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. ______________________________________________________________________________________________________________________
- 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 | Topic: Class Actions
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 | Topic: Class Actions
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 | Topics: 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... - California Court of Appeal Holds Attorney Is Not Bound By Settlement Agreement’s Confidentiality Provision Based on Boilerplate Language in the Signature Block
Aug 31, 2018 | Topics: Product Liability, Business Litigation, Warranty
Virtually all settlements include some type of confidentiality provision. Some confidentiality provisions may only require the parties to keep the terms and conditions of the settlement confidential; while others are more expansive, and require the parties as well as their attorneys to keep the settlement confidential. In settlement agreements with these more expansive confidentiality provisions, the parties’ attorneys typically sign the agreement.
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
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, 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 That Company Has No Duty to Disclose that Child or Slave Labor Might Be Used To Produce Its Products
Jul 31, 2018 | Topic: Business Litigation
In a recent decision, the Ninth Circuit Court of Appeals held that California Consumer Protection laws did not obligate Mars, Inc. to label its goods as possibly being produced by child or slave labor. Defendant-appellee Mars, Inc. (“Mars”) produces, among other goods, chocolate candies. The Ivory Coast is the world’s largest producer of coca beans and some cocoa beans from the Ivory Coast are produced using what the International Labor Organization (“ILO”) calls “the worst forms of child labor” including children sold by their parents to traffickers or kidnapped and forced to work in extremely dangerous conditions.
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 | Topic: Class Actions
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... - Lemon Law Fees Approved By Southern District Court
May 29, 2018 | Posted by James P. Leonard | Topics: Product Liability, Warranty
After settling the underlying warranty claims, a dispute arose between the parties related to attorneys’ fees. Ultimately, plaintiff filed a petition for fees and costs, which was recently decided by U.S. Magistrate Judge William V. Gallo. Of likely interest to companies faced with California Song-Beverly Consumer Warranty Act (“Song-Beverly”) matters, Judge Gallo approved an hourly rate of $500 for plaintiff’s counsel.
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 | Topic: Class Actions
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... - California Supreme Court Ruling on Generic Drug Extends Lifespan of Predecessor Brand-Name Manufacturer Liability
Feb 28, 2018 | Topic: Product Liability
Plaintiffs who were in utero when their mother was prescribed terbutaline, a generic version of an asthma drug that is used off-label to prevent premature labor, filed suit against the brand-name manufacturer of said drug, Brethine.
Continue reading... - Ninth Circuit Calls on Established Principles of Vicarious Liability to Affirm Summary Judgment in TCPA Class Action
Feb 28, 2018 | Topic: Class Actions
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.
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