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Category Archives: Litigation

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California’s Prop 65: More Form Over Substance

Posted in Food and Beverage, Litigation, Prop 65, State Consumer Protection Laws, State Product Safety Laws, State Regulations, Supply Chain Risk Management, Uncategorized

California’s Safe Drinking Water & Toxic Enforcement Act of 1986 (affectionately known as “Proposition 65”) has long been the subject of discussion, both pro and con. Much of the conversation is on various issues surrounding the enforcement of Proposition 65 (for example, see a prior post here). In March 2017, a California trial court in  Monsanto Co…. Continue Reading

False Labeling Lawsuits Get Hung Up On Faulty Damages Models

Posted in Advertising, Federal Regulations, Food and Beverage, Litigation, Product Class Actions

Some of our colleagues from Mintz Levin’s Class Action Practice, Joshua Briones, Crystal Lopez, and Grace Rosales, recently authored an interesting and timely article in the Bloomberg BNA Product Safety & Liability Reporter. The article examines certain defenses in consumer fraud class actions over product labeling – specifically, defenses based on faulty damages models. Beyond proving the… Continue Reading

BREAKING: COURT RULES POSITIVELY FOR CPSC IN FEDERAL CIVIL PENALTY CASE AGAINST SPECTRUM BRANDS

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), CPSC Civil Penalties, CPSC Enforcement Actions, CPSC Product Recalls, Federal Regulations, Litigation

We do not get many court decisions in the CPSC world, but yesterday we received one.  Last evening, a Wisconsin federal district court essentially held in the Government’s case against Spectrum Brands, Inc. (Spectrum) that (1) Spectrum failed to timely report defective coffee pots in violation of Section 15(b) of the Consumer Product Safety Act… Continue Reading

Stuck in the Middle with the FTC

Posted in Advertising, Federal Regulations, Federal Trade Commission (FTC), Litigation, State Consumer Protection Laws, State Unfair Competition Laws, Supply Chain Risk Management

“…Clowns to the right of me, jokers to the left, here I am…” -Stealers Wheel (1972) Legal actions regarding “Made in the USA” claims, whether prosecuted by the Federal Trade Commission (FTC) or through various state unfair trade practices acts, often settle early in the proceedings.  For example, in 2014, the FTC issued 16 “closing… Continue Reading

California Prop 65: More Unintended Consequences

Posted in Litigation, Prop 65, State Consumer Protection Laws, State Product Safety Laws, State Regulations, Supply Chain Risk Management

Last month, the California Office of Environmental Health Hazard Assessment (“OEHHA”) adopted new Proposition 65 warning regulations.  Much of the discussions regarding these new regulations have centered on the warning requirements that become effective, after an approximately two-year phase-in period, in August 2018. There were, however, amendments to Prop 65 settlement terms, penalty amounts and… Continue Reading

CPSC Chairman Kaye and Commissioner Adler: Current Civil Penalties Approach Works

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), CPSC Civil Penalties, CPSC Enforcement Actions, Federal Regulations, Litigation, U.S. Congress

Yesterday, CPSC Chairman Elliot Kaye and Commissioner Robert Adler issued a lengthy joint statement vigorously defending the Commission’s current approach to civil penalties against various criticisms voiced by Commissioners Joe Mohorovic and Ann Marie Buerkle as well as stakeholders in the business community.  Their overarching message: such criticisms are without merit and are, in reality, a call for lesser penalties; there will be no change… Continue Reading

Eighth Circuit Issues Decision Significant for All Executives of FDA-Regulated Businesses

Posted in Drugs & Cosmetics, Federal Regulations, Food & Drug Administration (FDA), Food and Beverage, Litigation, Manufacturer Product Safety

On July 6, 2016, the Eighth Circuit Court of Appeals issued its ruling in United States v. DeCoster, in which it upheld prison sentences for two executives under the “responsible corporate officer” (RCO) doctrine of liability, also called the Park doctrine, for their role in introducing into interstate commerce eggs that had been adulterated with… Continue Reading

CPSC Civil Penalties: A Divide Along Party Lines

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), CPSC Civil Penalties, CPSC Enforcement Actions, Litigation, U.S. Congress

This article originally appeared on Law360 on June 14, 2016 and provides additional analysis to our prior posts on civil penalties. This past March, while speaking at a Consumer Federation of America luncheon, U.S. Consumer Product Safety Commission Chairman Elliot Kaye stated that he “was pleased to announce” that the agency had secured a $15.45 million civil penalty. Commissioner Joe Mohorovic,… Continue Reading

