Communications & Media Civil Procedure Products Liability

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The FDA Tiptoes – and Congress Splashes Into – the 21st Century

Here are a couple of non-litigation related matters that we thought our readers need to know about. First, the FDA. We’ve pointed out before that the FDA’s “intended use” regulations for drugs (21 C.F.R. §201.128) and...more

California Federal Court Is Unpersuaded By A Recent Fourth Circuit False Advertising Decision In Reconsidering Its Ruling On A...

The Honorable John A. Kronstadt for United States Federal District for the Central District of California, denied a Defendant’s motion to reconsider his previous ruling on a motion to dismiss based upon a subsequent Fourth...more

Lands’ End Requests Dismissal of “Made in U.S.A.” Class Action After Reimbursing Plaintiff

Last week, Lands’ End tried a second time to dismiss a “Made in U.S.A.” class action with the novel argument that, because the company had already reimbursed the plaintiff for the necktie she purchased, she is not injured and...more

Another Major Earthquake: California Creates Big Fissures in Proposition 65 Regulations – Proposals Could Shatter Defenses

In the midst of making Proposition 65’s longstanding warning regulations far more onerous, and vexatious litigation far more likely, California’s Office of Environmental Health Hazard Assessment (OEHHA) has unveiled still...more

A Handmade Dismissal for Maker’s Mark

A recent decision from the Southern District of California demonstrates the uphill battle consumer lawsuits face when challenging “handmade” or “handcrafted” labels on alcoholic beverages. On July 27, 2015, in Nowrouzi et...more

Putting A Lotion Claim In The Primary Jurisdiction Basket

When Jame Gumb urged his captive to put lotion on her skin, he was not concerned with improving its firmness. While Buffalo Bill from "Silence of the Lambs" may not be who most would think about when reading Franz v....more

Feel The Burn: Court of Appeal Strikes Down State Law Claims Regarding Mislabeled Sunscreen Products Under Finding of Federal...

In Eckler v. Neutrogena (certified for publication 7/1/15, Case No. B2536910), the California Court of Appeal, Second Appellate District, upheld the trial court’s determination that plaintiffs’ claims of mislabeling sunscreen...more

Ninth Circuit to False Advertising Class Actions: Drop Dead

On June 23, 2015, the Ninth Circuit in Cabral v. Supple LLC, — Fed. Appx. –, 2015 WL 3855142 (9th Cir. June 23, 2015) placed a significant hurdle in the path of false advertising class actions. Specifically, the Court held...more

Ninth Circuit Reverses Class Certification In Joint Supplement Case Because Not All Class Members Saw Misrepresentation

The Ninth Circuit has held that a district court abused its discretion in certifying a class based on allegedly false health claims because not all class members saw the advertising. The Ninth Circuit said that the trial...more

Skinnygirl Margarita Class Rejected Again: Proof Fell Below Third Circuit’s High Bar for Ascertainability

A New Jersey federal court ruled that plaintiffs once again failed to demonstrate the ascertainability of a class of purchasers seeking to challenge “all natural” claims by the makers of Skinnygirl Margarita. Stewart v. Beam...more

SG’s Latest Brief On Implied FDCA Preemption Under Buckman

On May 26, 2015, the Solicitor General’s office responded to the United States Supreme Court’s Oct. 14, 2014 invitation for the government’s views on the certiorari petition filed in Athena Cosmetics, Inc. v. Allergan, Inc.,...more

Consumer Class Actions Against Liquor Producers Follow Familiar Path

Plaintiffs’ class action attorneys tend to follow trends. They are a savvy breed of attorney, at once creative and lazy (or efficient, depending on one’s perspective). One attorney discovers a statute, claim, or industry, and...more

Weird "Science" = Preemption

Here at the DDL Blog, we write from time to time on food litigation. You might think it’s out of left field, and sometimes we even justify our food posts by pointing out that the “F” in FDCA stands for “Food.” But we need...more

Maker’s Mark Defeats “Handmade” Class Action Lawsuit

Could consumers have plausibly believed that one of the country’s top-selling bourbon brands is “handmade”? Not according to one federal district court in Florida, which recently dismissed a class action alleging Maker’s...more

Are We Becoming More Social?

It goes without saying that there’s been much attention given to the use of social media in litigation. As litigators, we regularly monitor Facebook, LinkedIn, Instagram and other social media networks to surveille those...more

Food and Beverage News and Trends

Judge rejects consumer claim concerning evaporated cane juice - On March 12, a US district judge in the Northern District of Illinois dismissed with prejudice a consumer lawsuit against the manufacturer of Healthy Grains...more

California Appellate Court Affirms Judgment in Favor of Food Company on Claims of Lead Exposure

In an important victory for defendants doing business in California, the California Court of Appeal recently affirmed a trial court’s decision holding that the defendants did not violate Proposition 65, California’s toxics...more

Plaintiff Gets Burned By Article III in Sunblock Class Action

Can a plaintiff sue in federal court for consumer fraud when he never purchased and never used the product? This is not a trick question, and the obvious answer is also the correct answer. No, he can’t. But the point...more

Spirits Industry Under Fire: What You Need to Know About Class Action Litigation

In this issue: - Where did these cases come from? - What are these cases about? - Who is driving these cases? - What are the Plaintiffs suing for? - Who is a likely target? - How can...more

Placement of Checkbox Can Make or Break a Clickwrap Agreement

The enforceability of a wrap agreement (browsewrap, clickwrap and shrinkwrap) can often turn on what to the untrained eye may be mere minutiae. Such minutiae can include the nuances of the design of a website. For example, in...more

California Appellate Court Takes on Proposition 65 Warning Triggers

Auburn Courthouse Prop 65Recent attempts to modify California’s Safe Drinking Water and Toxic Enforcement Act of 1986, Proposition 65, have been the work of the California Legislature. (See A Sane Tweak To Proposition 65 and...more

Appellate Court Gets It Right: Realistic Product Use Data Can Be Used by Businesses to Defend Lawsuits

California’s First District Court of Appeal issued a unanimous and potentially far-reaching and precedent-setting decision on March 17, 2015, siding with businesses in our defeat of a lawsuit that sought to require cancer and...more

Court Finds that Class Action Plaintiffs’ False Advertising Claims are Stripped Bayer Based on Federal Preemption

In the recent case of Gallagher v. Bayer AG, Case No. 14-cv-04601-WHO (N.D. Cal. March 10, 2015), the plaintiffs asserted that the defendants Bayer AG and related entities (collectively, “Bayer”) engaged in false advertising...more

First Circuit Finds Federal Preemption of State Tort Claims That Conflict With A Medication’s FDA-Approved Labeling & Warnings

An opinion issued by the U.S. Court of Appeals for the First Circuit on February 20, 2015 held that the Federal Food, Drug, and Cosmetic Act (“FDCA”) preempted claims that Lexapro’s U.S. Food and Drug Administration (FDA)...more

Statements Regarding Live Scientific Debate Still Subject to False Advertising Claim - Eastman Chemical Company v. PlastiPure,...

According to the U.S. Court of Appeals for the Fifth Circuit, even if scientific claims are the subject of live scientific debates, that status will not immunize such statements containing such claims from false advertising...more

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