Subject: California

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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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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Biotin Supplement Suit Dismissed on Preemption Grounds

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A California federal judge tossed a proposed class action against allegedly “worthless” biotin dietary supplements on preemption grounds earlier this week, citing the Ninth Circuit’s recent decision in Dachauer v. NBTY, Inc., 913 F.2d 844 (9th Cir. 2019).

In Greenberg v. Target Corp., et al., the plaintiff filed a putative class action alleging that labeling for Target’s Up & Up brand of biotin dietary supplements was misleading under California’s Unfair Competition Law (UCL) and Consumer Legal Remedies Act (CLRA).

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