CPSC Reaches Second Civil Penalty Agreement in As Many Weeks; Sunbeam Products to Pay $4.5 Million to Resolve Late Reporting Allegations

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), CPSC Civil Penalties, CPSC Enforcement Actions, Federal Regulations, Litigation

The U.S. Consumer Product Safety Commission (CPSC) is set to announce yet another civil penalty settlement.  Sunbeam Products d/b/a Jarden Consumer Solutions (Sunbeam or the Company) has agreed to pay a $4.5 million civil penalty to resolve charges that it knowingly failed to immediately report certain defects and an unreasonably risk of serious injury involving… Continue Reading

CPSC Announces Civil Penalty against Teavana; Commissioners Remain Divided on Civil Penalty Enforcement, Calculations, and Transparency

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), CPSC Civil Penalties, CPSC Enforcement Actions, Litigation, U.S. Congress

On May 26, 2016 the U.S. Consumer Product Safety Commission (“CPSC”) announced through a Record of Commission Action (“RCA”) that Teavana Corporation (“Teavana”) has agreed to pay a $3.75 million civil penalty to resolve charges that it knowingly failed to immediately report that certain glass tea tumblers could “explode, shatter or break during normal use.” … Continue Reading

California Plaintiffs Say that Size Matters: Consumer Fraud Class Action Challenges Slack-Fill in Protein Products

Posted in Advertising, Consumer Product Safety, Drugs & Cosmetics, Food and Beverage, Litigation, Manufacturer Product Safety, Private Labeler Product Safety

According to named plaintiffs in a consumer fraud action filed in December in the Southern District of California, size matters when making it comes to making a purchase.  In fact, Plaintiffs claim that the average consumer’s purchasing decision is “heavily dependent” on the size of the package. Plaintiffs have sued Defendant MusclePharm for “intentionally packaging its… Continue Reading

When Does A CPSC Late Reporting Violation First Accrue?

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), Consumer Product Safety Improvement Act (CPSIA), CPSC Civil Penalties, CPSC Enforcement Actions, CPSC Product Recalls, Litigation, Product Liability

This article originally appeared on Law360 on May 12, 2016 and provides additional analysis to our prior post on this subject. After filing a Section 15(b) report and conducting a recall with the U.S. Consumer Product Safety Commission (CPSC), companies frequently ponder whether the CPSC believes the company timely filed its report under Section 15(b) of… Continue Reading

Zen Magnets Claims “90% Victory” Against CPSC in Magnet Recall Litigation

Posted in Consumer Product Safety Commission (CPSC), CPSC Civil Penalties, CPSC Enforcement Actions, CPSC Product Recalls, CPSC Product Recals, Federal Regulations, Litigation, Voluntary Recalls

On March 25, 2016, Administrative Law Judge Dean Metry found that the U.S. Consumer Product Safety Commission (“CPSC”) case counsel did not prove that high powered, small rare earth magnets (“SREMs”) (1) are defective as sold by Zen Magnets (“Zen”); and (2) constitute a substantial product hazard when sold with appropriate warnings, including proper age recommendations (click… Continue Reading

Breaking: CPSC Obtains Record $15.45 Million Civil Penalty in Settlement Agreement with Gree

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), Consumer Product Safety Improvement Act (CPSIA), CPSC Civil Penalties, CPSC Enforcement Actions, Federal Regulations, Litigation

This morning, the U.S. Consumer Product Safety Commission (CPSC) announced that it has obtained a record-breaking $15.45 million civil penalty in a settlement agreement with Gree Electric Appliances of China, Hong Kong Gree Electric Appliances Sales Co. of Hong Kong, and Gree USA Sales of California (Gree) over dehumidifiers sold under 13 different brand names. … Continue Reading

Federal Court Makes No Exceptions for “Commodity Products” and Orders Zen Magnets to Stop Selling Previously Recalled Magnets

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), Consumer Product Safety Improvement Act (CPSIA), CPSC Civil Penalties, CPSC Enforcement Actions, CPSC Product Recalls, CPSC Product Recals, Distributors, Litigation, Supply Chain Risk Management, Voluntary Recalls

There have been many twists and turns over the past four years concerning the CPSC’s regulation of certain high powered, rare-earth magnet sets and its litigation against various entities selling these magnets.  In the latest chapter of the magnets saga, a federal court in Colorado has permanently enjoined Zen Magnets (Zen) from selling magnets purchased… Continue Reading

Lawsuits Against The Honest Company Highlight Continued Risks of “All Natural” Labeling

Posted in Advertising, Litigation, Product Class Actions, State Consumer Protection Laws

