Recent Court Developments: BPA, Nutella® and Alaskan Fishing Regulations Litigation
A multidistrict litigation court in Missouri has denied motions for class certification in 24 transferred cases against companies that make baby bottles and sippy cups allegedly containing bisphenol A (BPA). In re: Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., MDL No. 1967 (W.D. Mo., decided July 5, 2011). The plaintiffs sought to certify various classes, including individual state classes and multi state classes as to certain claims and defendants. The court focused on the commonality, predominance and superiority prongs of class certification to conclude that differences in state laws and facts unique to each putative class member rendered the claims unsuitable for class treatment.
Still, the court dismissed the requests to certify individual statewide classes
without prejudice, finding it appropriate to allow the transferor courts to
determine whether these classes met the certification requirements when the
cases are returned to their jurisdictions. The court also indicated that it would
delay remand “until after one or more cases have been litigated through final
judgment.” The court invited the plaintiffs to seek the certification of one or
more Missouri classes by August 8, 2011.
A federal court in California has narrowed the issues for trial in a consumer
class action “brought on behalf of people who have purchased Ferrero’s
Nutella® spread after relying on allegedly deceptive and misleading labeling
and advertisements.” In re Ferrero Litig., No. 11-205 (S.D. Cal.,
decided June 30, 2011). Granting in part and denying in part the defendant’s
motion to dismiss, the court determined that (i) the plaintiffs lack standing
to challenge the company’s website statements about its product because
they did not actually rely on those statements, and (ii) the plaintiffs’ challenge
to the adequacy of the company’s disclosure of an artificial ingredient is
preempted by federal law.
The court declined to rule on whether the plaintiffs’ claims about the company’s
TV statements, “Hazelnut Spread with Skim Milk & Cocoa” and “Made with
over 50 Hazelnuts per Jar,” were preempted by federal law. The court did not
agree with the defendant that its statements were not likely to deceive an
ordinary consumer and that some of the statements were non-actionable
puffery. The plaintiffs will also be allowed to pursue their claims for violations
of the Consumers Legal Remedies Act, unfair and unlawful conduct under the
Unfair Competition Law, breach of express warranty, and breach of implied
warranty of merchantability.
The Ninth Circuit Court of Appeals has dismissed the claims of commercial
fishers who challenged state regulations that shortened the salmon fishing
year and limited the number of fish that could be harvested. Vandevere v.
Lloyd, No. 09-35957 (9th Cir., decided July 11, 2011). The plaintiffs claimed
that the regulations were unconstitutional as a taking of property without
just compensation and as a violation of their due process rights. A district
court granted the state’s motion for summary judgment, and the Ninth Circuit
affirmed.
The court provided an overview of Alaskan fishing laws to determine that
under state law, the plaintiffs do not have a protected property interest in
their entry permits, and, although their leases confer a “limited property
interest,” they waived their right to challenge the regulations when they
signed the lease agreements. Apparently, the lease provisions “plainly
exempt[] regulatory takings of the kind challenged here from the requirement that Plaintiffs receive just compensation.” The court also determined that the state’s “decision to enact a system of licenses or use privileges was not unreasonable, arbitrary, or capricious, and the tatute bears a substantial and reasonable relationship to Alaska’s goals of salmon conservation and maintenance of a stable fishery.”
