Subject: California

California [Again] Confronts the High Cost of Litigation Uncertainty

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The first appellate shoe has dropped in the litigation involving the herbicide Roundup, Johnson v. Monsanto Co., decided July 20, 2020, by California’s 1st District Court of Appeal, Division One. We discussed the verdict and the trial court’s post-trial rulings here, and we now follow through with an update.

Initially, the price tag for allowing questionable science into the courtroom, as measured by this verdict, has been reduced. The court of appeal lowered the compensatory damages award from $39 million to about $10.25 million, concluding the jury had improperly awarded noneconomic damages that plaintiff would likely never suffer. Because plaintiff’s counsel had argued to the jury that plaintiff’s Non-Hodgkins Lymphoma had reduced his future life expectancy to two years, the jury could not award pain and suffering damages beyond that two-year span. And, agreeing with the trial court that constitutional limits required a 1:1 ratio between compensatory and punitive damages, the court slashed the $78 million punitive award to about $10.5 million.

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Ninth Circuit’s Ingredients List Rule Keeps Nestlé in Hot Water with Denial of Nestlé’s Statute of Limitations-Based Summary Judgment Motion

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The Northern District of California recently applied the Ninth Circuit’s ingredients list rule in a putative class action decision. The Court refused to grant Nestlé USA Inc.’s summary judgment motion based on the statute of limitations in a suit involving allegations that Nestlé misleads consumers about the trans-fat content of their Coffee Mate creamer products. The Court held that a triable issue of fact remained because it was not clear when the consumer first learned about the alleged deception.

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Ninth Circuit Confirms That Winning Early Summary Judgment May Be the Ultimate Preemptive Tactic for Beating Class Certification

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The Ninth Circuit has confirmed that a lack of summary judgment evidence linking a product to concrete injury may properly halt a would-be class action in its tracks if a defendant preemptively moves for summary judgment before plaintiffs have the chance to move for class certification.

As we explored in an earlier post, the plaintiffs in Browning et al. v. Unilever United States Inc. represented a would-be class alleging that defendant Unilever failed to disclose that its St. Ives facial scrubs caused “micro-tears” of the skin. In early 2019, the United States District Court for the Central District of California granted summary judgment in favor of Unilever. The court held that the plaintiffs failed to establish the alleged micro-tears constituted a safety hazard, and found that causation was lacking because the plaintiffs presented no evidence that St. Ives — and not some “other products or lifestyle” choices — caused the complained-of skin conditions.

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California Consumers Can’t Escape Federal Jury Trial by Abandoning Available Damages Claims

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The Ninth Circuit affirmed dismissal of a consumer fraud class action pursuing restitution under California’s Unfair Competition Law (UCL) because the plaintiff failed to show she lacked an adequate legal remedy. Sonner v. Premier Nutrition, No. 18-15890 (9th Cir. June 18, 2020). In doing so, the Ninth Circuit resolved a split in the California federal courts regarding whether plaintiffs may pursue solely equitable relief under the UCL, Consumer Legal Remedies Act (CLRA), or False Advertising Law (FAL) when legal damages under the CLRA are available in the same amount for the same alleged harm. This decision has important implications for consumer class actions in California federal courts.

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Northern District of California Excludes Expert Testimony and Grants Summary Judgment in Abilify Case

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Applying basic scientific principles to exclude an expert’s unfounded and unsupported opinions, the U.S. District Court for the Northern District of California has granted summary judgment to the maker of the antipsychotic medication Abilify on the plaintiff’s failure to warn and negligent design defect claims. Rodman v. Otsuka America Pharmaceutical, Inc., 2020 WL 2525032 (N.D. Cal. May 18, 2020).

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Sweet Escape: Tootsie Roll Label Changes Stop Plaintiff’s Slack-Fill Case Without Triggering Catalyst Fee Award

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The Ninth Circuit recently rejected a plaintiff’s request for attorneys’ fees under the so-called catalyst theory where the changes the defendant made in an effort to effectively moot the case were different from the changes the plaintiff had demanded in the litigation. The decision illustrates that a creative fix to an alleged issue may deter a plaintiff’s counsel from pursuing the case without entitling them to a fee award under the catalyst theory.

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