WTK Connect
This blog provides updates and important insights about products liability, commercial, and consumer litigation. It aims to educate our audience on the developments in these areas as well as to provide the audience with unique perspectives from seasoned defense attorneys. ______________________________________________________________________________________________________________________
- Central District Of California’s Local Rule 23-3 Remains In Current Version Of Local Rules Despite The Ninth Circuit’s Explicit Rejection Of Bright-Line Rule
Jan 29, 2019 | Posted by Kirsten F. Gallacher | Topic: Class Actions
Certain district courts, such as the Central District of California, have local rules with strict filing deadlines for motions for class certification in order to streamline class actions pending in the district. Local Rule 23-3 provides that “[w]ithin 90 days after service of a pleading to commence a class action . . . the proponent of the class shall file a motion for class certification that the action is maintainable as a class action, unless otherwise ordered by the Court.” C.D. Cal. L.R. 23-3.
Continue reading... - District Court Holds Text Messages Sent As Part Of Ongoing Business Transaction With The Plaintiff Are Not Advertising Or Telemarketing Under The TCPA
Jan 29, 2019 | Posted by Kirsten F. Gallacher | Topics: Telephone Consumer Protection Act, Class Actions
In An Phan v. Agoda Company Pte. Ltd., No. 16-CV-07243-BLF, --- F. Supp. 3d ----, 2018 WL 6591800 (N.D. Cal., Dec. 13, 2018),[1] the district court granted summary judgment for the defendant upon holding that text messages sent from the defendant to the plaintiff were merely transactional—i.e., did not contain advertising or telemarketing—and thus were not subject to the heighted standard requiring prior express written consent.
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[1] This decision was appealed to the Ninth Circuit on January 4, 2019.
- The Ninth Circuit’s Decision Not to Rehear Panel’s Decision That Evidence Need Not Be Admissible At Class Certification, Gives Rise to a Fiery Dissent Criticizing the Decision
Nov 30, 2018 | Posted by Kirsten F. Gallacher | Topic: Class Actions
Earlier this year, the Ninth Circuit issued a decision in Sali v. Corona Regional Medical Center, 889 F.3d 623 (9th Cir. 2018), holding that because the class certification order is “preliminary” and can be entered at an early stage of the litigation, a motion for class certification need not be supported by admissible evidence.
Continue reading... - The Supreme Court Will Address Whether District Courts Are Required to Accept the FCC’s Legal Interpretation of the TCPA, Which Will Likely Have Huge Ramifications on TCPA Litigation
Nov 30, 2018 | Posted by Kirsten F. Gallacher | Topics: Class Actions, Telephone Consumer Protection Act
On November 13, 2018, the United States Supreme Court granted in part a petition for a writ of certiorari of the Fourth Circuit’s decision in Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 883 F.3d 459 (4th Cir. 2018). The specific question before the Supreme Court is “[w]hether the Hobbs Act required the district court in this case to accept the FCC’s legal interpretation of the Telephone Consumer Protection Act.”
Continue reading... - Proctor & Gamble Cannot Stop Class Action Over “Natural” Herbal Essences Advertisements
Oct 31, 2018 | Posted by James P. Leonard | Topic: Class Actions
On October 24, 2018, the U.S. District Court for the Eastern District of California held that the majority of false advertising claims made by a class of Plaintiff’s over hair products labeled as “Wild Naturals” against Proctor & Gamble (“P&G”) could go forward.
Continue reading... - TCPA Settlement Denied Due to Attorney Fees Inconsistent with Plaintiff’s “Relative Lack of Success”
Oct 31, 2018 | Posted by James P. Leonard | Topics: Class Actions, Telephone Consumer Protection Act
An Illinois federal judge recently denied a proposed settlement in a series of three TCPA cases known as the Ocwen cases essentially because the amount request for attorney fees—over 5.2 million—was too high, given class counsel’s “relative lack of success.”An Illinois federal judge recently denied a proposed settlement in a series of three TCPA cases known as the Ocwen cases essentially because the amount request for attorney fees—over $5.2 million—was too high, given class counsel’s “relative lack of success.”
