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Two cases decided 25 years apart, but there were some facts in common: a hot drink, a consumer alleging that she was burned by the drink, and a lawsuit. These are the facts of the 1994 case Liebeck v. McDonald’s Restaurants that resulted in an award of millions to the consumer, but also the facts from Shih v. Starbucks, a case decided last year. In Shih, however, the court found in favor of the product supplier. What’s different about these cases? The answer: how the courts interpreted proximate cause. Continue Reading The Hot Coffee Case Revisited: Has Proximate Cause Changed in the 25 Years Since Liebeck v. McDonald’s Restaurants?

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Plaintiffs are filing an increasing number of lawsuits against companies alleging that their websites violate Title III of the Americans with Disabilities Act (ADA) because the sites are not accessible to visually impaired customers. But these lawsuits assume an answer to an unresolved question: does Title III apply to websites? Title III applies to “places of public accommodation” and prohibits discrimination on the basis of an individual’s disability. Yet neither the statute nor the accompanying regulations state that websites are places of public accommodation, leaving courts (or Congress) to determine whether websites are required to comply with Title III. Continue Reading ADA Website Litigation: Eleventh Circuit Holds Website is Not Subject to Title III

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Illinois Governor J.B. Pritzker recently signed into law SB0072 (the “Prejudgment Interest Act”), a revised version of the bill he had previously vetoed and that we discussed in a prior alert. The Prejudgment Interest Act will amend the Code of Civil Procedure (735 ILCS 5/2-1303) to provide plaintiffs with prejudgment interest on certain damages awarded in Illinois personal injury and wrongful death cases.[1] While the new law dials back some of the controversial aspects of its predecessor bill – for example, the nine percent interest accruing when the defendant receives notice of the injury – the new law still increases the potential risk that companies face in defending personal injury and wrongful death suits. Unlike the earlier bill, however, the new law gives defendants an opportunity to reduce their risk through settlement offers. Continue Reading UPDATE: Companies Defending Personal Injury or Wrongful Death Suits in Illinois Now Face Prejudgment Interest

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Since 2019, the Federal Trade Commission and the U.S. Food and Drug Administration have warned companies that make or sell cannabidiol (CBD) products that it is illegal to label and advertise that their products prevent, treat, or cure human disease without FDA approval or competent and reliable scientific evidence to support their claims. Both agencies have issued warning letters to makers and sellers of CBD products.

Our Cannabis Industry Team, which has been following key legislative and regulatory developments impacting industry retailers, takes a close look at who does what. The FTC’s and the FDA’s authority to regulate CBD products overlaps, but there are differences in the agencies’ enforcement powers and how they are using them. Continue Reading The FTC’s Operation CBDeceit, A Piece of the CBD Regulatory Pie

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U.S. companies have been inundated with lawsuits in the past several years alleging that their websites do not comply with the Americans with Disabilities Act (ADA) and various state laws, including the California Unruh Act. Plaintiffs claim that the websites do not meet the Web Content Accessibility Guidelines (WCAG) created by the nonprofit World Wide Web Consortium because visually impaired consumers allegedly cannot access the sites using screen-reader software. While it is difficult to determine with precision the number of cases that have been filed, they have increased 75 percent from just over 2,000 reported cases in 2018 to approximately 3,500 in 2020 – and the numbers are steadily rising. The cases target all manner of business across a wide range of industries. Continue Reading ADA Website Litigation Continues to Proliferate in 2021

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On February 2, 2021, the Eleventh Circuit weighed in on the “ascertainability” debate raging in the federal courts – specifically, whether plaintiffs must show that it would be “administratively feasible” to identify class members before the class can be certified. The term “ascertainability” is not in the text of Federal Rule of Civil Procedure 23. Some courts, however, view ascertainability as an implicit requirement of a properly defined class. Other courts take it a step further and embrace a “heightened ascertainability” standard – i.e., “administrative feasibility” – and deny certification when plaintiffs fail to prove that the process for identifying absent class members will be administratively feasible. Continue Reading The Eleventh Circuit Joins the Majority in Rejecting a Heightened Ascertainability Requirement for Class Actions

Punitive damages can often multiply a defendant’s potential exposure in litigation. A recent California appellate court decision, however, may make it easier for defendants to obtain summary judgment for punitive damages claims before a jury may consider a possible award. In Morgan v. J-M Manufacturing Company, Inc.,[1] the court vacated a $15 million punitive damages award because there was insufficient evidence to support the award. In fact, the court emphasized that there was no evidence that any corporate officer, director, or managing agent authorized or ratified any wrongful conduct, which a plaintiff must show under California law for a jury to award punitive damages. The ruling could signal that courts are requiring more specific evidence showing corporate defendants authorized or ratified wrongdoing, which in turn could help defendants get punitive damages claims dismissed before trial or awards vacated on appeal. Continue Reading California Appellate Court Vacates $15 Million Punitive Damages Award

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A new bill sitting on Illinois Governor J.B. Pritzker’s desk could change the calculus for defendants in personal injury and wrongful death lawsuits by entitling plaintiffs to prejudgment interest both in future lawsuits and in lawsuits that have already been filed. The bill could make plaintiffs’ verdicts more costly for defendants while also inflating settlement amounts.

HB3360 passed both houses on January 13 and went to the governor on February 4 for signature. If the bill becomes law, it will amend the Code of Civil Procedure (735 ILCS 5/2-1303) to provide plaintiffs with prejudgment interest on all damages awarded in personal injury and wrongful death cases in Illinois.[1] Previously, plaintiffs were entitled only to postjudgment interest in these cases. The bill entitles plaintiffs to collect prejudgment interest in negligence and strict liability, as well as in cases of willful or wanton or intentional misconduct. Continue Reading Companies Defending Personal Injury or Wrongful Death Suits in Illinois Will Face Prejudgment Interest If New Bill Becomes Law

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In light of the COVID-19 pandemic, manufacturers of cleaning products may want to examine what their marketing says (or doesn’t say) about their products’ ability to disinfect. What manufacturers should note: Plaintiffs’ lawyers are filing an increasing number of false advertising claims alleging that cleaning and sanitizing products do not do what they purport to do. While plaintiffs must still satisfy the existing legal standards for false advertising claims, these claims may lead some manufacturers to consider adjusting their marketing strategies. Continue Reading How COVID Has Changed False Advertising Rules