Since prescription opioids were first introduced for pain treatment in the 1990s, the number of drug overdose deaths has quadrupled, and more than a half million Americans have died from an overdose involving an opioid.[1] The CDC has labeled this an epidemic, and most agree that it is a public health crisis. But courts are divided over whether this crisis is legally a public nuisance. As appellate courts issue decisions and trials across the country reach verdicts, the contours of tort law are being reshaped and defined — specifically the applicability of public nuisance in product liability and mass torts cases. Continue Reading Trending in Tort Law Part II: Courts Address the Growing Use of Public Nuisance in Mass Torts

Amid the holiday cheer this year, you may have noticed longer shipping times and more items out of stock, even as you’ve ordered more online than in the past. Businesses and consumers alike have learned over the past 21 months that the COVID-19 pandemic has led to supply chain bottlenecks and hampered delivery times. Companies often have no control over these delays, but a recent $950,000 settlement between the State of California and Yeezy Apparel LLC/Yeezy LC (Yeezy) — an apparel and shoe company owned by Ye (formerly known as Kanye West) — highlights the need for businesses to plan ahead and remain vigilant when promising swift delivery of products. Most importantly, internet retailers must work with manufacturing and shipping partners and ensure that websites and confirmation emails accurately convey information. The Yeezy case provides a cautionary tale for businesses that may promise quick delivery of products that consumers purchase online. Continue Reading Yeezy Settlement Highlights Potential Pitfalls of Shipping Delays Amid the Pandemic

Plaintiffs continue to file website accessibility lawsuits at a rapid pace, but two recent decisions in New York federal court may reduce certain types of filings in that forum.[1] In these cases, both out of the U.S. District Court for the Eastern District of New York, the courts held that websites are not “places of public of accommodation” covered by the Americans with Disabilities Act (ADA) and on that basis, granted the defendants’ motions to dismiss. The decisions cited a recent case from the Eleventh Circuit,[2] but more notably, disagreed with prior New York district court decisions that applied the ADA to websites even when those websites were not paired with a physical location (e.g., a brick-and-mortar store).[3] As we have highlighted, courts across the country have applied varying standards regarding whether the ADA applies to such standalone websites. Certain courts, most notably the Ninth Circuit,[4] require a physical nexus between the website and a physical retail location to invoke the ADA. To be sure, some jurisdictions still favor plaintiffs on this issue, but these two decisions could limit filings in district courts within the Second Circuit and may potentially signal broader changes regarding ADA website litigation. Continue Reading Recent New York Federal Court Decisions Hold that the ADA Does Not Cover Websites

In March, the Supreme Court addressed the test for specific personal jurisdiction in Ford Motor Co. v. Montana Eighth Judicial District Court.[1] The Court considered whether the test’s second prong — which requires that a plaintiff’s claims “arise out of or relate to” the defendant’s forum contacts — requires strict causation.

The Court rejected a strict causation requirement, but the analysis remains fact-intensive. The opinion appears to indicate that defendants may still be able to defeat the contention that the court has specific personal jurisdiction when their intended footprint is regional or their contacts are limited to certain persons or products. We review the Ford decision below and discuss how state courts in Illinois, Texas, and California have applied it. Continue Reading Personal Jurisdiction: State Court Application of Ford Motor Co. v. Montana Eighth Judicial District Court

Over the last few months, you may have seen more e-scooters on the streets as people have felt safer returning to schools and to the office, and have been gathering more frequently with family and friends. E-scooters have many potential benefits: they help alleviate traffic and city congestion by getting gas-powered vehicles off the streets for short trips; they allow people without personal vehicles to work and to access resources beyond their typical geographical limitations; and, amidst environmental concerns, they have become a transportation alternative that reduces air pollution and noise exposure. Continue Reading Rising Regulations as E-Scooters Continue to Hit the Streets

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?

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

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

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

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