Continue reading... - Warranty Woes: Judge Dismisses Class Action Involving Changes to L.L. Bean’s Return Policy
Sep 27, 2018 | Topics: Warranty, Class Actions
A California District Court granted a motion to dismiss a putative class action that alleged L.L. Bean—a company long-known for its 100% Satisfaction Guarantee and corresponding lifetime warranty—violated various statutes, including the Magnuson Moss Warranty Act, when the retailer changed its return policy in February 2018. Specifically, the retailer changed its lifetime warranty to a one-year return policy that requires proof of purchase. The new return policy also excludes from coverage products that have been misused, improperly cared for, or that exhibited “excessive wear and tear.”
Continue reading... - Winning the War on Allegedly Defective Products with Evidence of Industry Custom and Practice
Sep 27, 2018 | Posted by Robert K. Dixon | Topics: Automotive, Product Liability, Class Actions
The California Supreme Court recently ruled that manufacturers may present industry custom-and-practice evidence for certain purposes in strict products liability actions involving design defect claims. While the Court’s ultimate decision is a little convoluted, it can be summarized as follows: Evidence that a manufacturer’s design conforms with industry custom and practice is not admissible to show that the manufacturer acted reasonably in adopting a challenged design. However, such evidence is admissible to help the jury to determine “whether the product is as safely designed as it should be, considering the feasibility and cost of alternative designs.”
Continue reading... - Car Company Fends Off Class Certification, But the Case is Far from Over
Aug 30, 2018 | Posted by Parada K. Ornelas | Topics: Class Actions, Warranty, Automotive
The U.S. District Court for the Southern District of California denied Plaintiff’s request to certify a class action against FCA US LLC (“Defendant”) based on alleged clutch system defects with the Dodge Dart, because Plaintiff failed to satisfy the requirements of Rule 23(b). In particular, Plaintiff failed to meet “the initial burden of demonstrating that due process is satisfied for purposes of a nationwide class” and “cannot demonstrate that common issues predominate over the different questions posed by each state’s law.”
Continue reading... - Plaintiffs’ Class Action Rat Race Comes To An End
Jul 31, 2018 | Topics: Class Actions, Automotive, Warranty
Toyota finally scores a knockout after the fourth amended complaint in a class action involving allegations that Toyota sold vehicles with soy-coated wires that attract rodents, was dismissed with prejudice. In Heber v. Toyota Motor Sales U.S.A., Inc., et al., 21 plaintiffs, proceeding on behalf of themselves and the class, alleged 69 claims for relief under the laws of numerous jurisdictions including causes of action for violations of the Magnuson-Moss Warranty Act, breach of express warranty, breach of implied warranty, fraud, and unjust enrichment, alleging that the soybean covered wiring in certain Toyota vehicles was defective because it attracted rodents to gnaw on it, causing damage to the vehicles and increasing the risk of car accidents. This article will focus on the Court’s treatment of plaintiffs’ express and implied warranty claims.
Continue reading... - The Ninth Circuit Finds It’s OK if Class Evidence Is Inadmissible
Jun 28, 2018 | Posted by Kirsten F. Gallacher | Topic: Class Actions
In Sali v. Corona Reg'l Med. Ctr., 889 F.3d 623 (9th Cir. 2018), the Ninth Circuit clarified that although a plaintiff must satisfy Federal Rule of Civil Procedure 23’s prerequisites with “evidentiary proof”—such proof need not be admissible evidence at class certification.
Continue reading... - The Sixth Circuit Limits Third-Party Liability for Junk Faxes
Jun 28, 2018 | Posted by Kirsten F. Gallacher | Topics: Class Actions, Telephone Consumer Protection Act
In Health One Med. Ctr., Eastpointe P.L.L.C. v. Mohawk, Inc., 889 F.3d 800 (6th Cir. 2018), the Sixth Circuit held drug manufacturers could not be held liable for sending junk faxes that they knew nothing about.
Continue reading... - Data Breaches May Lead to Liability – Without Any Proof of Injury
May 29, 2018 | Posted by James P. Leonard | Topics: Class Actions, Business Litigation
In response, in part, to the Equifax data breach the California Legislature is considering Senate Bill 1121. This bill proposes to change existing California law and make it possible for a business to be sued for data breaches even if no one was actually injured due to a business’s data breach. Thus, eliminating the current proof of injury requirement under current California law.
