Asbestos-Liability-Suit Judges Should Be Wary of Plaintiffs’ Expert’s “Notice” Testimony

RobertWrightFeatured Expert Contributor, Mass Torts—Asbestos

Robert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

Anyone involved in asbestos litigation has come across the work of Barry Castleman.  By his own account, Castleman has testified for plaintiffs as an expert witness in over 400 trials in asbestos cases discussing the medical literature written about the mineral over the past 100+ years.  Castleman clearly possesses an encyclopedic knowledge of asbestos, but when considering whether his testimony is admissible, trial judges must ask:  is it all inadmissible hearsay? Continue reading “Asbestos-Liability-Suit Judges Should Be Wary of Plaintiffs’ Expert’s “Notice” Testimony”

Tronox/Cristal Merger Fight Highlights the FTC/DOJ Divide in U.S. Merger Control Proceedings

06633 - Royall, M. Sean ( Dallas )Featured Expert Column: Antitrust & Competition Policy — Federal Trade Commission

By M. Sean Royall and Richard H. Cunningham, Partners with Gibson, Dunn & Crutcher LLP, and Justin Epner, an Associate in the firm’s Washington, DC office.  The authors would like to thank Jasper Hicks, who is an Associate in Gibson Dunn’s Denver, CO office, for his substantial contributions to this post.

In early 2017, Mississippi-based titanium dioxide (TiO2) pigment producer Tronox Limited (“Tronox”) agreed to purchase the TiO2 business of one of its rivals, Saudi Arabian producer Cristal (“Cristal”).  Alleging a horizontal competitive effects theory, the Federal Trade Commission (FTC) voted in December 2017 to challenge the deal in its internal administrative court.  Roughly two months after the FTC initiated the administrative challenge, however, the litigation took an interesting and unusual turn—Tronox filed a federal lawsuit of its own against the Commission in the Northern District of Mississippi.  Continue reading “Tronox/Cristal Merger Fight Highlights the FTC/DOJ Divide in U.S. Merger Control Proceedings”

WLF Welcomes Gregory A. Brower Back to its Legal Policy Advisory Board

Brower_GregWe are pleased to note that attorney Gregory A. Brower has accepted our invitation to rejoin Washington Legal Foundation’s Legal Policy Advisory Board. Greg joined the Board in 2010 and was an active member until stepping down in 2016 after accepting a position as Deputy General Counsel of the Federal Bureau of Investigation.

He most recently served as Assistant Director for the FBI’s Office of Congressional Affairs. In his return to private practice, Greg joined the law firm Brownstein Hyatt Farber Schreck, LLP as a Shareholder in the Washington DC and Las Vegas and Reno, NV offices.

Greg’s work at the FBI is just a part of his history in public service at both the state and federal levels. He served five terms in the Nevada Legislature and held the position as Chairman of the Senate Judiciary Committee prior to joining the FBI. Before that, he was the United States Attorney for the District of Nevada, and held positions as General Counsel and Inspector General of the U.S. Government Printing Office.

Decision’s Permissive Standing Analysis Tags Ninth Circuit as Favorable Forum for Data-Related Suits

Cruz-Alvarez_FFeatured Expert Contributor—Civil Justice/Class Actions

By Frank Cruz-Alvarez, a Partner with Shook, Hardy & Bacon L.L.P. in the firm’s Miami, FL office, with Erica E. McCabe, an Associate in the firm’s Kansas City, MO office.

