It has been two years since the U.S. Supreme Court decided Bristol-Myers Squibb Co. v. Superior Court (BMS). In BMS, the Court held that state courts lacked personal jurisdiction over out-of-state defendants relating to state-law mass tort claims that had no connection to the forum state. We have followed this decision closely on the blog here and here. Continue Reading On the Road Again: Does <em>Bristol-Myers Squibb</em> Limit Courts’ Jurisdiction Over Claims by Out-of-State Class Members?

Technology has changed all of our day-to-day lives. It also has impacted how lawyers practice. While having the internet at our fingertips is a convenience for most of us, it can cause headaches for judges and lawyers when jurors use the internet during trial to post or search online about the case. This means that lawyers must be more tech-competent than ever before. Here are two ways that technology has changed how lawyers practice: Continue Reading Two Ways Technology Has Changed How Lawyers Practice

Have you eaten “America’s Favorite Pasta”[1] or received a “record-breaking” [2] footbag with your fast-food meal? While these products may seem to have little in common, they have a shared experience – each was the target of a false advertising claim. The statements raise the always-burning question for manufacturers: what is mere puffery and what constitutes false advertising? Continue Reading Not Another Puff Piece: The Difference Between Puffery and False Advertising

Imagine you try to flush a wipe that is branded flushable and discover it won’t flush. You are angry enough to sue the manufacturer for damages for “consumer fraud,” but should you also be able to force the manufacturer to change the label, even though your experience means you now know the “truth” about the product? Continue Reading Flush with Uncertainty: Do Plaintiffs Have Standing to Seek Injunctive Relief for “Consumer Fraud” When They Are No Longer “Defrauded”?

Of the various debates and documents that can presage the interests and activities of the U.S. Consumer Product Safety Commission (CPSC), the agency’s operating plan is generally the most illustrative. The CPSC adopts a new plan around the beginning of each fiscal year, laying out that year’s objectives. Last Tuesday, the Commission received a briefing from agency staff on the FY20 Op Plan. The five commissioners will now review the draft and discuss potential changes, and they will likely hold another public meeting to vote any amendments and a final plan. Presumably, that vote will occur before Commissioner Ann Marie Buerkle’s departure on October 27; once she’s gone, the body will be evenly split on party lines, and the odds of failing to reach consensus will go up. Continue Reading First Glimpse at the CPSC’s FY2020 Plan

With uses ranging from transporting troops to increasing mobility for people with disabilities, off-road vehicles (ORVs) are being used by more people now than when the all-terrain vehicle (ATV) emerged in the 1960s. With increased demand comes increased discussion about how ORVs are regulated. And the answer is, it depends on where you live. Continue Reading Motor Vehicles or High-Powered Toys: The Diverse Landscape of Off-Road Vehicle Regulation and Where it Might be Going

As Congress returns from its August recess, the House has plenty of work on its plate regarding the U.S. Consumer Product Safety Commission (CPSC). As we wrote previously, six bills addressing specific CPSC-regulated products are on the House floor awaiting votes. Another bill still under subcommittee consideration could help companies regulated by the CPSC, the agency itself, and consumers.

The Focusing Attention on Safety Transparency and Effective Recalls (FASTER) Act (H.R. 3169) would formalize and improve the CPSC’s Fast Track voluntary recall program. In 1995, Fast Track was a welcome and successful innovation, but recently companies have been frustrated by growing delays. Continue Reading Will CPSC Recalls Soon Get FASTER?

In April, the U.S. Consumer Product Safety Commission (CPSC) and the Department of Justice (DOJ) broke new ground by indicting two former officials of a company accused of failing to timely report a potential product safety hazard to the CPSC. Those indictments marked the first time the CPSC has sought to hold executives criminally liable based on an alleged reporting violation. But while the CPSC had never previously filed criminal charges against individual corporate officers, it has previously sought to hold individuals civilly liable for corporate actions. Continue Reading Who’s in Charge Here? The CPSC and Individual Liability for Corporate Actions

Over the past 10 years, the number of private Proposition 65 actions against businesses have nearly quadrupled from 604 in 2009 to 2,364 in 2018. Additional Prop 65 regulations on “safe harbor” warnings and online retailers took effect last August, clarifying the duties of online retailers regarding warnings, which may have caused a decrease in new Prop 65 actions against online retailers.

In light of the new rules and litigation trends, we examine which products are likely to face litigation and offer two ways companies might avoid liability, including by (1) considering the use of “safe harbor” warnings and (2) staying up to date with Prop 65 litigation and the regulations promulgated by the California Office of Environmental Health Hazard Assessment’s (OEHHA) regulations. Continue Reading California’s Prop 65 Amendments One Year Later: Litigation Trends and What to Look Out For

When a bulk container of vitamins tore and began to leak, it set into motion an unforeseen chain of events — beginning with the injury of Martin Cassidy and ending with an increased risk of strict liability for distributors of allegedly defective products.

In an Illinois strict product liability action, the court must dismiss a distributor once that distributor certifies the identity of the product’s manufacturer. Previously, a plaintiff seeking to vacate such a dismissal order — to reinstate the distributor as a defendant — had to show that the manufacturer was “bankrupt or nonexistent.” Cassidy v. China Vitamins, LLC rejected that rule.[1] The court held instead that the distributor could be reinstated as a defendant if the “plaintiff can establish other circumstances that effectively bar recovery of the full measure of judgment damages” from the manufacturer.

What are these other circumstances? The court declined to say, leaving it up to distributors, manufacturers, their counsel, and trial courts to attempt to define them. Continue Reading I Can’t Get No Satisfaction: Illinois Revisits the Standard for Imposing Strict Liability on Nonmanufacturers