Continue reading... - Ninth Circuit Affirms That Company is Not Liable when Plaintiff Provided Prior Express Consent through Insurance Enrollment Form
Apr 30, 2018 | Posted by Elizabeth Chiba Rein | Topics: Class Actions, Telephone Consumer Protection Act
The Ninth Circuit in Fober v. Mgmt. & Tech. Consultants, LLC, 886 F.3d 789 (9th Cir. 2018) recently affirmed the entry of summary judgement in a Telephone Consumer Protection Act (“TCPA”) class action because Plaintiff Audrey Fober (“Plaintiff”) provided prior express consent.
Continue reading... - Unsettled Law Regarding Third-Parties Responses to Litigation Preservation Demands
Apr 30, 2018 | Posted by Elizabeth Chiba Rein | Topics: Product Liability, Business Litigation, Class Actions
The 2015 Amendments to the Federal Rules of Civil Procedure, attempted to limit the potential for over preservation evidence by mandating that discovery be relevant to any party’s claim or defense and proportional to the needs of the case. However, the 2015 Amendments have not stopped attorneys from continuing to serve expansive preservation demands, which often include demands on third parties.
Continue reading... - No Sweetened Deal: District Court Again Dismisses Class Action Regarding Quaker’s Maple & Brown Sugar Oatmeal
Mar 29, 2018 | Topic: Class Actions
A California District Court again dismissed a putative class action that alleged Quaker Oats Company (“Quaker”) violated various false advertising and unfair competition laws when it sold “Maple & Brown Sugar” oatmeal that did not in fact contain any maple syrup. Plaintiffs originally characterized maple syrup as a “flavoring” in the oatmeal.
Continue reading... - Pass the Xantham Gum: The FDA’s New Guidance On What May Be Considered “Natural” May Be Imminent . . . Or Not
Mar 29, 2018 | Topic: Class Actions
An order issued in a class action in the Northern District of California may be a hint that the long-awaited guidance from the U.S. Food and Drug Administration (“FDA”) on the use of the term “natural” in food labeling may be released in the near future. In Rosillo v. Annie’s Homegrown, Inc., Case No. 4:17-cv-02474, the plaintiff alleges that the defendants, Annie’s Homegrown Inc. and General Mills, Inc., advertise and sell “Annie’s Naturals” products, and that despite the use of the term “natural,” the products actually include a synthetic ingredient—xantham gum.
Continue reading... - Ninth Circuit Calls on Established Principles of Vicarious Liability to Affirm Summary Judgment in TCPA Class Action
Feb 28, 2018 | Topics: Class Actions, Telephone Consumer Protection Act
The Ninth Circuit Court of Appeals affirmed summary judgment in favor of the multiple defendants in a Telephone Consumer Protection Act (TCPA) class action case law interpreting the same and Federal Communications Commission (FCC) rulings in reliance upon the Restatement (Third) of Agency,—none of whom had sent the subject text message.
Continue reading... - Illinois District Court Withholds Judgment on Standing Issue in “Made in USA” Claims Against Supplement Manufacturer
Dec 22, 2017 | Posted by Parada K. Ornelas | Topics: Class Actions, Pharmaceutical / Medical Devices
The Federal Trade Commission (“FTC”) requires that to be labeled or advertised as “Made in USA,” a product must be “all or virtually all” made in the United States. This means that significant parts and processing that go into the product must be of U.S. origin, and should contain negligible or no foreign content. Businesses can also make a qualified “Made in USA” claim for products that include American content or processing but do not meet the criteria for making an unqualified claim.
Continue reading... - Is “Loss Causation” a Lost Cause for Corporate Shareholders?: The Ninth Circuit Gives Plaintiffs Another Reason to Pause Before Filing Securities Fraud Claims
Dec 22, 2017 | Posted by Parada K. Ornelas | Topics: Class Actions, Business Litigation
The U.S. Court of Appeals for the Ninth Circuit recently affirmed the dismissal of a class action securities fraud complaint against Yelp, in Curry v. Yelp Inc., in which investors claim that they were misled about the authenticity of business online reviews.
Continue reading... - TCPA Survivor: Fundraiser for the American Cancer Society Evokes the Nonprofit Exemption to Escape Liability
Nov 30, 2017 | Posted by Elizabeth Chiba Rein | Topics: Class Actions, Telephone Consumer Protection Act
The Northern District of Illinois recently granted summary judgment for Associated Community Services (“ACS”), a registered professional fundraiser soliciting funds for the American Cancer Society (the “Society”), who had been sued under the Telephone Consumer Protection Act (“TCPA”) in Spiegel v. Reynolds, No. 1:15-cv-08504, (N.D. Ill. Oct. 11, 2017). This decision is particularly noteworthy, given that it is one of the few federal court opinions analyzing the TCPA’s nonprofit exemption.
