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. ______________________________________________________________________________________________________________________
- Illinois District Court Withholds Judgment on Standing Issue in “Made in USA” Claims Against Supplement Manufacturer
Dec 22, 2017 | Posted by Parada K. Ornelas | Topic: Class Actions
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 | Topic: Class Actions
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... - The War on Adulterated Drugs: Federal Court Issues Permanent Injunction Against California Dietary Supplement Manufacturer
Nov 30, 2017 | Posted by Elizabeth Chiba Rein | Topic: Business Litigation
In September 2017, Federal prosecutors filed a lawsuit under the Federal Food, Drug, and Cosmetic Act for a permanent injunction against Custompax, Inc. and its owner Cedric Ling (“Defendants”) in the United States of America v. Custompax Inc. et al., No. 5:17-cv-05269-SVK. (N.D. Cal. Sep. 12, 2017) The lawsuit alleged that the Defendants manufactured and distributed adulterated customized dietary supplements online.
Continue reading... - Not-So-Sour Lemon Law: California Court of Appeal Affirms an Award of Costs to a Prevailing Vehicle Manufacturer
Oct 31, 2017
The California Court of Appeal recently provided some relief to automobile manufacturers in the notoriously pro-consumer California “lemon law” field. In Haroun v. BMW of North America, LLC, 2017 Cal.App.Unpub. LEXIS 6089, the plaintiff sued BMW of North America, LLC (“BMW”) for violation of the Song-Beverly Consumer Warranty Act in connection with his purchase of a used BMW vehicle.
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 | 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 | Topics: 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 | Topic: Class Actions
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: 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: 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 | Topic: Class Actions
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... - Vehicle Rollover Case Requires Risk Benefit Test, Not Consumer Expectation Test*
May 31, 2017 | Posted by Elizabeth Chiba Rein | Topic: Product Liability
The Ninth Circuit Court of Appeal in Edwards v. Ford Motor Co., No. 15-55577, 2017 U.S. App. LEXIS 4905, at *2 (9th Cir., Mar. 20, 2017), affirmed the judgment in favor of Ford Motor Company (“Ford”) on successor-in-interest to decedent Fiailoa Edwards’ (“Edwards”) claim that Edwards’ 2002 Ford Explorer Sport Trac (“Vehicle”) was defective.
Continue reading... - California Supreme Court Holds Arbitration Clause Unenforceable, But the Decision’s Impact On Future Cases May Be Limited
Apr 27, 2017 | 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... - Court Interpreting Settlement Agreement Holds Defendant Was Not An “Affiliate” Based Simply On A Contractual Relationship
Apr 27, 2017 | Topics: Business Litigation, Product Liability
The vast majority of cases settle. And the vast majority of those settlements include a release that spans to almost everyone from “officers” to “agents” to “representatives” to “affiliates” (if Mel Brooks drafted one, it may even include his father’s brother’s nephew’s cousin’s former roommate). But a recent Court of Appeal opinion found the term “affiliate” may not be as broad as defendants think, holding that a simple contractual relationship is often not going to be enough.
Continue reading... - Split of Authority on Admissibility of Industry Custom Evidence in Design Defect Cases to Soon Be Resolved
Apr 27, 2017 | Topic: Product Liability
There is currently a split of authority among the California Courts of Appeal concerning the extent to which evidence of industry custom is admissible in strict product liability actions to prove or disprove the existence of a design defect.
Continue reading... - Could Sweeping Class Action Litigation Reform Become A Reality?
Mar 31, 2017 | 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 | Topic: Class Actions
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 | Topic: 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 | Topic: Class Actions
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 | 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.
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