Civil Procedure Consumer Protection Products Liability

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Case Halted: California Court Denies Class Certification in Ford Defective Steering Case

On December 22, 2016, a federal District Court Judge in the Northern District of California denied certification of three proposed classes of statewide consumers who purchased or leased certain Ford Fusion or Ford Focus...more

False Labeling Lawsuits Get Hung Up On Faulty Damages Models

Food companies have several significant defenses to consumer fraud class actions over product labeling, say attorneys Joshua Briones and Crystal Lopez, and analyst Grace Rosales. The authors focus on damages, an area in which...more

Ninth Circuit and “Ascertainability”: No “Administratively Feasible” Method of Identifying Class Members Required

On January 3, 2017, the Ninth Circuit affirmed a district court’s decision to grant class certification, finding that, at the class certification stage, Rule 23 does not require plaintiffs to demonstrate that there is an...more

Ninth Circuit Revives “All Natural” Label Class Action, but Affirms Decertification of Damages Class

In an unpublished decision that is significant for both shoppers and consumer food companies, the Ninth Circuit recently reversed a district court’s ruling that the label “All Natural Fruit” is not likely to deceive...more

California Court Denies Stay of Consumer Class Action Challenging “Natural Cheese”

On December 6, 2016, United States District Judge John A. Kronstadt for the Central District of California denied a motion to stay a class action alleging violations of the UCL, FAL, and CLRA against Kraft Foods Group, Inc....more

Lipitor MDL Court Grants Pfizer’s Omnibus Summary Judgment Motion: No Evidence of Causation

For those of us who spend large chunks of our professional lives in mass tort MDLs, expressions like “settlement inventory” are ubiquitous. It is too easy to lose sight of the fact that these expressions put the rabbit in the...more

"The Class Action Chronicle - Winter 2016"

This is the 14th edition of The Class Action Chronicle, a quarterly publication that provides an analysis of recent class action trends, along with a summary of class certification and Class Action Fairness Act rulings issued...more

Briseno v. ConAgra Foods, Inc.: Ninth Circuit Rules That There Need Not Be An Administratively Feasible Way To Identify Class...

In Briseno v. ConAgra Foods, Inc., an opinion issued on January 3, 2017, the United States Court of Appeals for the Ninth Circuit held that Federal Rule of Civil Procedure 23 does not require plaintiffs challenging the...more

The Peaks – The Ten Best Prescription Drug/Medical Device Decisions of 2016

Today we’re going peak bagging – no, not to the Canadian Rockies or Patagonia (we leave that to Bexis) – for the high points in this year’s drug/medical device product liability jurisprudence. Last week, we visited the...more

Fraud on the FDA Doesn’t Fly Under the FCA Either

Ever since Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), held that state-law claims alleging fraud on the FDA are preempted, plaintiffs have been attempting to find some other way of bringing claims that...more

The Pits – The Worst Prescription Drug/Medical Device Decisions Of 2016

The “pits of hell,” “black as a pit,” a “bad feeling in the pit of my stomach” – that’s how we feel about 2016’s bottom ten decisions of the year arising from prescription medical product liability litigation. This year’s...more

Is the FSMA a plaintiff’s lawyer’s dream and the food industry’s nightmare?

The Food Safety Modernization Act (FSMA) became law in 2011, signaling a sea change in U.S. food safety regulation and making prevention the cornerstone of safety measures. To achieve its lofty goals, while providing time for...more

Heeding Presumption Only Goes So Far In Post-Sale Warning Case

Devoted as we are to the defense of manufacturers of prescription drugs and medical devices, we have often advocated for the full implication of the fundamental—to us, at least—requirements that warnings claims focus on the...more

A Gem on Alternative Design from a Pelvic Mesh MDL

We don’t write a lot on the various pelvic mesh MDLs in West Virginia because we are so heavily involved in two of them. But the MDL court entered an order last week on design defect and alternative design that we consider to...more

Rare Court Decision in CPSC-Backed Enforcement Action

A federal district court in Wisconsin recently ruled against a product manufacturer, finding it liable for failing to report timely in a rare U.S. Consumer Product Safety Commission (CPSC)-backed lawsuit. United States v....more

Anything Worthwhile For Product Liability Defendants In The 21st Century Cures Act?

We blogged about possibly interesting nuggets in the 21st Century Cures Act (“21CCA”) back in February, 2015 – when it was only 400 pages long. In true congressional fashion, it’s now twice as long and loaded up with enough...more

New actions based on ‘nothing artificial’ labels may be halted as FDA redefines ‘natural’

I previously wrote about Thornton v. Pinnacle Foods Group LLC, No. 4:16-CV-00158-JAR, in which the Eastern District of Missouri refused to dismiss a consumer fraud claim based on “nothing artificial” labels on boxes of Duncan...more

Amicus Briefs Not So Friendly to California Supreme Court’s Dreadful BMS Personal Jurisdiction Decision

We do a lot of grousing on this blog, but we acknowledge that there is much for which we should be thankful. This legal business permits us to keep our minds lively and our fingernails clean. Even the rotten decisions...more

Breaking: Court Rules Positively For CPSC In Federal Civil Penalty Case Against Spectrum Brands

We do not get many court decisions in the CPSC world, but yesterday we received one. Last evening, a Wisconsin federal district court essentially held in the Government’s case against Spectrum Brands, Inc. (Spectrum) that...more

Expansion of Liability in Product Labeling Cases

An unprecedented surge in consumer fraud lawsuits over the last several years has consumers and lawyers closely scrutinizing product labels and advertisements. While many of these claims challenge the veracity of “Organic,”...more

Missouri appellate court rejects ‘ingredient list’ defense in food labeling case

As Missouri’s reputation as a plaintiff-friendly venue increases, a state appellate court has dealt a blow to food manufacturers facing suits under the state’s consumer fraud statute regarding claims made on their products’...more

Industry custom evidence held admissible in CA product liability case based on defective design

A recent California appellate decision, Kim v. Toyota Motor Corp, if upheld by the California Supreme Court, could change the landscape in the admissibility of industry custom and practice evidence in strict products...more

AOPA Asks Supreme Court to Review Sikkelee Decision; Urges FAA Preemption

In a notable amicus curiae brief, the Aircraft Owners and Pilots Association (AOPA) has asked the U.S. Supreme Court to reverse a decision from the U.S. Court of Appeals for the Third Circuit (Third Circuit), which allowed...more

"The Class Action Chronicle - Fall 2016"

This is the 13th edition of The Class Action Chronicle, a quarterly publication that provides an analysis of recent class action trends, along with a summary of class certification and Class Action Fairness Act rulings issued...more

The Learned Intermediary Rule in Consumer Protection Claims

We recently posted about a new California decision that was notable, in part, because it applied the learned intermediary rule to often-asserted (and equally often abused) California consumer protection statutes. See Andren...more

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