Continue reading... - Syrup-titious Labeling: District Court Dismisses Class Action False Labeling Claims Because Quaker’s Oatmeal has Maple Syrup Flavoring
Oct 31, 2017 | Topic: Class Actions
Quaker Oats Company (“Quaker”) manufactures several types of oatmeal in various flavors, including “Maple & Brown Sugar.” In April 2017, six plaintiffs filed a class action lawsuit in the Central District of California accusing Quaker of falsely advertising its Maple & Brown Sugar oatmeal as containing actual maple syrup.
Continue reading... - I’ll Have Another: False-Labeling Class Action Lawsuit Against Hawaiian-Themed Beer Continues
Sep 29, 2017 | Posted by Kirsten F. Gallacher | Topic: Class Actions
In 2017, class action lawyers have filed numerous lawsuits challenging the labels and/or packaging for various products on the issue of where the products are made. Broomfield v. Craft Brew All., Inc., No. 17-cv-01027-BLF, 2017 U.S. Dist. LEXIS 142572 (N.D. Cal. Sep. 1, 2017) is another one of these putative class actions in which the plaintiffs challenge where Kona Brewing Company actually brews its Hawaiian-themed beer.
Continue reading... - The U.S. Supreme Court Rejects the Supreme Court of California “Sliding Scale Approach” to Specific Jurisdiction
Sep 29, 2017 | Posted by Kirsten F. Gallacher | Topics: Pharmaceutical / Medical Devices, Class Actions, Product Liability
In its most recent term, the U.S. Supreme Court issued numerous decisions reiterating the limits of federal courts jurisdiction, which should in theory curb forum shopping. Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1775 (2017) delineates the contours of specific jurisdiction in the context of mass tort litigation against out-of-state companies.
Continue reading... - Ninth Circuit Affirms That Company Is Not Vicariously Liable Under The TCPA
Aug 31, 2017 | Topics: Automotive, Class Actions, Telephone Consumer Protection Act
For the vast majority of people, telemarketing calls have become a fact of life. And for the vast majority of corporations, defending class action lawsuits pursuant to the Telephone Consumer Protection Act (“TCPA”) has become a fact of life. One murky issue that litigants in these class actions have to resolve is that of vicarious liability.
Continue reading... - Ninth Circuit Sheds Further Light On Article III Standing in Spokeo III
Aug 31, 2017 | Topic: Class Actions
The question of what statutory harms satisfy the injury-in-fact requirement under Article III standing has been the topic debated among the circuit courts. In Robins v. Spokeo, Inc., 2017 U.S. App. LEXIS 15211 (9th Cir. Aug. 15, 2017) (“Spokeo III”), the plaintiff alleged that the defendant search engine Spokeo had published an erroneous report that the plaintiff had a graduate degree, was in the “top 10%” in terms of wealth level, and was in his 50’s married with children (among other incorrect details).
Continue reading... - Congress Pumps the Brakes on New Rule Banning Class Action Waivers In Certain Consumer Contracts
Jul 31, 2017 | Topics: Automotive, Class Actions, Business Litigation
On July 11, 2017, the Consumer Financial Protection Bureau (“CFPB”) issued its final rule on arbitration clauses in contracts governing consumer financial products and services. In short, the new rule would ban class action waivers in agreements for new bank accounts or other financial products or services.
Continue reading... - The McGill Decision’s Impact On Arbitration Cases Is Proving To Be Limited
Jul 31, 2017 | Topics: Automotive, Class Actions, Business Litigation, Product Liability
In April of this year, we reported on the California Supreme Court’s finding in McGill v. Citibank, N.A. that an arbitration agreement was unenforceable because the agreement effectively denied the plaintiff the right to seek public injunctive relief (i.e. relief that is primarily designed to stop unlawful acts that threaten future injury to the general public).
Continue reading... - Class Action Lawyers Fight Over Whether “Evaporated Cane Juice” Is Sugar In Disguise
Jun 29, 2017 | Posted by Parada K. Ornelas | Topic: Class Actions
The plaintiff’s bar has been filing false labeling class actions related to products that list “evaporated cane juice” allegedly to avoid listing “sugar” on the label.