Allegations are increasing against The Honest Company, Inc. for false and misleading marketing of its products as “all natural” and “plant-based” when they supposedly contain synthetic ingredients.  The Honest Company sells personal care, cleaning, and baby products in multiple channels including at retail, online and through consumer subscriptions.  The company was co-founded by the actress Jessica Alba… Continue Reading

Another California Dismissal of Proposed Class Action Regarding Disclosure of Forced Labor in the Supply Chain

Posted in Advertising, Food and Beverage, Litigation, Product Class Actions, State Consumer Protection Laws, State Unfair Competition Laws, Supply Chain Risk Management

We recently blogged about a new wave of class action litigation related to California’s Transparency in Supply Chains Act.  In December, Nestlé USA won the dismissal of a complaint against it alleging that the company was “obligated to inform consumers that some proportion of its cat food products may include seafood which was sourced from… Continue Reading

Preemption Defense in the Ninth Circuit Is “Not Dead Yet”

Posted in Food and Beverage, Litigation

Monty Python and the Holy Grail (1975) contained a scene where bodies of plague victims were brought out to the curb for collection via a cart whether or not they properly belonged there.  One living fellow insists on not being dead by exclaiming: “I’m not dead yet.”  Unfortunately for him, his protestations go unheeded and… Continue Reading

Class Action Defense Pick-Off Strategy Shot Down by SCOTUS

Posted in Litigation, Product Class Actions, State Consumer Protection Laws, State Unfair Competition Laws, Uncategorized

Our colleagues Michael Arnold and Gauri Punjabi recently discussed the U.S. Supreme Court’s rejection of the Federal Rule 68 “pick off” strategy on Mintz Levin’s Employment Matters Blog.  We previously blogged about this crafty strategy employed by class-action defense counsel back in November 2014.  Following the recent Campbell-Ewald Co. v. Gomez decision, defense counsel may… Continue Reading

Update: Albany County Legislature Amends Controversial Toxic Toys Law

Posted in Children's Products, Consumer Product Safety, Consumer Product Safety Commission (CPSC), Consumer Product Safety Improvement Act (CPSIA), Federal Regulations, Litigation, State Consumer Protection Laws, State Product Safety Laws, State Regulations

  Last year, we wrote about a growing trend of local jurisdictions regulating children’s products, primarily toys and apparel. One such jurisdiction, Albany County, NY, enacted a far-reaching ordinance, “Local Law J of 2014,” that prohibited the sale of children’s products containing seven chemicals of “high concern” (see previous blog post here). At the time,… Continue Reading

Knockout in Round One: Court Dismisses California Supply Chains Act Class Action

Posted in Advertising, Food and Beverage, Litigation, Product Class Actions, State Consumer Protection Laws, State Unfair Competition Laws, Supply Chain Risk Management

The first round goes to the industry: on December 9, 2015, the Central District of California dismissed the complaint in Barber v. Nestle USA, a key bellwether case in a new wave of class action litigation related to California’s Transparency in Supply Chains Act. The Barber plaintiffs’ theory was that Nestle had violated California’s panoply… Continue Reading

Congress Passes 2016 Spending Bill with Significant Funding for Food Agencies

Posted in Food & Drug Administration (FDA), Food and Beverage, Litigation, Product Class Actions, U.S. Congress

The 2016 Omnibus Spending Bill recently passed by both houses of Congress ushers in important developments in the food safety, labeling, and nutrition spaces.  Following House and Senate votes December 18, it now goes to President Obama for his signature. The bill includes important provisions for the Food and Drug Administration (FDA) and Department of… Continue Reading

What Does GMA’s SmartLabel Initiative Mean for False Advertising Litigation?

Posted in Advertising, Food and Beverage, Litigation, Product Class Actions, State Consumer Protection Laws

On December 2, 2015, the Grocery Manufacturers Association announced SmartLabel, a pioneering technology initiative that gives manufacturers and retailers an important new channel for disclosing information about their products directly to consumers. Through SmartLabel, simply by searching online or scanning the bar code on a product’s label, consumers can readily access a wealth of detail… Continue Reading

Settlement Looms for “Made in USA” Jeans Suit

Posted in Advertising, Federal Regulations, Federal Trade Commission (FTC), Litigation, Product Class Actions, State Consumer Protection Laws, State Regulations, State Unfair Competition Laws

A courtroom battle concerning a manufacturer’s alleged false marketing of allegedly foreign-produced products as “Made in USA” is potentially nearing a resolution.  On November 30, 2015, the lead plaintiff in Paz v. AG Adriano Goldschmied, Inc. et al. asked the court for preliminary approval of a $4 million settlement between class members and defendants Nordstrom,… Continue Reading