On February 26, 2018, the U.S. District Court for the Northern District of California tracked the U.S. Court of Appeals for the Ninth Circuit’s permissive approach to Article III standing when it denied Facebook Inc.’s (Facebook) renewed motion to dismiss for lack of subject matter jurisdiction in Patel, et al. v. Facebook Inc., ___F. Supp. 3d ___, 2018 WL 1050154 (N.D. Cal. Feb. 26, 2018).  In rejecting Facebook’s motion, the court held that the putative class properly alleged a concrete injury in fact, consistent with the U.S. Supreme Court’s ruling in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (Spokeo I). Continue reading “Decision’s Permissive Standing Analysis Tags Ninth Circuit as Favorable Forum for Data-Related Suits”

Update: Ninth Circuit Affirms End of Iced-Coffee Serving-Size Class Action

Food Court Follies—A WLF Legal Pulse Series

In a September 7, 2016 post, we enthusiastically applauded a Central District of California judge’s decision to dismiss, with prejudice, a truly outrageous lawsuit filed against Starbucks. The plaintiff claimed Starbucks misled him into believing that a 12-ounce iced tea or coffee should contain 12 ounces of liquid, and that the ice should not factor into the drink size. The jilted consumer appealed to the U.S. Court of Appeals for the Ninth Circuit which, on March 12, 2018, finally affirmed the trial court in a three-page unpublished opinion. Forouzesh v. Starbucks Corp.

iced coffee
Misleading?

The three-judge panel agreed with the lower court that no reasonable consumer would be misled in the way Forouzesh claimed to have been, and thus he could not sustain claims under California consumer-protection laws. He also could not prevail in his fraud claim because he could not prove he justifiably relied upon Starbucks’ supposedly misleading product representations. Finally, the trial judge did not abuse his discretion when he dismissed the suit with prejudice, as any amendment Forouzesh made of his complaint would have been futile.

We trust that courts in other jurisdictions entertaining similar (and similarly bogus) claims against Starbucks and other beverage providers will take notice of the outcome, as will elected officials in other states that are reviewing permissive consumer-protection laws.

Update: Despite Previous Judicial Guidance, Misled-by-Maple Class Action Dismissed Again

maple and brown sugarFood Court Follies—A WLF Legal Pulse Series

Last November, a Food Court Follies series post offered two-cheers for a Central District of California judge’s dismissal of consolidated class actions filed against Quaker Oats (In re Quaker Oats Maple & Brown Sugar Instant Oatmeal Litigation). The two cheers were for properly finding that federal law preempted the suit because it would impose novel (i.e. additional) labeling requirements.

We withheld the third cheer in part because the court not only failed to dismiss the suit with prejudice, but it also counseled the plaintiffs on how they could re-plead around his preemption ruling. The plaintiffs filed an amended complaint on November 10, 2017.

The plaintiffs’ changes apparently amounted to “lipstick on a pig,” because on March 8, the court again dismissed the suit, this time with prejudice. Continue reading “Update: Despite Previous Judicial Guidance, Misled-by-Maple Class Action Dismissed Again”

Update: FDA’s Amicus Views Prevail in Third Circuit Medical-Device Preemption Case

FDALate last year we highlighted steps the Food and Drug Administration (FDA) made in 2017 to reestablish its authority as uniform regulator of drugs and medical devices.  That role, we explained, was in danger due to the ever-increasing list of state tort and consumer-protection lawsuits brought by plaintiffs’ attorneys on behalf of private litigants.  In the post, we examined three instances where FDA independently stepped in to ongoing litigation to advance arguments supportive of regulatory uniformity.

In one instance, FDA submitted an amicus brief to the Third Circuit in a case where the plaintiff alleged that the manufacturer of his artificial hip promoted the device illegally.  In its brief, FDA emphasized that the Food, Drug & Cosmetic Act (FDCA) expressly preempted state-law claims that would impose “different or additional requirements on approved devices.”  Because each of the plaintiffs’ claims challenged the safety and effectiveness of an approved device, FDA argued that any state-law claim would “impose additional requirements” and was thus preempted by the FDCA.

In its March 1, 2018 opinion in Shuker v. Smith & Nephew, PLC, the Third Circuit agreed with FDA.  Holding that the plaintiffs’ claims “would impose non-parallel state law requirements,” the appellate court found the state-law claims preempted.

The Third Circuit’s decision is just another example of the importance of FDA’s role as uniform regulator.  Hopefully FDA’s current leadership will continue to lead the way in ensuring the consistency that all consumers expect when making choices about their medical products.