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

Just over 50 years ago, Congress passed the Multidistrict Litigation (MDL) Act, with the intent to make it more efficient for parties to litigate factually similar but geographically dispersed complex cases. While the statute today is virtually unchanged from the original version, what has changed is the number of cases in MDLs. Ten years ago, MDLs represented only 15 percent of the civil caseload. By 2018, however, that number had more than tripled, and MDLs accounted for almost 47 percent of the total civil caseload in the United States.[1] Product liability MDLs alone make up almost 90 percent of pending MDLs.[2]

As the number of MDLs has grown, so has the focus on the MDL process and whether the process is working. One frequent criticism is that a significant percent – between 30-40 percent – of cases filed in any MDL turn out (often at the settlement stage) to be unsupportable.[3] Why is this the case? Likely in part because the MDL process does not have an effective mechanism to weed out non-meritorious cases early. This post addresses the meritless claim problem and analyzes some proposed solutions.
Continue Reading Meritless Claims Create Inefficiencies in Multidistrict Litigation

In many mass tort cases, and particularly in cases involving exposure to a substance with a long latency period, defendants and plaintiffs must rely on documents created decades ago. That’s challenging, of course, because many of these documents are hearsay and often there’s no one around with personal knowledge of their authenticity or contents. But there is hope for parties trying to admit these documents: they may be able to call on the ancient document hearsay exception.
Continue Reading Time Marches On, Memories Fade, and Witnesses Die: How Lawyers Can Use the Underutilized Ancient Document Hearsay Exception

Long-anticipated changes to California’s Proposition 65 warning requirements took effect on August 30, 2018, through amendments and new rules issued by the California Office of Environmental Health Hazard Assessment. Among other changes, the new rules now (1) require businesses to provide California consumers with product warnings at the time of purchase, including at the time of online purchases; and (2) change the text of the warnings that businesses may use to qualify for “safe harbor” protections. The new warning requirements apply only to products manufactured after August 30, 2018.
Continue Reading New California Prop 65 Warning Requirements: What Businesses Should Consider Now