemaking request and attaching two recent WLF publications (read them here and here) that positively underscore the unique challenges and pitfalls posed by multidistrict litigation.

The Advisory Committee’s subcommittee will be undertaking challenging and important work, and we commend the Committee for its response to the request made by LCJ and other organizations.

Update: Plaintiffs in Subway Not-Foot-Long Class Action Throw in the Napkin

1ftIn September WLF’s Cory Andrews applauded the U.S. Court of Appeals for the Seventh Circuit’s rejection of a settlement of a consumer-fraud class-action suit against Subway. The suit alleged that not all Subway foot-long sandwiches measured a full 12″. The WLF Legal Pulse post did note, however, that on the basis of “new” information from an employee of one of Subway’s vendors, the plaintiffs refiled their suit in a Wisconsin federal court after the appeals court’s dismissal.

We learned today, thanks to the Institute for Legal Reform (ILR) (which kindly referenced our September post) and the Legal Newsline story ILR referenced, that the plaintiffs voluntarily dismissed their suit late last month. Not surprisingly, the plaintiffs’ quiet surrender garnered substantially less attention than the filing of their original lawsuit in 2013.

Court Order Imposing $9 Million Sanction Paints Sordid Tale of Ethically-Challenged Lawyering

middle districtThe lure of easy money, as the late Glen Frey once sang, has a very strong appeal. It routinely inspires less-than-ethical behavior from those who pursue it. Lawyers are certainly no exception, as a recent investigation and resulting federal court sanctions order reflects. The October 18, 2017 opinion, weighing in at 148 pages, is a meticulously detailed indictment of two attorneys’ abusive pursuit of easy money from the never-ending Florida tobacco litigation.

The sordid tale’s roots trace back to the disastrous 2006 Florida Supreme Court decision, Engle v. Liggett Group. This per curiam (i.e. unsigned) opinion decertified a class of 700,000 smokers. It also held that a generic conclusion reached by the initial Engle jury—that cigarettes are defectively designed and unreasonably dangerous—would have preclusive effect in all future, individual lawsuits filed by the decertified class of Florida smokers. Continue reading “Court Order Imposing $9 Million Sanction Paints Sordid Tale of Ethically-Challenged Lawyering”

Trial Judge Tosses Jury Verdict in Talcum Powder Mass-Tort Suit for Lack of Causation

RobertWrightFeatured Expert Contributor, Mass Torts—Asbestos

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

In a case that has generated national publicity, Judge Maren E. Nelson of the Los Angeles County Superior Court granted Johnson & Johnson’s motion for judgment notwithstanding the verdict after a jury awarded plaintiff $417 million, including $347 million in punitive damages, in a case alleging injury from exposure to talc.  (See Johnson & Johnson Talcum Powder Cases, Los Angeles County Superior Court, Case No. BC628228, JCCP No. 4872, Oct. 20, 2017 Order.)

The trial court’s order is significant in several respects, but in particular because it rejects plaintiff’s attempt to establish causation based on epidemiologic studies that do not show a relative risk of at least 2.0 for the specific cancer alleged by plaintiff. Continue reading “Trial Judge Tosses Jury Verdict in Talcum Powder Mass-Tort Suit for Lack of Causation”

Eighth Circuit Finds Standing, but Ultimately Rejects Claims, in Data-Breach Suit

Cruz-Alvarez_F

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.

On August 21, 2017, the U.S. Court of Appeals for the Eighth Circuit, in Kuhns v. Scottrade, Inc., 868 F.3d 711 (8th Cir. 2017), affirmed the district court’s dismissal of a consolidated class action complaint.  The Eighth Circuit disagreed with the district court and held that the plaintiff had Article III standing for the contract-related claims, but nonetheless affirmed the dismissal of the complaint because it failed to state a claim upon which relief could be granted. Continue reading “Eighth Circuit Finds Standing, but Ultimately Rejects Claims, in Data-Breach Suit”

SCOTUS Seeks Solicitor General’s Views on Apple’s Cert. Petition in Antitrust Suit

app storeIn an orders list issued today, the U.S Supreme Court invited the Solicitor General of the United States to file a brief expressing the federal government’s views on the petition for certiorari in Apple, Inc. v. Pepper. The case, in which Washington Legal Foundation filed an amicus brief supporting Apple’s request for review, involves a forty-year old Supreme Court doctrine dictating that only direct purchasers of good or services may file private enforcement actions under federal antitrust laws.

The Court occasionally seeks the federal government’s views on a petition for certiorari in cases in which the government is not directly involved, but that implicate significant federal interests. In Supreme Court-speak, this is known as a CVSG: Calling for the Views of the Solicitor General. Continue reading “SCOTUS Seeks Solicitor General’s Views on Apple’s Cert. Petition in Antitrust Suit”