In the law of product liability, lawyers representing manufacturers have underutilized the broad prohibition on “category liability.” Shook Public Policy Partners Victor Schwartz and Cary Silverman explain this doctrine and show how a Mississippi trial court judge applied it to dismiss design defect claims against respirator manufacturers in a Bloomberg BNA Product Safety & Liability Reporter article. Category liability arises when there is no true reasonable alternative design for a lawful product. For example, it is inappropriate to compare the safety of a convertible with an open roof design to a car with a solid roof design. Roller skates should not be compared to rollerblades. Bicycles and motorcycles should not be compared to tricycles and scooters. In the Mississippi litigation, plaintiffs presented elastomeric respirators (sealed to face with inhalation/exhalation valves, cleaned and reused) as a safer alternative to disposable respirators (known as N-95s). A perceptive trial court judge applied category…
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A Missouri federal court has granted a motion to dismiss a lawsuit against Source Naturals, Inc., maker of Life Force® multivitamins, alleging the company misrepresented the amount of vitamins and nutrients in the product on the label. Dougherty v. Source Naturals, Inc., No. 15-0574 (E.D. Mo., order entered December 8, 2015). The plaintiff argued her tests of the multivitamin showed that the nutrient content claims on the product packaging were false, amounting to a violation of the Missouri Merchandising Practices Act. The court disagreed, finding the plaintiff's testing did not meet the methodology mandated by the U.S. Food and Drug Administration (FDA). "Because Plaintiff has failed to allege she followed FDA testing protocols," the court found, "her state law claims that rely on a different methodology to demonstrate such labeling violations are inconsistent with the [federal Food, Drug, and Cosmetic Act] and are thus preempted." Accordingly, the court granted the…
Shook, Hardy & Bacon Data and Discovery Strategies attorneys Jesse Weisshaar and Mark Cowing analyze changes to the Federal Rules of Civil Procedure in a newly published Bloomberg BNA: Digital Discovery & e-Evidence® special report titled “Amendments to Discovery Rules: How Will You Be Affected?” Providing a detailed overview of the amendments that took effect December 1, 2015, the report addresses rules pertaining to discovery in general as well as the discovery of electronically stored information. The authors explore the practical implications of increased court involvement in the discovery process, discussing new provisions that emphasize proportionality and seek to facilitate “early, frequent and informed” cooperation between parties. They recommend that parties be prepared to “act sooner,” “be specific” and “reassess preservation practices.” As the report concludes, “[A]ll involved should be prepared to adjust their existing approaches to discovery to comply with the compulsory aspects of the Rules’ amendments: (a) the…
Shook, Hardy & Bacon attorneys Frank Cruz-Alvarez, Jennifer Voss, Jared Sherr and Talia Zucker have authored an October 2015 Washington Legal Foundation (WLF) monograph surveying eight years of U.S. Supreme Court rulings to forecast trends in federal preemption analysis for practitioners and policymakers. With a forward by GlaxoSmithKline Senior Vice President and General Counsel Daniel Troy, Federal Preemption: Origins, Types and Trends in the U.S. Supreme Court considers how the doctrine of federal preemption "will continue to challenge the judicial system in light of Congress's increasing desire to enact federal regulatory schemes that implicate many traditional state government powers and functions." To this end, the monograph aims to provide "a guide to the competing views on preemption expressed by the United States Supreme Court and to anticipate what participants in the judicial system can expect in the coming years as new preemption problems find their way to the Court." Examining…
Shook Partner Jim Muehlberger and Associate Iain Kennedy have co-authored an article for Law360 about slack-fill regulation and litigation. They note that although some product packaging uses unused space within a bottle or bag for functional purposes—transportation or theft protection, for example—companies have increasingly been targeted for litigation under the Fair Packaging and Labeling Act or U.S. Food and Drug Administration regulations. “All of the legitimate explanations in the world have not deterred some in the plaintiffs’ bar, who have seized upon slack-fill litigation as the newest product packaging and labeling class action du jour,” Muehlberger and Kennedy write. The article summarizes the litigation landscape, including existing putative class actions challenging potato chip, eye drop and deodorant packaging, and notes that plaintiffs usually allege some combination of misrepresentation, fraud, unjust enrichment, breach of warranties and consumer-protection statutory claims. Muehlberger and Kennedy offer ideas for minimizing slack-fill litigation risk, including considering…