Continue reading... - U.S. District Court Decertifies Class in “Natural” Cheese Class Action Lawsuit
Jun 29, 2017 | Posted by Parada K. Ornelas | Topic: Class Actions
In May 2014, consumers of Kraft Food Groups, Inc. filed a class action lawsuit accusing the company of falsely advertising its artificially colored, fat-free cheddar cheese as “natural.” Judge John A. Kronstadt of the U.S. District Court for the Central District of California had initially certified the class of consumers who had purchased Kraft’s “natural” cheese since May 2010.
Continue reading... - Ninth Circuit Ruling Brings Dismissed TCPA Suit Back to Life
May 31, 2017 | Posted by Elizabeth Chiba Rein | Topics: Class Actions, Telephone Consumer Protection Act
A district court in the Northern District of California District Court granted a plaintiff’s motion for reconsideration, finding it actually possessed subject matter jurisdiction based on the Ninth Circuit’s recent ruling in Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017).
Continue reading... - California Supreme Court Holds Arbitration Clause Unenforceable, But the Decision’s Impact On Future Cases May Be Limited
Apr 27, 2017 | Posted by Robert K. Dixon | Topics: Product Liability, Class Actions, Business Litigation
Recently, the California Supreme Court found in McGill v. Citibank, N.A. that an arbitration agreement was unenforceable because the agreement effectively denied the plaintiff the right to seek public injunctive relief (i.e. relief that is primarily designed to stop unlawful acts that threaten future injury to the general public). However, the ripple effect of McGill may ultimately be limited, given that Citibank conceded that its arbitration agreement barred the plaintiff from seeking public injunctive relief, which was likely fatal to its position in McGill.
Continue reading... - Could Sweeping Class Action Litigation Reform Become A Reality?
Mar 31, 2017 | Posted by Robert K. Dixon | Topic: Class Actions
The Fairness in Class Action Litigation Act of 2017 (“H.R. 985” or the “Act”) proposes comprehensive class action litigation reform. For instance, H.R. 985 requires (1) more stringent “typicality” requirements for class members, as the party seeking class certification must affirmatively demonstrate that each proposed class member suffered the same type and scope of injury as the named class representative, (2) additional requirements on fees to class counsel, including limiting fee awards to a reasonable percentage of payments actually distributed and received by class members, (3) distribution fees to class counsel, among other changes.
Continue reading... - Maryland Video Gamers’ Virtual Gambling Claims are Real World Loser
Mar 31, 2017 | Posted by James P. Leonard | Topic: Class Actions
A class action alleging gamers participating in Game of War: Fire Age suffered illegal gambling losses was dismissed by the district court in Maryland—and the Fourth Circuit Court of Appeals has affirmed the ruling. In Mia Mason v. Machine Zone Inc. (case number 15-2469, in the U.S. Court of Appeals for the Fourth Circuit), Plaintiff alleged that she—and thousands of other players—lost money while spinning a virtual wheel within the only game, with the potential to win virtual prizes.
Continue reading... - Print Cartridge Resale Case Hits The Supreme Court—Ruling Could Have Broad Impacts
Mar 31, 2017 | Posted by James P. Leonard | Topic: Class Actions
Retailers, resellers, major corporations, and scholars across the country have been closely watching Impression Products Inc. v. Lexmark International, Inc. The case itself is about printer cartridges—Impression Ink is in the business of “recharging” and reselling used printer cartridges. Based on the “conditional sale” terms that accompany its cartridges Lexmark argued that it has the right to enforce its patents on its cartridges even after the cartridge has been sold, seeking to limit the resale or modification of its printer cartridges.
