Ninth Circuit to Hear Oral Argument in Pair of Food-Labeling Cases

9thCirToday, September 12, the United States Court of Appeals for the Ninth Circuit will hear oral arguments in two class-action food-labeling cases.  The issues before the court are similar and the cases arise from nearly identical facts: the plaintiffs allege that the defendants’ product labels are false or misleading in violation of various state laws because they claim to be “natural.”  The appeals will also be heard by the same panel—Judges Fletcher, Christen, and Friedland.  In considering these two appeals, the Ninth Circuit will have a chance to set a major precedent that could either reduce the flow of food-labeling suits into California-based federal courts or open the spigot even wider.

The similarities between the two cases, Brazil v. Dole Packaged Foods, LLC and Briseno v. ConAgra, Inc., are striking.  The plaintiffs filed putative class actions alleging that the defendants violated various statutory and common-law causes of action by labeling some of their products as “All Natural” or “100% Natural.”  Brazil claims that Dole’s use of “All Natural” on several of its juices’ labels is false or misleading because the company added ascorbic acid (vitamin C) and citric acid.  Both additives occur naturally in the juice products.  Similarly, Briseno claims that ConAgra’s “100% Natural” label is false or misleading because the Wesson Oil in question contains genetically modified organisms (GMOs). Continue reading

Fed Up Multidistrict Litigation Judge Reminds Plaintiffs’ Lawyers of His Sanction Authority

jpml“Enough is enough.”

That is how Judge Clay D. Land, Chief Judge of the US District Court for the Middle District of Georgia, concluded the first paragraph of a scathing five-page order in the multidistrict litigation (MDL) proceeding In re Mentor Corp. Obtape Transobturator Sling Products Liability Litigation. The September 7, 2016 order includes three-and-a-half pages of what Judge Clay himself labeled “Obiter Dictum.” For non-lawyers or those not fluent in Latin, obiter dictum is that part of a judicial opinion that is not necessary to the holding of the case.

Dicta it may be, but those three-and-a-half pages offer a spot-on critique of the MDL process by an experienced judge who has garnered significant criticism from defense-side lawyers for some of his pro-plaintiff rulings in the In re Mentor litigation. Continue reading

Court Pours Cold Water on Unreasonable Serving-Size Class Action vs. Starbucks

Warning: Includes Ice

Warning: Includes Ice

Since its inception in the spring of 2010, the WLF Legal Pulse has routinely cast aspersions upon (mostly California-based) class-action lawsuits alleging fraudulent food labeling and the shopping-cart-chasing lawyers who file them. The blog even has a tag devoted entirely to posts on these suits: Food Court.

Of all the lawsuits we’ve discussed here, few cases epitomize the absurdity of this litigation trend better than the recently decided Forouzesh v. Starbucks Corp. Filed not in the “Food Court” (aka the Northern District of California), but rather in the Central District of California, this suit alleged that Starbucks committed, among other wrongs, fraud, false advertising and breach of warranty by misrepresenting the specific number of ounces in an iced drink. In other words a “Grande” iced coffee or tea, which is 16 ounces, actually contains 12 ounces of coffee plus 4 ounces of ice. As reflected by the grainy photos of a Starbucks cup and a Pyrex bowl in the complaint, Forouzesh actually measured this out. He sought to represent a class of California Starbucks iced-drink purchasers and demanded compensatory and punitive damages, and injunctive relief. Continue reading

Will Illinois State AG’s Action Put an End to Unabashed Abuse of State’s False Claims Law?

package deliveryThis past May, a Cook County Associate Judge dismissed 201 Illinois False Claims Act (IFCA) cases at the request of Illinois Attorney General Lisa Madigan. The state’s action is an encouraging, albeit overdue, development in a long-running legal saga where one enterprising lawyer has harnessed the state’s enforcement power to pursue personal financial gain that provides little or no benefit to the public.

Much like its federal equivalent, the IFCA allows private citizens (relators) to file fraud claims on behalf of the state. The fraud must be based on a false claim, typically a violation of a law or regulation. If successful, relators can collect up to 30% of the award plus attorneys’ fees. Continue reading

Data-Breach Class Actions Feel the Effects of “Spokeo v. Robins”

supreme courtBy Jeryn Crabb, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law

With Spokeo v. Robins the US Supreme Court clarified the requirements necessary for plaintiffs to establish standing in federal court.  Federal district courts are only beginning to explore those parameters, but the early applications are generally encouraging in one key area: data-breach class-action litigation.

In Spokeo, Mr. Robins alleged that Spokeo, a “people search engine,” violated the Fair Credit Reporting Act by inaccurately reporting that he was married, employed, and in good financial standing.  The Court held that a plaintiff bringing suit under a federal law that defines a statutory violation as harm must allege the existence of a concrete and particularized injury in order to have standing to sue. Continue reading

Pfizer False Claims Victory May Embolden Other Pharma Defendants

By Todd Hobbs, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law

2nd CircuitIn May, the United States Court of Appeals for the Second Circuit upheld the dismissal of a qui tam lawsuit in U.S. ex rel. Polansky v. Pfizer, Inc.  Polansky, a former Pfizer Medical Director, brought suit under the federal False Claims Act (FCA) on behalf of the U.S. government. He alleged that Pfizer submitted a false claim for Medicare payment by illegally marketing its product for an off-label use.  The Second Circuit held that the complaint at issue failed to allege any off-label promotion and affirmed the district court’s dismissal on that basis.  Federal appeals courts have not considered many FCA lawsuits related to off-label marketing allegations, making the Polansky result worth closer review.

Continue reading

Side-stepping the Issue: Federal Judge Makes Unprecedented Move in Rejecting Google’s First Amendment Defense

first-amendmentBy Erin Garza, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law

Business success in America not only generates increased dividends for shareholders and opportunities for consumers, but it also, regrettably, attracts litigation. Take, for instance, the constant flow of lawsuits search-engine companies face from individuals and organizations unhappy with their placement in search results. Search-engine businesses have consistently prevailed in such suits, arguing that the First Amendment protects how they design and apply their search algorithms.

However, a May 12, 2016 federal district court decision, which rejected Google’s motion to dismiss and allowed a search-engine optimization firm’s lawsuit to proceed, departed from this positive First Amendment trend. Was the decision in E-Ventures Worldwide, LLC v. Google an aberration or has this plaintiff found a creative new way to avoid the First Amendment defense? Continue reading