Harris v. Quinn

Posted on July 2, 2014 08:52 by Tim Coates

In Harris v. Quinn, 11-681, the United States Supreme Court, by a 5-4 vote, struck down an Illinois law requiring home healthcare workers paid with Medicaid funds to belong to a public employee union or pay an agency fee equivalent to union dues to support the union. The court held that requiring the home healthcare workers to belong to, or support a public employee union violated their rights of free association and expression under the First Amendment in that it required them to fund and support union activities, including lobbying activities with which they might not agree. 

In so holding, the court distinguished its prior decision in Abood v. Detroit Board of Education, 431 US 209 (1977) where the court had held that public employees could be required to pay union dues, even if not union members, so long as they were provided with a refund of the union dues reflecting an amount that had been expended by the union of for lobbying activity, as opposed to activities that benefit all workers, such as negotiation of wages and working conditions. In Harris, the court emphasized that unlike in Abood, the home healthcare workers at issue were essentially not public employees at all, with the state merely providing their wages via Medicaid, but with individual employers supervising their work and determining their working conditions on a day-to-day basis. The court concluded that the state could not demonstrate a compelling interest served by the mandatory union fee provision sufficient to offset the significant imposition on the home healthcare workers’ rights to free speech and association under the First Amendment. Since the union provided little more than wage and benefit negotiation, with the balance of work-related conditions left to individual employers of the home healthcare workers, the state was unable to show that dues paid by willing union members were insufficient to fund the relatively limited union activities that benefitted all home healthcare workers. As a result, there was no justification to impinge on the First Amendment rights of non-union members by requiring them to fund the union and its activities.

Harris is significant for two reasons. First, it may spawn challenges to similar mandatory agency fees paid by non-member public employees to unions, with the success of any challenge likely centering on the degree to which the government employer actually controls the day to day activities of the individual employee, and hence the degree to which the unions activities actually benefit the non-member employees. Second, the majority all but overrules Abood, making it clear that its prior decision rests on shaky grounds, thus inviting an outright challenge to Abood which would jeopardize the ability of public employee unions to compel non-members to fund any aspect of union activity, including collective bargaining and other measures that directly concern working conditions and wages. If Abood is eventually overruled, it would be a substantial blow to public employee unions.

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In what an Illinois Appellate Court described as a case of first impression in Illinois, the court reversed the Cook County asbestos judge’s dismissal of a direct claim by an employee against a former employer for a personal injury allegedly caused by inhalation of asbestos fibers during his employment. See Folta v. Ferro Eng'g, 2014 IL App (1st) 123219 (Ill. App. Ct. 1st Dist. June 27, 2014). James Folta allegedly inhaled asbestos fibers between 1966 and 1970 at Ferro Engineering, and was diagnosed with peritoneal mesothelioma 41 years later. The Illinois Workers Compensation Act has 25-year-since-exposure statute of repose (820 ILCS 305/6(d)), and the Worker’s Occupational Disease Act has a 3-year statute of repose for asbestos-related diseases (820 ILCS 310/1(f)) (a worker is entitled to compensation only if disablement occurs within three years of the worker’s last exposure).   

The First District (Cook County, Chicago, Illinois) focused on one of the four recognized exceptions to the exclusive remedy provision of the Acts, namely that exclusivity does not extend to claims that are “not compensable under the Act.”  See Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 463 (1990).  The other three exceptions are: (1) the injury was not accidental; (2) the injury did not arise from his employment; and (3) the injury was not received during the course of employment.  See id.  The court rejected the defendant’s proposed interpretation of the term “non-compensable” as being “non-compensable only if it does not rise out of and in the course of employment” because such an interpretation would render the other recognized exceptions meaningless.  

The court relied in part upon a 5th District (covering Madison County) case that held that the claimed injury was non-compensable and not barred, there, a claim for emotional suffering without medical or hospital bills, or lost work.  See Toothman v. Hardee's Food Sys., 304 Ill. App. 3d 521 (5th Dist., 1999).  In Toothman, as in Folta, the court rejected the defendant’s argument that compensability meant “arising out of or in the course of” one’s employment.  

