Faegre Drinker on Products

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Articles by Faegre Drinker on Products:


Theoretical Injury Won’t Hack It: Illinois Federal Court Dismisses Jeep Drivers’ Class Action for Lack of Standing

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An Illinois federal judge dismissed a trio of certified putative class actions involving 220,000 Jeep Cherokee drivers from Missouri, Michigan, and Illinois for lack of standing. The decision underscored a key principle: Theoretical injury is not enough for purposes of standing.

In Flynn, et al. v. FCA US LLC, et al., Case No. 15-cv-855, the plaintiffs alleged that defendants FCA US LLC and Harman International Industries Inc. installed defective “UConnect” infotainment systems in Jeep Cherokees and other vehicles which could be hacked by outsiders and subsequently remotely controlled. The class actions arose from a single 2015 hack of the UConnect system executed by two highly skilled researchers in a controlled experiment, as reported by Wired magazine. None of the other “1.2 million subject vehicles with the purported defects” had been hacked.

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Circuit Does Not Quite Clarify the Supreme Court’s Not-Quite-Clarification of “Clear Evidence” in Albrecht

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The U.S. Supreme Court’s 2019 decision in Merck Sharp & Dohme, Inc. v. Albrecht, 139 S.Ct. 1668 (2019), discussed here and here addressed impossibility preemption in label change lawsuits. In Albrecht, the Supreme Court purported to clarify the standard arising from Wyeth v. Levine, 555 US 555 (2009) that a labeling claim against a manufacturer is preempted for “impossibility” if there is “clear evidence” that the FDA would have rejected a manufacturer’s proposed label change. Albrecht explained that impossibility preemption requires the “manufacturer to show that it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug’s label to include that warning.” But Albrecht left unclear what the “clear evidence” showing entails and left open several important questions about how it is to be applied.

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A Failure of Leakage Linkage: The District of New Jersey Sinks a Proposed Class Action under Tennessee and California Laws over Leaky Water Heaters

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A New Jersey federal judge recently applied Tennessee and California law in dismissing a proposed class action concerning allegedly leaky water heater sensors/valves (valves) made by Honeywell International Inc. The decision provides a point-by-point explanation of how superficial allegations of product defect fail to satisfy federal pleading standards under the substantive product liability laws of both states.

In Butera v. Honeywell International, Inc., Civil Action No. 18-13417, the named plaintiffs were a resident of Tennessee and a resident of California whose water heaters began leaking six years after purchase. The plaintiffs filed a putative class action claiming that Honeywell’s hot water heater valves were defective. The plaintiffs alleged that the valves featured a plastic (thermowell) casing that “prematurely erodes” and deteriorates, allowing water leakage. They asserted claims under Tennessee’s Products Liability Act (TPLA) and causes of action under California common law, the California Commercial Code, and California’s Unfair Competition Law statute (UCL), sounding in breach of express and implied warranty, negligence, strict product liability and consumer fraud. Honeywell moved to dismiss for failure to state a claim. The court applied the laws of each plaintiff’s home state to their respective claims.

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“Timing Is Everything” in SNAP Removal

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In general, a defendant may not remove a case to federal court if the action includes a non-diverse defendant or a defendant who is a resident of the state in which the action was filed. This general rule does not apply, however, if the action is removed prior to the non-diverse or forum defendant being served. This procedure, known as “snap removal” has been endorsed by the Second and Third circuits. [See other blog posts on this topic here and here].

Four recent district court opinions address the procedural steps necessary to complete snap removal. In particular, they hold that removal is not complete until the Notice of Removal is filed in both federal and state courts.

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Third Circuit Clarifies Next Steps in Fosamax Decision

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On remand from the U.S. Supreme Court, the U.S. Court of Appeals for the Third Circuit has in turn remanded the case to the district court to determine whether state law claims are preempted by federal law in the 500+ lawsuits pending regarding the medication Fosamax in Merck Sharpe & Dohme v. Albrecht. As previously discussed on this blog in May 2019, the United States Supreme Court held that the issue of federal preemption is one to be decided by the court and not a jury, while somewhat clarifying the “clear evidence” standard governing the analysis.

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Massachusetts Court Upholds Temporary Ban on the Sale of All Vaping Products

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While various states and municipalities grapple with how to address the proliferation of e-cigarette or vaping product use associated lung injury (EVALI) and the related uptick in e-cigarette use among young people, Massachusetts has taken a drastic measure to protect its residents. On September 24, 2019, Massachusetts became the first state to ban the sale of all vaping products after Governor Charlie Barker issued an emergency order that took effect immediately and would remain in effect for four months. The Order states:

“The sale or display of all vaping products to consumers in retail establishments, online and through any other means, including all non-flavored and flavored vaping products, including mint and menthol, including tetrahydrocannabinol (THC) and any other cannabinoid, is prohibited in the Commonwealth.”

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