Continue reading... - Facebook Dodges Robotext Class Action Because Plaintiff Failed to Properly Allege Sufficient Facts That Automated Telephone Dialing System Was Used
Feb 28, 2017 | Topics: Class Actions, Telephone Consumer Protection Act
Many Facebook users have signed onto their accounts using unfamiliar devices (i.e. not their home computers). We can all probably recall the sudden yearning to know the latest gossip from our social network while at work or at a friend’s house. Unable to resist that urge we log-on using our work computer or our friend’s phone to “like” the latest photo or post our own selfie
Continue reading... - Gold’s Gym Prevails On Summary Judgment In TCPA Class Action Because Plaintiff Failed To Effectively Revoke His Prior Express Consent to Receive Text Messages
Feb 28, 2017 | Topics: Telephone Consumer Protection Act, Class Actions
The Ninth Circuit Court of Appeal recently affirmed a lower court’s decision to grant the defendant’s motion for summary judgment in a TCPA class action involving text messages on the basis of consent. See Van Patten v. Vertical Fitness Grp., LLC, No. 14-55980, 2017 U.S. App. LEXIS 1591 (9th Cir. Jan. 30, 2017)
Continue reading... - Alarm Manufacturers Defeat TCPA Claims Based On Vicarious Liability
Jan 31, 2017 | Posted by Robert K. Dixon | Topics: Class Actions, Telephone Consumer Protection Act
The U.S. District Court for the Northern District of West Virginia recently granted summary judgment for the home security alarm manufacturers in In re Monitronics International, Inc. Telephone Consumer Protection Act Litigation (“Monitronics”) despite Plaintiff’s allegations that these defendants were vicariously liable for calls made by other companies that attempting to sell home security’s systems made by the defendants.
Continue reading... - Order Approving Class Action Settlement Was Reversed Because it Was “Worthless” For Most of The Class Members
Jan 31, 2017 | Posted by Robert K. Dixon | Topic: Class Actions
The U.S. Court of Appeals for the Ninth Circuit reversed an order approving class action settlement in a suit brought against a debt collection agency under the Fair Debt Collection Practices Act (FDCPA), because there was no evidence that the injunctive relief afforded by the settlement had any value to the class members.
Continue reading... - Federal Judge Grants Class Certification, But Denies Certifications as to Plaintiff’s Strict Liability Claims
Jan 25, 2016 | Topics: Class Actions, Product Liability
A United States District Judge for the Southern District of California certified a nationwide class and a subclass of California consumers in November 2015.
Continue reading... - California Modifies The Strict Liability Component in Its “Made in U.S.A.” Label Law But It Is Unlikely That These Changes Will Alleviate Threat Of Class Actions
Oct 16, 2015 | Posted by Robert K. Dixon | Topic: Class Actions
Whether or not it was intended, California’s current “Made in U.S.A.” label law includes a strict liability component, because it requires that products marked as “Made in U.S.A.,” “Made in America,” or with similar words, must be 100 percent manufactured in the United States.
Continue reading... - Class Action Lawsuit against Apple over Allegedly Faulty MacBooks Is Dismissed
Mar 17, 2015 | Posted by James P. Leonard | Topics: Class Actions, Product Liability
After landing in U.S. District Court in the Northern District of California, Apple moved to dismiss the case in part because Plaintiffs were unable to provide specific support for any of their claims.
Continue reading... - In California, Plaintiffs’ Bar Again Pushes to Limit Use of Demurrers
Mar 17, 2015 | Topics: Automotive, Business Litigation, Class Actions, Product Liability, Warranty
We have all seen our share of complaints that leave you wondering “so what?” That is, even assuming all of the alleged facts are true, there is no cognizable legal cause of action that can be asserted.
Continue reading... - California Court Slashes Attorney’s Fee Award in TCPA Settlement
Dec 23, 2014 | Posted by Robert K. Dixon | Topics: Class Actions, Telephone Consumer Protection Act
The fact that the court approved another multimillion-dollar Telephone Consumer Protection Act (“TCPA”) class action settlement is not particularly surprising. What is particularly surprising, however, is that the court in Rose v. Bank of America Corporation reduced plaintiffs’ counsel’s attorney’s fee award by approximately 70%, and did so even though the defendant did not object to the fees being sought. 2014 U.S. Dist. LEXIS 121641, *3, 36–37 (N.D. Cal. Aug. 29, 2014).
Continue reading... - Courts Closely Scrutinizing Class Action Settlements
Dec 23, 2014 | Topic: Class Actions
Gone are the days of courts giving their “judicial rubber stamp” to class action settlements. As stated by Judge Posner of the Seventh Circuit, although “[a] trial judge’s instinct, in our adversarial system of legal justice, is to approve a settlement, trusting the parties to have negotiated to a just result as an alternative to bearing the risks and costs of litigation . . . . a judge asked to approve the settlement of a class action is not to assume the passive role that is appropriate when there is genuine adverseness between the parties.” Redman v. Radioshack Corp., 768 F.3d 622, 628 (7th Cir. Sept. 19, 2014). Rather, a judge asked to approve a class action settlement should keep in mind the parties’ respective self-interests, which often results in a settlement that is unfavorable to the class, i.e., a modest settlement amount that is weighted in favor of attorneys’ fees for class counsel as opposed to an amount that results in a substantial recovery to the class. Id.
