As part of their ongoing effort to combat misinformation about COVID-19, federal agencies have issued warning letters to more than 150 companies. While companies know that a warning letter is serious and requires immediate attention, perhaps the greater challenge is what often follows: the so-called “piggyback” class action lawsuit.[1] And recently, plaintiffs’ attorneys have gone one step further: they have been filing “piggyback” class actions not against the company that received the warning letter but against competitors that make similar products. Continue Reading A Warning to One, A Warning to All?

We have previously written about various strategies that defendants use to remove cases to federal court (see here, here, and here). Today we are writing about one that defendants should pursue in cases when the tort occurs on federally owned land: “federal enclave” jurisdiction. Though there is not much case law on the topic, at least three circuit courts and many district courts have held that district courts have original jurisdiction over these matters. And it may be the case that a defendant can make a federal enclave argument in conjunction with other arguments for removal or on its own. Continue Reading Federal Enclave Jurisdiction: Strategies for Removal to Federal Court When a Tort Occurred on Federal Land

As COVID-19 lawsuits proliferate, businesses and their counsel should prepare for a battle of the experts on causation when there is no direct evidence that a plaintiff’s injury can be attributed to a certain source. As product liability lawyers know, plaintiffs typically must prove both general causation and specific causation in tort cases alleging exposure to a pathogen. General causation requires expert testimony to show that the exposure to something – here the novel coronavirus – can cause the type of injury – COVID-19 – that affected the plaintiff. Specific causation, however, requires something more. To prove specific causation, plaintiffs must be able to attribute their exposure or injury to a particular defendant. Continue Reading Expert Strategies: Battling Causation in COVID-19 Tort Cases

Much like the rest of the world, the U.S. Consumer Product Safety Commission (CPSC) and its constituents and stakeholders are trying to determine how to operate amid the historic disruptions of the COVID-19 pandemic.

Some CPSC functions – particularly staff-driven operations like recalls – are functioning reasonably well even with a dispersed, telecommuting workforce. But other matters – especially the policy questions that commissioners must answer – present a greater challenge. Nonetheless, the agency is finding ways for its four commissioners to fulfill their responsibilities despite the hurdles. Continue Reading Despite COVID, CPSC Policy Discussions Forging Ahead – Sort Of

Businesses across the country are facing challenges, including lawsuits, as they grapple with how COVID-19 has impacted their operations, work forces, and supply chains. The wave of litigation is rising, and it appears that no industry is immune. Schiff Hardin’s Coronavirus Task Force is publishing this series to identify of-the-moment issues and potential liabilities facing businesses as they begin to re-open, transform their processes, and adapt to the new reality.

As businesses start to reopen across the country, customer-facing companies should consider best practices to reduce the risks of customer and employee exposure to the novel coronavirus, the cause of COVID-19. The right approach will differ based on the type of business, the state and local government guidelines and orders in place, and the geographic region in which the business operates. A hair salon in New York City, for example, will need to take different precautions than an outdoor nursery in Anchorage. Companies should develop a thoughtful plan to reduce the chance of exposure to the virus at a business given the ever-evolving scientific understanding of the disease. Here are five ideas that businesses can use to help ensure that their customers and employees remain safe. Continue Reading Five Approaches to Keep Customers and Employees Safe When Reopening

With the clean beauty movement on the rise, the Federal Trade Commission (FTC) has started to pay closer attention to how companies label and market personal care products. Although the FTC does not have its own definition of the term “organic,” it can bring enforcement actions based on allegedly false or deceptive advertisement of products labelled as “organic” under standards promulgated by other agencies. Continue Reading Not So Organic: The FTC Takes Action Against Personal Care Products

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

With the disruptions wrought by COVID-19, companies are working hard just to keep pace with daily activities. But, as we wrote previously, companies still must meet their regulatory obligations – including obligations to report potential product hazards to the U.S. Consumer Product Safety Commission (CPSC). That may require additional effort in the current environment.

Continue Reading COVID-19 or Not, CPSC Keeps Chugging Along

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.

Continue Reading Supreme Court Will Address Personal Jurisdiction After State Courts Interpret BMS Decision

With consumers attempting to navigate quarantine and “shelter-in-place” orders, businesses that sell basic necessities are facing overwhelming demand.

This new level of demand is placing stress on both businesses that sell basic necessities and their employees. Many businesses are experiencing increased overall customer service inquiries, call volume, and website orders. They are needing to meet increased consumer demand while making unprecedented provisions for their own employees’ health and well-being (which we have written about here and here).

Continue Reading Five Effective Ways Companies Can Communicate with Customers During COVID-19