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”

Federal Courts, State Governments Push Back Against Corrosive Disabilities Act Suits

sharkCongress passed the Americans with Disabilities Act (ADA) in 1990 to provide important protections for some of the most vulnerable Americans.  Like other federal anti-discrimination laws, the ADA included a private right of action.  And as has happened with many other laws that can be privately enforced, the ADA has seen its share of questionable lawsuits during its nearly three-decade history.

In recent years, the trickle of lawsuits has grown into a flood, with scores of actions alleging what are at best novel interpretations of the law and at worst blatantly baseless “drive-by” claims that seek a quick buck.  Thankfully, courts are increasingly skeptical of plaintiffs’ lawyers’ attempts to broaden the ADA, and elected officials in some states are pushing back against legal shakedowns of small businesses. Continue reading “Federal Courts, State Governments Push Back Against Corrosive Disabilities Act Suits”

The Latest on ALI’s Liability Insurance Restatement: Same as it Ever Was

scales of justiceWhen last we addressed the American Law Institute’s (ALI) proposed Restatement, Law of Liability Insurance, we reported that the organization decided at its May annual meeting to table final consideration of the document until 2018. One of the proposal’s chief Reporters, Professor Tom Baker, indicated that he and co-Reporter Kyle Logue would embark on a year-long listening tour and consider what they heard when looking anew at the Restatement draft.

It is quite curious then, considering Professor Baker’s statement as well as ALI’s declaration that the draft needed “another year of work,” that on August 4, the institute released Preliminary Draft No. 4—a mere 10 weeks after tabling Draft No. 3 at its meeting.  Even more remarkable are the fundamental similarities between the draft tabled on May 23 and the one released on August 4.

ALI’s haste in issuing another draft, and the Reporters’ obstinate refusal to address valid criticisms of Draft No. 3, are further evidence of an accelerating mission drift that could cause the legal community to lose respect for organization’s work. Continue reading “The Latest on ALI’s Liability Insurance Restatement: Same as it Ever Was”

Court Ruling in Pharma Case Calls into Question Consumer Expectations Test’s Use in Asbestos Suits

Featured Expert Contributor, Mass Torts—Asbestos

RobertWright

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

A recent appellate decision rejecting the consumer expectations test for strict liability in a pharmaceutical case calls into question the use of that same test in cases involving low-dose exposures to asbestos.  Trejo v. Johnson & Johnson, 13 Cal. App. 5th 110, 117 (2017), petition for review filed, (Aug. 8, 2017) (No. S243672).

Much like in pharmaceutical cases, the trials in low-dose asbestos cases invariably center on competing expert-opinion testimony regarding scientific matters beyond the everyday experience of ordinary consumers.  As a result, such cases should proceed not under a consumer expectations theory, but instead under the alternative risk-benefit theory, which is recognized in many states and has long been applied to hold that a product is defectively designed if “‘the benefits of the challenged design outweigh the risk of danger inherent in such design.’”  Tabieros v. Clark Equipment Co., 944 P.2d 1279, 1310 (Haw. 1997), quoting Barker v. Lull Engineering Co., 20 Cal. 3d 413, 455-56 (1978); see, e.g., Lamkin v. Towner, 563 N.E.2d 449, 457 (1990) (applying Barker). Continue reading “Court Ruling in Pharma Case Calls into Question Consumer Expectations Test’s Use in Asbestos Suits”

Rejection of Subway “Footlong” Settlement Highlights Absurd Incentives of Class Actions

1ftIn early 2013, when Australian teenager Matt Corby took to social media to share a photo of his recently purchased Subway “foot long” sandwich next to a tape measure revealing that the sandwich measured only 11 inches in length, he never could have anticipated the “viral” chain of events that he had just set into motion.

Other Subway customers and media outlets soon descended on Subway franchises to undertake their own sandwich measurements, prompting the New York Post to announce that “Some Subway ‘Footlong’ Subs Don’t Measure Up.”   According to the Post, four out of seven footlong sandwiches randomly purchased at Subway restaurants in Manhattan, Brooklyn, and Queens measured less than 12 inches in length (ranging from 11 to 11.5 inches). Continue reading “Rejection of Subway “Footlong” Settlement Highlights Absurd Incentives of Class Actions”