The Supreme Court decided the closely watched jurisdictional case, Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 143 S. Ct. 2028, 216 L. Ed. 2d 815 (2023). In a series of decisions, the Court has sought to clarify the issues of personal jurisdiction (where a defendant can be sued), and the concepts of both general and specific jurisdiction. In Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011), the Supreme Court explained that a court may only assert general jurisdiction over foreign corporations where “their affiliations with the [forum] State are so ‘continuous and systemati ..read more

We cannot offer any additional commentary because the Firm was part of the team representing defendant, but we wanted to commend to our readers the recent decision, In re Zofran (Ondansetron) Prod. Liab. Litig., 57 F.4th 327 (1st Cir. 2023). The case arises in the MDL related to the FDA-approved drug Zofran, and plaintiffs’ allegations that use during pregnancy caused birth defects. After years of litigation, the United States District Court for the District of Massachusetts, F. Dennis Saylor IV, Chief Judge, 541 F.Supp.3d 164, entered summary judgment for the former manufacturer on the basis ..read more

Worth our note is a recent preemption decision in  In re Fosamax (Alendronate Sodium) Products Liability Litigation, 2022 WL 855853 (D.N.J. March 23, 2022).  The case is noteworthy because it contains a cogent and well-reasoned exploration of many of the issues flowing from the Supreme Court’s decision in Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (U.S. 2019).  Albrecht, of course, clarified some of the language in Wyeth v. Levine, 555 U.S. 555 (2009), particularly with regard to the need in a warnings context that there should be clear evidence that the FDA woul ..read more

Today’s case involves a New York federal court dismissing a proposed class action alleging that the labeling on  “slightly sweet” chai tea lattes misleads consumers into thinking the drinks are low in sugar. Brown v. Kerry Inc., No. 1:20-cv-09730 (S.D.N.Y. 3/7/22). Plaintiff asserted claims under the NY General Business law, and common law negligent misrepresentation, fraud, and unjust enrichment.  Relying on the analysis of the magistrate judge, the district court dismissed all claims. The court noted that above the product’s name are the phrases “Slightly Sweet” and “A Less Sweet T ..read more

A good read on an important topic: my Public Policy Group colleagues Chris Appel and Mark Behrens recently published an article in the latest ABA TIPS section magazine, The Brief, titled “Florida Supreme Court Leads on Apex Doctrine.” Vol. 51, No.2 (Winter 2022), The article discusses a recent amendment to the Florida Rules of Civil Procedure, adopted by the Florida Supreme Court on its own motion, to shield corporate officers from abusive discovery. Our readers may find  the article to be of interest ..read more

My partner Joe Blum and I recently published an article on Mallory v. Norfolk Southern Railway Co. and the General Jurisdiction Consent Battle. We discuss that courts have continued to address the theory that a corporate defendant consents to personal jurisdiction in a state’s courts merely by registering to do business in that state. Such cases raise serious issues of Constitutional interpretation. In the seminal decision International Shoe Co. v. Washington, 326 U.S. 310 (1945), the United States Supreme Court clarified that the Due Process Clause of the Fourteenth Amendment protects the def ..read more

We are approaching the second anniversary of the Covid pandemic, at least measured in the time that many law firms were forced to close offices and have attorneys work from home.  That time has seen saddening numbers on illness and death, amazing scientific breakthroughs by the life sciences industry (including clients of our firm), and challenging legal issues (who knew force majeure would return to conjure up contracts class?). As important as the physical health challenges of Covid — and here’s hoping all our faithful readers have been taking due care — we worry as well about the menta ..read more

For those of our readers with access to the Law360 universe, my partner Hildy Sastre and I just published an article on Important Product Liability Practice Trends To Watch In 2022. In honor of Punxsutawney Phil we venture predictions for the year ahead. The last year has seen several important legal developments relevant to product liability, including in the areas of personal jurisdiction, preemption and class action procedure. This year promises interesting developments in these same subject areas.     ..read more

Cases out of New York involving food products catch our eye these days, as NY threatens to become the new “food court.”  Today’s post involves Eric Parham  v. ALDI, Inc., No. 19 CIV. 8975 (PGG), 2021 WL 4296432 (S.D.N.Y. Sept. 21, 2021). Plaintiff asserted false advertising claims under New York General Business Law (“GBL”) §§ 349 & 350 against defendant pertaining to an unsweetened vanilla almond milk product.  The complaint was dismissed without leave to file a second amended complaint. Plaintiff claimed he purchased an organic unsweetened almond milk purporting to be ..read more

The Class Action Fairness Act has had a noticeable effect on class action practice.  One aspect of CAFA involves the need to assert jurisdictional minimums, as recently reaffirmed by the Eighth Circuit in Penrod v. K&N Eng’g, Inc., No. 20-1355, 2021 WL 4177761 (8th Cir. Sept. 15, 2021). The appeals court concluded that the plaintiffs failed to plausibly allege damages in excess of $5 million, as required for jurisdiction under the Class Action Fairness Act. Plaintiffs are three individuals who purchased oil filters designed by defendant. They sought to represent a nationwide class of ..read more