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

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

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

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

After a very difficult 2020, rapid vaccine development has sparked optimism among the public and in the business community. But as we wrote last week, there’s a long road ahead while infections remain high. Today we look at considerations for a new transition period – vaccines becoming more widely available, but before the country achieves herd immunity. Continue Reading How Companies Can Approach Wider Availability of COVID-19 Vaccines in the Coming Months

As COVID-19 cases have spiked across the country, many businesses have adjusted certain operations with an eye on customer and employee safety, as well as to ensure compliance with recent changes to government orders. Some businesses have faced challenges that they have not seen since last spring. Over the summer, we explained some ways companies could prepare for a potential winter resurgence of the virus. Today we consider how companies may wish to proceed as average daily death totals in the U.S. remain high. Continue Reading Business Considerations in Light of Increases in COVID-19 Cases

Over the last several decades, there have been significant advancements in automotive technology. Today’s vehicles are equipped with more and more sophisticated computer systems than ever before. But as our reliance on technology continues to grow, so does the potential for cybersecurity attacks and resulting litigation. That’s why it’s becoming increasingly important for car manufacturers to pay close attention to the legal landscape. Continue Reading Vehicle Manufacturers Face Cybersecurity Challenges