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.
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Product liability defendants often seek to remove cases to federal court. That’s because federal jurisdiction provides the federal pleading standards, robust expert discovery, efficiency through uniform procedural and evidentiary rules, and often more diverse jury pools. Sometimes defendants can use removal to leverage early case resolution.

But it’s not always clear when a defendant can remove to federal court because the rules vary among the circuit courts, the facts drive the decision, and the case law continues to develop.  This year several cases highlighted the evolving removal landscape and addressed four important questions.
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Most holiday seasons, an “it” toy stands at the top of children’s wish lists. With this instant rise in popularity frequently comes a corresponding rise in consumer complaints. Years ago, the consumer complaints might get some media attention—but that attention usually focused on the consumer competition to acquire the demand-exceeds-supply product.

Now, people turn to social media to detail in words, pictures, and video any perceived problem with their much-hyped purchase. This contributes to a manufacturer’s nightmare, trying to quickly determine which complaints are just disappointed expectation and which might actually be a consumer safety issue. Can manufacturers likewise use social media to help calm the storm?
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Last week, the US Supreme Court ruled that an offer of judgment under Federal Rule of Civil Procedure 68 made to the lead plaintiff in a class action lawsuit, in addition to a separate free-standing settlement offer in the same amount, does not render the lawsuit moot.

In Campbell-Ewald Co. v. Gomez, No. 14-857, 2016 WL 228345 (U.S. Jan. 20, 2016), Jose Gomez filed a class-action lawsuit seeking damages under the Telephone Consumer Protection Act as a result of unwanted text messages he and others received from Campbell-Ewald Company.  Before Gomez had filed his motion for class certification, Campbell made an offer of judgment to him under Federal Rule of Civil Procedure 68 which would have satisfied his personal claim entirely.  Gomez allowed this offer to lapse after 14 days, as specified by the rule.  Campbell then moved to dismiss the case, claiming that no controversy remained after its offer provided Gomez with complete relief.  Both the District Court and the Ninth Circuit Court of Appeals disagreed with Campbell.
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The cannabis industry is taking a hit.  The nation’s first cannabis product liability lawsuit was filed in Colorado and challenges the cannabis industry’s production process.

Flores v. LivWell Inc., was filed by two marijuana users alleging that the fungicide Eagle 20 was intentionally applied to thousands of marijuana plants at a Denver facility. Plaintiffs Brandan Flores and Brandie Larrabee are seeking class-action status contending that LivWell Inc. (LivWell), one of the largest cannabis growers in the state of Colorado, sold marijuana sprayed with Eagle 20 to medical and recreational customers without adequately warning consumers of the risks associated with Eagle 20. Neither plaintiff alleges they were sickened from ingesting marijuana they purchased at LivWell.
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The Supreme Court recently granted certiorari in Spokeo v. Robins, a case that has the potential to redefine standing in federal court. The Ninth Circuit’s February 2014 decision permitted plaintiff Thomas Robins to establish standing under the Fair Credit Reporting Act (“FCRA”) with nothing more than a speculative injury. This contravenes Supreme Court precedent, which finds standing when a plaintiff suffers a harm that is actual, distinct, palpable, and concrete; attenuated and hypothetical injuries do not constitute an injury-in-fact. The implications of the Ninth Circuit’s holding in Spokeo v. Robins have grabbed the attention of companies in nearly every industry. Their concern, as expressed by the U.S. Chamber of Commerce – granting standing to plaintiffs who have not suffered an injury-in-fact will open the flood gates to no-injury class actions brought under statutes that authorize a private right of action. But, in truth, the implications to businesses could extend beyond this.
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The FDA is expected to announce a final rule that could effectively eliminate most trans fat from food in the United States.  In 2013 the FDA announced its preliminary finding that partially hydrogenated oils (PHOs) – – the source of most trans fatty acids in American’s foods – – are not generally recognized as safe (GRAS) for use in any food.  If the FDA makes final its preliminary finding, PHOs will no longer enjoy GRAS status and will be subject to greater scrutiny by the FDA.

The regulation of trans fats can be traced back to 1999 when the FDA first proposed that manufacturers be required to declare the number of grams of trans fat on their nutrition labels.  Due to growing public health concerns, the FDA finalized this rule in 2006.  That rule resulted in reduced amounts of trans fat in food products.  A final rule that strips trans fat of GRAS status would subject food products with trans fat to greater scrutiny and may effectively eliminate all trans fat from those products.
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The Seventh Circuit has struck down a common feature of preliminary approval orders of federal class action settlements. The Seventh Circuit held that a federal court may not preliminarily enjoin class members from prosecuting related state lawsuits while the court decides whether to give final approval to the class settlement.  Adkins v. Nestlé Purina PetCare Co., No. 14-3436, 2015 WL 864931 (7th Cir. Mar. 2, 2015).

These types of preliminary injunctions are commonly used in a broad range of consumer and other class settlements, and they are particularly important when a defendant is facing several competing class actions on the same issue.  But the Seventh Circuit held that these injunctions violate the Anti-Injunction Act, 28 U.S.C. § 2283—even though the court acknowledged that federal settlements “may well collapse” if state actions go to judgment before federal courts can approve the settlements.    
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In California, a federal judge approved a class certification motion in a suit against ConAgra Food Inc. for alleged mislabeling of its Wesson oil products.  The dispute is based on allegations that ConAgra mislabeled oil as “100% natural.”  Plaintiffs argue the oil is not natural because it contains genetically modified ingredients. Further up the coast in Oregon, voters will decide this fall whether to require genetically modified food sold in the state to be labeled as such.  This issue has come up in several states, including Washington and California, where voters have rejected similar proposals in recent years.

The California case, In re: Conagra Foods Inc., includes certified classes of consumers from California, Colorado, Florida, Illinois, Indiana, Nebraska, New York, Ohio, Oregon, South Dakota, and Texas.  U.S. District Judge Margaret M. Morrow will allow plaintiffs to pursue claims brought under the states’ various consumer protection statutes, but she will not allow an injunctive relief class to proceed.
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