Continue reading... - It’s alive, IT'S ALIVE!—California Resurrects Sanctions for Frivolous Litigation
Dec 23, 2014 | Posted by Robert K. Dixon | Topics: Business Litigation, Class Actions, Product Liability
California has resurrected the trial court’s authority to issue sanctions, including attorney’s fees, against a party that engages in “bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” Cal. Civ. Proc. Code § 128.5(a) (2015). This is a positive development for defense attorneys and their clients, who find themselves dealing with plaintiffs and/or their attorneys that engage in bad-faith tactics or file frivolous lawsuits.
Continue reading... - The Ninth Circuit Permits Removal of a Subdivided Mass Action Under the Class Action Fairness Act
Dec 23, 2014 | Topics: Class Actions, Pharmaceutical / Medical Devices
In Romo v. Teva Pharmaceuticals USA, Inc., (and its companion case, Corber v. Xanodyne Pharmaceuticals, Inc.) the Ninth Circuit, sitting en banc, reversed a panel decision remanding to California state court multi-plaintiff lawsuits involving defective pain medications under the Class Action Fairness Act of 2005 (“CAFA”), which allows defendants to remove to federal court certain cases raising “claims of 100 or more persons that are proposed to be tried jointly.” 28 U.S.C. § 1332(d)(11)(B)(i).
Continue reading... - Ascertainability in Class Actions a Notable Hurdle for Plaintiffs
Aug 27, 2014 | Topic: Class Actions
Ascertainability, an implied prerequisite for class certification, requires both a sufficiently definite class definition and an administratively feasible way to determine whether a particular person is a class member. (See, e.g., Wolph v. Acer Am. Corp., 272 F.R.D. 477, 482 (N.D. Cal. 2011).) Notably, a number of California courts have recently denied class certification to purchasers of various products due to ascertainability issues, particularly where the purchasers lacked sufficient records of their purchases.
Continue reading... - United States Supreme Court Rejects Attempt to Circumvent CAFA
Dec 31, 2013 | Topic: Class Actions
The Supreme Court’s recent decision in Standard Fire Insurance Co. v. Knowles, No. 11-1450, 2013 U.S. LEXIS 2370 (U.S. Mar. 19, 2013) marks a victory for out-of-state corporate defendants facing state court class actions. The Court addressed whether “a class-action plaintiff who stipulates, prior to certification of the class, that he, and the class he seeks to represent, will not seek damages that exceed $5 million in total” removes the case from the Class Action Fairness Act’s (“CAFA”) scope. (Id. at *5.)
Continue reading... - California Supreme Court Mandates Use of Daubert-Like Standards for Experts
Dec 25, 2013 | Topics: Class Actions, Pharmaceutical / Medical Devices, Product Liability
A recent California Supreme Court opinion will not only have a profound impact on the evidentiary landscape for expert testimony, but will also create a significant advantage for corporate defendants in the products liability context. In Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 (“Sargon”), the Supreme Court unanimously affirmed that state court judges are “gatekeepers” of expert testimony, and that they are required to examine such testimony as to its reliability, methodology, and assistance to the jury.
Continue reading... - Food Labeling Lawsuits a Growing Trend
Jan 1, 2013 | Topic: Class Actions
An increasing number of lawsuits have been filed over "natural" terms used to promote various food, beverage, and personal care products, particularly if the product contains genetically engineered ingredients. Recently filed complaints claiming as false or misleading a product that has been labeled, marketed, or otherwise promoted as "natural” include: (D. Colo.) - class action complaint alleging Pepperidge Farm "mistakenly or misleadingly represented that its Cheddar Goldfish crackers . . .
Continue reading... - California Supreme Court Addresses Disclosure of Recorded Witness Statements and Witness Lists
Jan 1, 2012 | Topics: Product Liability, Class Actions, Pharmaceutical / Medical Devices, Warranty, Business Litigation
In Coito v. Superior Court of Stanislaus County (2012) 54 Cal.4th 480, the California Supreme Court addressed the level of protection for independent witness interviews conducted by attorneys and/or investigators, and information concerning the identity of witnesses from whom counsel or counsel’s investigator has obtained statements (usually sought through form interrogatory 12.3). The Fifth District Court of Appeal in California previously held that there was no absolute or qualified work product protection for this information. The California Supreme Court disagreed, ruling that with regard to the protections surrounding the witness interviews, "we hold that a witness statement obtained through an attorney-directed interview is entitled as a matter of law to at least qualified work product protection. A party seeking disclosure has the burden of establishing that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in an injustice.” Id. at p. 499.
