Faegre Drinker on Products, Author at Faegre Drinker on Products

Faegre Drinker on Products

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Articles by Faegre Drinker on Products:

Vermont Federal Court Orders Ben & Jerry’s “Happy Cows” Lawsuit Out to Pasture

A Vermont federal court dismissed a lawsuit alleging consumer fraud, breach of warranty, and unjust enrichment against Ben & Jerry’s because representations about its dairy from “happy cows” did not run afoul of the law. But the court granted the plaintiff twenty days to amend.

In Ehlers v. Ben & Jerry’s Homemade Inc., et al., Civil Action No. 2:19-cv-00194, a Vermont plaintiff sued defendants Conopco, Inc. d/b/a Unilever United States (Unilever) and its subsidiary Ben & Jerry’s Homemade Inc. (Ben & Jerry’s) on behalf of a proposed class seeking compensatory damages and injunctive relief. The plaintiff alleged that statements on Ben & Jerry’s ice cream cartons and website were materially misleading in violation of the Vermont Consumer Protection Act (VCPA) and constituted breach of an express warranty. The plaintiff also asserted a claim for unjust enrichment.

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FDA Gives Guidance on Reporting Medical Device Shortages

Last week, FDA released guidance for life sciences manufacturers that produce medical devices and components “critical to public health,” including materials that support or sustain life, or are used in emergency care or surgery. If there is an anticipated (or actual) disruption that may result in a shortage based on increased demand or supply-side interruption, the FDA must be notified no later than seven calendar days from the onset. The requirement to notify the Agency applies to a broad range of devices and equipment, and lasts for the duration of the COVID-19 emergency.

The FDA’s guidance on this topic arises out of the March 27, 2020, CARES Act amendments to the Food, Drug and Cosmetic Act. Those updates, codified at 21 U.S.C. § 356j, mirror similar provisions for prescription drug shortages implemented in December 2016. While the statutory provisions contemplate that a device manufacturer would provide notice to the FDA of an anticipated shortage or interruption at least six months in advance, or “as soon as is practicable,” the recent guidance recognizes that this may not be possible under current market conditions.

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Dire Consequences: Avoiding Waiver in Pennsylvania Jury Selection

Practicing law at a socially appropriate distance has forced many litigators to broadly consider the value of face-to-face interaction—and what may be lost in its absence. A recent Pennsylvania Supreme Court opinion highlights the importance of face-to-face interaction between a trial court judge and prospective jurors during voir dire. It also unfolds a cautionary tale about waiver for counsel who would challenge a prospective juror based on actual bias.

In Trigg v. Children’s Hospital of Pittsburgh of UPMC, 2020 WL 1932639 (Pa. Apr. 22, 2020), the Court found a medical malpractice plaintiff waived her objection to the procedure by which the trial court had evaluated an objection to a juror’s actual bias. The plaintiff challenged the juror for cause at trial, but argued for the first time in post-trial motions that the judge did not have the chance to observe the person’s “demeanor” because jury selection was overseen by the court clerk, with the challenge evaluated by the judge based only on the transcript record.

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Rejection of Improper “Attorneys’ Eyes Only” Disclosure Process Relating to Attorney-Client Privilege Challenges

The attorney-client privilege is one of “the most revered” privileges established to protect certain communications. The Pennsylvania Superior Court recently held that it was improper for a trial court to order the disclosure of information, which a party claimed was privileged work product, on an “attorneys’ eyes only” basis to counsel for the opposing party.

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A Warranty Claim by Any Other Name Remains a Warranty Claim – Illinois Federal Court Dismisses Claims Against Aloe Vera Retailer

An Illinois federal court recently reinforced the distinction between a properly plead consumer fraud claim and an express warranty claim merely masquerading as a consumer fraud claim, while granting a defendant’s motion to dismiss.

In Parrott v. Family Dollar, Inc.the plaintiff alleged breach of warranty and consumer fraud claims against Family Dollar, Inc. regarding its aloe vera product. The Hon. Jorge L. Alonso of the Northern District of Illinois unmasked plaintiff’s consumer fraud claim as nothing more than a breach of warranty claim by another name, and subsequently granted defendant’s motion to dismiss.

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Claims That Manufacturers of IV Saline Solution Caused Public Health Crisis Twice Dismissed as Insufficiently Plead by Illinois Federal Court

“In the age of COVID-19 and other public health challenges, supply levels in the medical industry occupy a prominent place in our national consciousness,” an Illinois federal judge noted earlier this month while dismissing a proposed class action against manufacturers of intravenous (IV) saline solution. This marked the second dismissal of the proposed class action because the plaintiffs failed to sufficiently back up antitrust allegations that the defendants conspired to manipulate the supply of the product.

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