Communications & Media Civil Procedure Products Liability

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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

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

“Slack Fill” Class Action Is Empty Space

We never heard the term “slack fill” before we started writing for this blog, but it seems to be getting a lot of attention lately. We enjoyed a podcast from NPR’s Planet Money the other day discussing slack fill in black...more

S.D. Cal. Shows No Love for Aphrodisiac Class Certification

A class action claiming that a diet supplement was falsely advertised as being an aphrodisiac cries out for bad jokes and silly puns. Are we above all that? Er… sure. The supplement is called IntenseX. (Get it? Why don’t...more

Product Liability Update: October 2016

Massachusetts Federal Court Dismisses Putative Class Action Because Defendant’s Unconditional Checks for Named Plaintiff’s Maximum Damages, Even Though Uncashed, Mooted Suit - In Demmler v. ACH Food Companies, Civil No....more

Another Reason Why Medical Device Class Actions Don’t Work

The Ninth Circuit filed a preemption opinion the other day that should help prevent the “foodification” of medical device litigation. That made-up word refers to the wasteful food-related class action litigation that has...more

2016 Updates to Ediscovery for Defendants Cheat Sheet

We’ve been remiss in updating our cheat sheet devoted to ediscovery for defendants. Because of the broad nature of the topic – these cases can and do arise in a wide variety of non-drug/device contexts – we have to research...more

Advertising Law - July 2016 #3

Wikipedia Link Trips up Ninth Circuit False Ad Suit - Ruling that a California federal court incorrectly relied upon a Wikipedia link when considering a summary judgment motion in a false advertising suit, the Ninth...more

Another Off-Label Promotion Third Party Payor Case Lacks Causation

July in D.C. is hot and sticky. When scorching day follows scorching day, area residents look forward to evening thunderstorms, not just to water otherwise thirsty lawns and gardens but to cool things down. Lightning can be...more

In Limine Gag Orders – Can We Play, Too?

Lately, we’ve seen some plaintiffs add gag order requests to their complement of in limine motions in advance of significant trials. Those of us who participated in the Bone Screw litigation remember plaintiffs attempting –...more

Can Plaintiffs Sue a “Celebrity Spokesperson”?

We’ve thought a lot about the various secondary entities that plaintiffs sometimes sue in prescription medical product liability litigation – such as sales reps, physicians, hospitals, pharmacies, distributors, and a number...more

A Tall Drink of Water: Ninth Circuit Affirms Dismissal of Costco VitaRain Class Action on Plausibility and Causation Grounds

On May 5, 2016, the Ninth Circuit affirmed a district court’s decision to dismiss, without leave to amend, a class action complaint alleging a violation of the Washington Consumer Protection Act against Costco for the...more

California Plaintiffs Say that Size Matters: Consumer Fraud Class Action Challenges Slack-Fill in Protein Products

According to named plaintiffs in a consumer fraud action filed in December in the Southern District of California, size matters when making it comes to making a purchase. In fact, Plaintiffs claim that the average consumer’s...more

Advertising Law - May 2016 #3

Fake Subscription Notices, Real FTC Lawsuit - Fake subscription notices are the subject of a new lawsuit filed by the Federal Trade Commission in an Oregon federal court. The defendants, a web of dozens of...more

Man Claims Marijuana Made Him A Killer: The Increasing Scope of Product Liability in the Cannabis Industry: Kirk v. Nutritional...

Like the rest of the manufacturing world, cannabis Industry participants are beginning to face product liability risk following the legalization of marijuana. Last week, three sons of a woman killed by their father during an...more

Preemption: Oregon Has Not Gone Bananas

Can you get sued over a picture of a banana? It seems the answer might depend on where you live and probably not in Oregon. That is one takeaway from a good preemption case that came out of the District of Oregon last week,...more

No Tea Time for Class Action Plaintiffs: Class Certification Denied for Bigelow Green and Black Tea Drinkers

Northern District of California Judge William Orrick recently denied class certification in two food misbranding class actions challenging antioxidant claims for Bigelow green and black teas. Khasin v. R.C Bigelow Inc., Case...more

TPPs Fail to Put Their Money Where Their (Litigation) Mouth Is and Lose

In third party payor litigation over prescription medical products, we have often marveled at the causation arguments that plaintiffs have offered and the willingness of some courts to accept collective proof over what really...more

Class Cert Denial Redux: Plaintiff’s “Manufactured” Standing Falls Short in Yakult Yogurt Action

A California federal district court recently denied a plaintiff’s second attempt to certify a class of Yakult consumers allegedly misled by Yakult’s packaging and advertising claims touting the health benefits of its yogurt,...more

MMPA Watch - Advertising Puffery Found Non-Actionable in Hurst v. Nissan

The Missouri Court of Appeals recently overturned a jury verdict under the Missouri Merchandising Practices Act (MMPA) against Nissan North America, Inc., arising out statements made by Nissan in the advertising and promotion...more

Passive Trademark Licensor Held Not Liable for Product Defect

Can merely licensing a trademark result in strict liability for injuries resulting from a product bearing the trademark? A decision earlier this month says no....more

Cut the Fat . . . Just Not Yet: Court Rules that PHO Claims Are Preempted

Northern District of California Judge Maxine Chesney recently granted Nestlé’s motion to dismiss a challenge to partially hydrogenated oil (PHO) in Nestlé’s Coffee-mate® coffee-creamer products, finding plaintiff’s claims...more

Ninth Circuit Revives Chobani Yogurt Action, But Puts Claims on Ice and Leaves Questions Unanswered

There has been much recent discussion of the primary jurisdiction doctrine, as well as stay motions based on the doctrine, related to FDA’s review of its evaporated cane juice (ECJ) draft guidance. Now, in its recent...more

The (Not So) Sweet Sound of FDA’s Silence: Judge Seeks Answers from FDA on ECJ Draft Guidance

We recently reported on developments in evaporated cane juice (ECJ) stays pending the FDA’s finalized guidance on the ingredient. In March 2014, FDA announced that it would revise its ECJ draft guidance, and many courts in...more

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