Show Me the Slack Fill: State’s Overly Pliable Consumer-Fraud Law Courts Dubious Litigation

raisnetsFood Court Follies—A WLF Legal Pulse Series

Litigation involving processed foods and other packaged goods has become so popular that cases are now routinely filed not only over what’s in the package, but also over what’s not in the package. Lawsuits over empty space, colloquially known as “slack-fill,” enrich plaintiffs’ lawyers while according little or no benefit to consumers. These lawyers have flocked to courts that have broadly interpreted already flexible consumer-protection laws. Targeted businesses have started to express their concerns, and elected officials are beginning to listen.

One state where reform is afoot is Missouri. A very recent federal court decision there in a slack-fill suit reflects why that state’s law is under reconsideration. Continue reading “Show Me the Slack Fill: State’s Overly Pliable Consumer-Fraud Law Courts Dubious Litigation”

Ohio High Court Confirms Cumulative-Asbestos-Exposure Theory Cannot Establish Legal Causation

RobertWrightFeatured Expert Contributor, Mass Torts—Asbestos

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

The Supreme Court of Ohio has held that a cumulative exposure theory, which posits that every nontrivial exposure to asbestos is a substantial factor in causing mesothelioma, does not satisfy the Ohio statute governing causation in asbestos cases.  Schwartz v. Honeywell International Inc., No. 2016-1372, 2018 WL 793606, at *1 (Ohio 2018).

Some history is in order.  In Horton v. Harwick Chemical Corp., 653 N.E.2d 1196 (1995), the Supreme Court of Ohio rejected the frequency, regularity, and proximity test for substantial causation developed in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-1163 (4th Cir. 1986).  The Horton court criticized the Lohrmann test as “overly burdensome” for plaintiffs and “unnecessary.”  Id. at 1199. Continue reading “Ohio High Court Confirms Cumulative-Asbestos-Exposure Theory Cannot Establish Legal Causation”

WLF Webinar Speakers Critique Public-Nuisance Lawsuits

After long being a mere remnant of the old English common law, public nuisance has been experiencing an elongated renaissance. Courts have expanded the elastic doctrine into an all-purpose cause of action. As a result, lawsuits have alleged that everyday products such as paint, life-saving drugs, and pervasively regulated sources of carbon emissions are an unlawful nuisance. Richard Faulk of Davis Wright Tremaine LLP and Neil Merkl of Kelley Drye & Warren LLP traced this tort’s transformation, discussed its current applications, and explained why judges should curtail its growth.

The Powerpoint slides that accompanied their presentations are available here.

Settlement of Lawyer-Driven “Merger Tax” Litigation Stumbles in New York

ny state courtsTo paraphrase an Oscar-winning song, it’s hard out there for a corporate merger.  In recent years, opportunistic plaintiffs’ attorneys have descended upon proposed mergers of publicly owned companies, filing lawsuits to delay the proceedings alleging that management breached its fiduciary duty to the shareholders.

But one look at the typical settlement demonstrates that these cases are almost always cash grabs for the attorneys while providing almost no benefit for the allegedly harmed shareholders.  The defendant usually agrees to “disclose” additional, trivial information about the merger, while paying the plaintiffs’ attorneys thousands of dollars in legal fees.  It comes as little surprise that these claims are colloquially known as “merger tax” suits, with the “tax” being the attorneys’ fees public corporations now feel obligated to pay any time they want to combine. Continue reading “Settlement of Lawyer-Driven “Merger Tax” Litigation Stumbles in New York”

“Big Coffee” Wins Another One in the Food Court

big coffeeFood Court Follies—A WLF Legal Pulse Series

Ed. Note: This is the first post for our blog by our newest Staff Attorney, Marc Robertson.

Without Jerry Seinfeld’s litigious (and fictional) attorney Jackie Chiles on the case, Siera Strumlauf and her co-plaintiffs did not stand a chance in California’s Food Court (the Northern District of California) in her “latte fraud” lawsuit. Judge Yvonne Gonzalez Rogers granted Starbucks’ motion for summary judgment in Strumlauf, et al. v. Starbucks Corp., holding the plaintiffs failed to raise a single triable issue of fact as to each of their eight claims.

Lead plaintiff Strumlauf alleged that Starbucks committed, among other wrongs, breach of express warranty, fraud, and false advertising by underfilling its lattes and mochas (collectively, “lattes”). If this case sounds familiar, it is because a little over a year ago the Central District of California dismissed a case alleging Starbucks misrepresented the specific number of ounces in an iced drink in Forouzesh v. Starbucks Corp. (discussed here). That argument failed, so it only made sense that the plaintiff (and her lawyers) raised the temperature in the fight against Starbucks. Continue reading ““Big Coffee” Wins Another One in the Food Court”

Textbook Application of “Obstacle” Preemption Negates Activists’ Organic Food-Labeling Suit

formulaFood Court Follies—A WLF Legal Pulse Series

Several of our recent commentaries (here and here) have extolled the virtues of national uniformity for the regulation of interstate commerce. Those posts focused on litigation involving federally regulated prescription drugs and devices. But state consumer-protection litigation poses an even greater threat to regulatory uniformity.

Federal preemption—the constitutional doctrine that state-law litigation targets regularly cite as a defense—has generally been an ineffective argument against consumer-protection suits, especially those alleging misleading or false labeling of food and other packaged goods. A January 3, 2018 federal trial court ruling, Organic Consumers Association v. Hain Celestial Group, Inc., is a welcome exception to that trend. It’s also notable for how clearly the court explained implied preemption and the broader principle of uniformity underlying the defense. Continue reading “Textbook Application of “Obstacle” Preemption Negates Activists’ Organic Food-Labeling Suit”

California Court Decision Offers Hope for Procedural Brake on Lawyer-Driven Class Actions

poolThis year’s rankings by civil-justice reform organizations (here and here) of states’ legal systems once again placed California near the bottom (or top, depending on how the listings are done) of the pack.  One of the California Supreme Court’s final decisions of 2017, which imposes liability on a pharmaceutical company for harm allegedly caused by a generic competitor’s copycat product, solidifies that hostile reputation going into a new year.

We write today, however, not to pile on (though we wholeheartedly share others’ California concerns), but to spotlight a December 4, 2017 California Court of Appeal ruling that is not only contrary to the state courts’ pro-litigation image but also bucks a national trend on a key class-action law issue. The question at issue in Noel v. Thrifty Payless, Inc. was whether a court can certify a class of plaintiffs when no objective method exists to ascertain who is or is not a class “member.” Continue reading “California Court Decision Offers Hope for Procedural Brake on Lawyer-Driven Class Actions”