Shook, Hardy & Bacon attorneys Madeleine McDonough and Jara Settles have co-authored a chapter in the Food and Drug Law Institute’s Top 20 Food and Drug Cases, 2014 and Cases to Watch, 2015. They discuss the district court’s decision in Khasin v. Hershey, in which a consumer challenged the confectioner’s label claims of health value and antioxidant content in several products. McDonough and Settles detail factors in the court’s rationale for dismissing most of the case, including a detrimental admission that the plaintiff did not rely upon the labeling when purchasing the products at issue. “Khasin highlights the importance of demonstrating actual reliance in putative consumer protection class actions,” they explain. “After months of briefing and discovery, a simple conversation (in the form of a deposition) destroyed the vast majority of plaintiff’s claims.” The court later dismissed the rest of the plaintiff’s claims as well. Details of the dismissal appear in Issue…
In a May 5, 2015, Law360 analysis, Shook, Hardy & Bacon Partner Andy Carpenter chronicles a “meta” class action against Riceland Foods, Inc., a party to multidistrict litigation (MDL) stemming from the use of genetically modified organism (GMO) rice, which several thousand rice farmers alleged had tainted the U.S. rice supply. After Riceland obtained a verdict in a cross-claim against Bayer and settled its portion of the MDL, class-action counsel and plaintiffs filed a lawsuit against the company to obtain compensation for their work, from which they argued Riceland benefited when it received a judgment from Bayer. Carpenter details the reasoning of the district court and the later affirmation from the Eighth Circuit, discussing issues of jurisdiction and choice of law. Issue 564
In a May 8, 2015, Law360 article titled “For High Court, 2 Scoops of Raisins In This Case,” Shook, Hardy & Bacon Partner Ann Peper Havelka and Associate Jara Settles provide an overview of the arguments in a U.S. Supreme Court case challenging the U.S. Department of Agriculture’s program requiring raisin farmers to set aside a portion of their yield to give to the federal government to aid in stabilizing the market. They document the questions and responses during oral argument, noting the issues that interested the justices, including Justice Stephen Breyer’s point that compensation for the alleged taking may have been paid in the form of increased raisin prices and Justice Samuel Alito’s concern over whether a similar program could be instituted for other products, such as cell phones or cars. “Despite the government’s defense of a decades-old price stabilization plan, the court’s questioning during oral argument leaned toward…
Shook, Hardy & Bacon Partner Jim Muehlberger and Associate Jeff Lingwall assert in an April 29, 2015, Law360 analysis that offering refunds to dissatisfied consumers can benefit companies by lessening the impact of a class action or averting one altogether. “If many refunds are claimed, a court may find that named plaintiffs are not adequately protecting class interests and that a class action is not the superior method for resolving the dispute. If few refunds are claimed, this is evidence that plaintiffs’ counsel is creating litigation when none existed, again strengthening superiority arguments. If the named plaintiffs receive refunds, this can defeat their standing to bring a lawsuit and end the class action before a motion for class certification,” they argue. “In each circumstance, a refund policy provides valuable preemptive insurance that can help stop a class action in its tracks.” Muehlberger and Lingwall provide examples for each proposition, citing…
In a recent article for Law360, Shook, Hardy & Bacon Class Actions & Complex Litigation Co-Chair Jim Muehlberger and Agribusiness & Food Safety Associate Jeff Lingwall discuss the new wave of putative class action litigation against food and nutraceutical companies brought by plaintiffs bearing product test results that allegedly indicate deviations from labeled amounts. They explain U.S. Food and Drug Administration (FDA) standards for evaluating nutrition labeling and attendant provisions of the Federal Food, Drug, and Cosmetic Act/Nutrition Labeling and Education Act, advocating anticipatory measures by companies, given the advent of product testing websites, crowdfunded research and the increased scrutiny of the dietary supplement industry. Such measures, they say, include ensuring that (i) production processes (and those of any contract manufacturers) produce FDA-compliant test results and (ii) performing regular product testing to assure compliance with nutrition labeling per FDA-testing procedures. Issue 557
