Checking Out of Hotel California: The U.S. Supreme Court Holds That Plaintiffs Cannot Sue Companies Anywhere They Do Business

On June 19, 2017, the U.S. Supreme Court decided Bristol-Myers Squibb Co. v. Superior Court of California (BMS), an action brought in California state court that included some non-California plaintiffs alleging injuries not suffered in California. The Supreme Court – for the second time this term – narrowed where plaintiffs can constitutionally sue companies.

The decision already is impacting mass tort actions. On the same day as the BMS decision, a Missouri state court declared a mistrial in an action alleging that Johnson & Johnson’s talc products cause ovarian cancer.

BMS provides product liability defendants with an opportunity to argue that state courts do not have personal jurisdiction over them when the claims have no connection with the defendants’ activities in the forum state. Continue Reading

The Dangers of Partial CPSC Reports: The Kawasaki Penalty

Consumer product companies that suspect a product either contains a defect or poses an unreasonable risk of injury are required to report that fact to the Consumer Product Safety Commission (CPSC) within 24 hours of reaching that conclusion – or risk a civil penalty, like Kawasaki received earlier this month. Continue Reading

Spinning Out of Control? Fidget Spinner Regulation and Safety

Children of all ages—and many adults—can’t keep their hands off fidget spinners, the best-selling toys of the spring and one of hottest new fad toys on the market. Schools in some states have banned them, while others find them helpful for children with attention-related difficulties. Predictably, fidget spinner manufacturers and distributors are feeling the heat of the spotlight, as reports emerge that children are hurting themselves with these toys. Regulators, distributors, and consumers now must sort out how the toys should be marketed and used. Continue Reading

Safe Crossing: The U.S. Supreme Court Gets State Courts on Track with Daimler

On May 30, 2017, the U.S. Supreme Court issued its opinion in BNSF Railway Co. v. Tyrrell (BNSF), another case that defines the constitutional limits of general personal jurisdiction over companies.

The major issue in BNSF was whether a railroad company had a substantial enough presence in Montana for the Montana courts to assert general jurisdiction over the company. The Court’s decision also answered whether a federal law, the Federal Employers’ Liability Act (FELA), conferred personal jurisdiction to state courts over railroad companies wherever they are “doing business.” Continue Reading

It’s a Federal Question: Can Defendants Remove Under the Grable Doctrine?

A Missouri federal court recently retained jurisdiction over state-law claims under the rarely used “Grable doctrine.” The doctrine arose from a 2005 U.S. Supreme Court case, and supports removal when (1) a plaintiff’s state-law claim raises a disputed and substantial federal question, and (2) removal would not disturb the balance between state and federal judicial responsibilities.

Continue Reading

Three Ways to Deal with the FDA Calorie Labeling Delay

On April 25, 2017, the U.S. Food and Drug Administration (FDA) again delayed the deadline for restaurants and grocery stores to implement new calorie labeling rules. Originally set for May 5, 2017, the agency pushed back the deadline a second time, now requiring compliance by May 2018.

However, the delay may have come a little too late. Delaying compliance less than 10 days before the deadline provides little help to businesses that have already worked to comply. And uncertainty still remains as to what the labeling rules will be when compliance is required. Continue Reading

Talc Talk – One of These Things (Verdicts) Is Not Like the Others

We’ve been following a series of cases filed against Johnson & Johnson by plaintiffs alleging that using talc caused ovarian cancer.

Since 2009, over 2000 cases have been filed, mostly in Missouri, New Jersey, and California. Missouri has seen four trials: the first three resulted in plaintiffs’ verdicts, but the fourth and most recent resulted in a verdict for J&J.

Often in mass tort litigation, courts allow the parties to have a series of “bellwether trials” to show what is likely to happen in future trials. Rather than preparing to try all cases in a mass tort litigation, the parties can try fewer cases that involve the most contested issues. In Missouri, the bellwether trial plaintiffs are chosen by counsel, with each side taking a turn to select the next plaintiff. Continue Reading

Is Counting Calories a Cost or a Benefit?

This month, food industry trade groups called on the Food & Drug Administration to halt its new food labeling law requiring food establishments to publish the calorie content of menu items.

Organizations like the National Grocers Association (NGA) and the National Association of Convenience Stores (NACS) continue to argue against the law. The major reason: costs. Not only the costs they’ll incur to implement it, but the long-term costs to remain compliant may be even higher. And research continues to show that menu labeling does not change consumer behavior. Continue Reading

Chipotle Gets a (Nearly) Clean Bill of Health

As Chipotle continues the fight to restore its reputation, there are a few signs it’s moving in the right direction since our July 2016 post.

First, in February 2017, Chipotle’s sales rose for the first time in five quarters. And it reclaimed its place as the top Mexican food restaurant according to Market Force Information’s annual quick-service restaurant study. It further earned top marks for food quality and cleanliness. Continue Reading

It’s Not Personal: Companies Can’t Be Sued Everywhere

The highest courts in two states have made it more difficult for plaintiffs to sue companies in state courts of their choosing. The Oregon and Missouri Supreme Courts recently dismissed claims against companies for lack of jurisdiction where the companies were not incorporated or headquartered in the forum state, or were not sued because of their activity in the state.

These decisions come before the U.S. Supreme Court decides Bristol-Meyers Squibb v. Superior Court of California (BMS) this spring. BMS will further define the boundaries of personal jurisdiction over companies because the Supreme Court will decide whether jurisdiction attaches to a company because of its activities in a state even if the company’s specific in-state activities did not cause the plaintiffs’ injuries.

BMS will be the second time the Supreme Court has recently looked at personal jurisdiction; in Daimler AG v. Bauman, the Supreme Court held that a company’s substantial operations in a state did not establish jurisdiction because the company’s particular in-state operations made up a small portion of its nationwide and global business. Continue Reading

LexBlog