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It’s getting more complicated to take and defend depositions because of the COVID-19 pandemic. And now there is a proposed new change to the Federal Rules of Civil Procedure that would require parties to confer before a plaintiff takes the deposition of a corporate representative. Specifically, the Judicial Conference Advisory Committee on Civil Rules has proposed an amendment to Federal Rule of Civil Procedure 30(b)(6) that requires parties to confer in good faith before the deposition takes place about both the topics and the identity of the witness or witnesses.…
Continue Reading What’s Ahead: An Amendment to Rule 30(b)(6) That Requires Parties to Confer

Personal jurisdiction has always been a thorny and fact-specific topic in civil procedure. But the increasing complexity of transactions – development and manufacture of products across many borders, complicated chains of distribution, and the sale of products or services anywhere over the internet – has made it difficult for due process to keep up with technological and business advances. Courts can exercise jurisdiction over defendants only in locations where constitutional due process protections allow. In January, the Supreme Court granted certiorari in two consolidated cases to address the limits of specific personal jurisdiction. See Ford Motor Co. v. Montana Eighth Judicial Dist. Ct., Case No. 19-368; Ford Motor Co. v. Bandemer, Case No. 19-369. These cases likely will clarify the limits of specific personal jurisdiction and whether conduct within the forum state needs to be the conduct that caused a plaintiff’s injury. Oral argument originally was set for April 27, 2020, but has been postponed due to COVID-19.
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Continue Reading Supreme Court Will Address Personal Jurisdiction After State Courts Interpret BMS Decision

Civil litigation is a highly deadline-driven activity – statutes of limitation, discovery responses, notices of appeal. The “use it by a date certain or lose it” nature of all of these deadlines pushes the wheels of justice forward, steadily, if sometimes slowly. Over the past 48 hours, in response to the novel coronavirus, state and federal courts across the country have applied the brakes to the judicial system – canceling appellate arguments, postponing jury trials, and pushing out deadlines, sometimes potentially for months. In the short-term, the orders provide welcome relief for firms and clients coping with office closures and directives in many parts of the country to shelter in place. But the relief in many cases may be incomplete – in some instances, courts lack the power to relieve parties from jurisdictional deadlines. As illustrative examples, here we look at a series of orders, all effective March 17, 2020, from a federal court in Chicago, and from state courts in Illinois, California, and New York.…
Continue Reading Blanket Deadline Extension Orders: Short-Term Relief and Jurisdictional Risks

Law and Justice concept. Mallet of the judge, books, scales of justice.

When plaintiffs sue companies alleging that their websites do not comply with the Americans with Disabilities Act (ADA), courts start by answering two threshold legal questions. Does the ADA apply to websites? And if it does, which websites does it apply to? At least seven federal circuit courts have answered these questions and have reached three different conclusions. Until recently, California courts had provided little guidance. But on September 3, 2019, the Second Appellate District of the California Court of Appeal decided Thurston v. Midvale Corporation (Case No. B291631). Thurston clarifies that commercial websites with a “nexus” to a physical location are subject to the ADA.…
Continue Reading California Court of Appeal Aligns with Ninth Circuit on ADA Website Accessibility Standards

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A U.S. Supreme Court ruling from last summer may have changed the trajectory of a high-profile pending commercial speech case. In National Institute of Family and Life Advocates v. Becerra, the Court modified the traditional commercial speech tests, perhaps placing a greater burden on the government when it seeks to regulate commercial speech. Becerra could influence the D.C. Circuit Court’s decision in Cigar Association of America v. U.S. Food and Drug Administration as to whether FDA-mandated cigar health warnings violate the First Amendment. If cigar regulations are found to violate the First Amendment, it could lead to a new wave of litigation.…
Continue Reading You Can’t Make Me Say It: Does Becerra Make it Harder for the Government to Require Product Health Warnings?

Entities regulated by the U.S. Consumer Product Safety Commission (CPSC) should have greater confidence in sharing confidential business information with the agency following a U.S. Supreme Court decision earlier this year that addressed the U.S. Department of Agriculture’s duty to disclose information in response to a Freedom of Information Act (FOIA) request.
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Continue Reading Private Eyes: When is Company Information Shared with the CPSC Confidential?

U.S. Supreme Court Building in Washington DC USA

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 Bristol-Myers Squibb Limit Courts’ Jurisdiction Over Claims by Out-of-State Class Members?

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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”?

Warehouse logistics is important

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

Warning tape across a bin at an Asbestos clean-up

Earlier this year, the U.S. Supreme Court decided Air & Liquid Systems Corp., et al. v. Devries, 139 S. Ct. 986 (2019), a maritime tort law case in which plaintiffs alleged that asbestos exposure during their Navy service caused them to develop cancer. The Supreme Court held that, in the maritime context, a manufacturer has a duty to warn not only of the manufacturer’s own products, but also of third-party products that are later added to the manufacturer’s product.…
Continue Reading The Rule of Requirement: Supreme Court Adopts New Standard for Manufacturer’s Duty to Warn in Maritime Law