Continue reading... - Discovery Abuses and Attorney Sanctions – Authority all Advocates Should Know
Jan 1, 2012 | Topics: Business Litigation, Class Actions, Pharmaceutical / Medical Devices, Product Liability, Warranty
In May 2010, U.S. District Judge Jeffrey White ordered San Francisco solo practitioner Gregory Haynes to pay over $360,000 in sanctions for litigation misconduct. Haynes appealed the decision after arguing, to no avail, that he could not afford to pay.
Continue reading... - Governor Brown Signs Legislation Regarding Depositions, Jury Fees
Jan 1, 2012 | Topics: Warranty, Class Actions, Pharmaceutical / Medical Devices, Product Liability, Business Litigation
On September 17, 2012, Governor Brown signed Assembly Bill (AB) 1875. The new law, which goes into effect on January 1, 2013, imposes a seven-hour time limit on most depositions in state court and brings California civil procedure in line with the federal rules.
Continue reading... - In Victory for Plaintiffs, California Supreme Court Alters Rule on Joint and Several Liability
Jan 1, 2012 | Topics: Business Litigation, Class Actions, Pharmaceutical / Medical Devices, Product Liability, Warranty
In a setback for the defense bar, the California Supreme Court abrogated the common law "release rule," which held that a plaintiff who settled with one joint tortfeasor released all the others from liability.
Continue reading... - California Supreme Court Grants Review of Collateral Source Rule Affecting Medical Damages in Tort Cases
Jan 1, 2010 | Topics: Business Litigation, Class Actions, Pharmaceutical / Medical Devices, Product Liability
Briefs are currently being filed in the California Supreme Court to seek a final opinion on whether full charges for medical expenses should be payable to tort plaintiffs as damages even where those expenses have been partially paid by an insurer or written off by a provider.
Continue reading... - Heightened Pleading Standard Being Applied
Jan 1, 2010 | Topics: Class Actions, Pharmaceutical / Medical Devices, Product Liability
Trial courts throughout California are applying the heightened factual pleading standards of Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) to dismiss conclusory, nonspecific tort allegations by plaintiffs:
Continue reading... - U.S. Supreme Court Rejects Punitive Damages Award but Leaves Open Question of Whether Award was Unconstitutionally “Grossly Excessive”
Jan 1, 2007 | Topics: Business Litigation, Class Actions, Pharmaceutical / Medical Devices, Product Liability, Warranty
In Phillip Morris USA v. Williams, No. 05-1256 (U.S. Feb. 20, 2007), the United States Supreme Court vacated a $79.5 million punitive damage award assessed against Phillip Morris and held that the U.S. Constitution's Due Process Clause does not permit a jury to base a punitive damages award upon its desire to punish the cigarette manufacturer for harming persons who were not parties to the action.
Continue reading... - Appellate Court Applies Proposition 64 to Limit Class Certification in False Advertising Claim
Jan 1, 2006 | Topics: Class Actions, Business Litigation, Product Liability
The Second District Court of Appeal recently granted Pfizer Inc.’s request for a writ of mandate to overturn a trial court order certifying a class action that had claimed the company marketed its mouthwash in a misleading manner by indicating it could replace the use of dental floss in reducing plaque and gingivitis.
Continue reading... - Federal Discovery Rules Impact Electronic Discovery
Jan 1, 2006 | Topics: Business Litigation, Class Actions, Pharmaceutical / Medical Devices, Product Liability, Warranty
Amendments to Federal Rule of Civil Procedure 26, expected to become effective December 1, 2006,
Continue reading... - U.S. Supreme Court to Revisit Punitive Damages Issue
Jan 1, 2006 | Topics: Business Litigation, Class Actions, Pharmaceutical / Medical Devices, Product Liability, Warranty
The U.S. Supreme Court has added Phillip Morris USA v. Mayola Williams to its docket for the Fall, agreeing to review a $79.5 million verdict against the tobacco company for the death of an Oregon smoker.
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