Folta also relied upon Schusse v. Pace Suburban Bus Div. of the Reg'l Transp. Auth., 334 Ill. App. 3d 960 (1st Dist., 2002), where an employee brought a negligent spoliation claim against his employer.  That decision was based upon the distinction under Illinois law between damages for spoliation and damages for the underlying injury, where the spoliation damages were not recoverable under the Acts.  

The Folta court’s definition of “compensability” focused solely on the issue of recoverability, which is evident in the court’s most succinct holding, that Plaintiff’s injury was “quite literally not compensable under the Act, and that all possibility of recovery is foreclosed because of the nature of Plaintiff’s injury.”  Folta, 2014 IL App (1st) 123219, at 14.  The court rejected the defendant’s claim that this decision would lead to obscure results where, e.g., employees could bring a direct action against an employer in every case in which the Industrial Commission denied the workers compensation claim, explaining that the decision was limited to circumstances in which a potential claim under the Act was time-barred before the claimant learned of the claim.

Missing from the court’s opinion is any differentiation of the types of injuries and damages that the Acts were originally meant to address.  For example, in Toothman, the Court held that the claim was not compensable because it was not the kind of injury that the Act recognized i.e., it was not a claim for personal injury damages supported by medical and hospital bills or other concrete damages.  The same was true in Schusse, where the court explained: “Generally, only medical bills and temporary or permanent, partial or total disability are compensable under the Act,” (citing 820 ILCS 305/8) and that spoliation damages were different in kind, and therefore, not “compensable.”  See Schusse, 334 Ill.Ap.3d at 968 (explaining that “the spoilation of evidence alleged in this case did not generate medical bills, require plaintiff to take time off from work, or seek work-related medical treatment”).  The Folta court also did not address the potential scenario where an employer elects to forego the affirmative defense of either statue of repose in any forthcoming or pending Workers Compensation claim, thus potentially making an otherwise non-compensable claim compensable.  

The import of this decision, at least absent further appellate review, is manifest, and alters the legal landscape with respect to direct claims against one’s employer for asbestos-related injuries, which frequently do not manifest until all relevant statues of repose have elapsed.  Such direct claims were consistently barred in both Cook County and Madison County Illinois by the judges presiding over the respective asbestos dockets. This dramatic change portends a massive influx of new case filings and significant motion practice by current Illinois plaintiffs to seek leave to amend their pleadings to add direct employers. This, in turn, may create a whole new subset of newly-invigorated legal and factual analyses related to each employer’s relative role in the causation of the claimed injury, which plaintiffs will now be obligated to address.  As of this posting, the defendant in Folta has not moved for leave to appeal to the Illinois Supreme Court.  

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Categories: Asbestos | Law Suit

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Pregnancy Discrimination Act:
Young v. UPS. The issue in Young is " Whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

In Dart Cherokee Basin Operating Company, LLC v. Owens, the issue is "Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or whether it is enough to allege the required “short and plain statement of the grounds for removal.”

Appelability of the dismissal of an action consolidated with other suits:
In Gelboim v. Bank of America Corporation, the issue is "Whether and in what circumstances the dismissal of an action that has been consolidated with other suits is immediately appealable." 

In Integrity Staffing Solutions v. Busk, the issue is " Whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act."

Labor Law:
In M&G Polymers USA, LLC v. Tackett, the issues are: "(1) Whether, when construing collective bargaining agreements in Labor Management Relations Act (LMRA) cases, courts should presume that silence concerning the duration of retiree health-care benefits means the parties intended those benefits to vest (and therefore continue indefinitely), as the Sixth Circuit holds; or should require a clear statement that health-care benefits are intended to survive the termination of the collective bargaining agreement, as the Third Circuit holds; or should require at least some language in the agreement that can reasonably support an interpretation that health-care benefits should continue indefinitely, as the Second and Seventh Circuits hold."

Judicial enforcement of the EEOC's mandatory duty to conciliate:
In Mach Mining v. EEOC, the issue is: "Whether and to what extent a court may enforce the Equal Employment Opportunity Commission's mandatory duty to conciliate discrimination claims before filing suit."

Juror Dishonesty:
In Warger v. Shauers, the issue is "Whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty."

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On May 29th the Illinois Supreme Court adopted rules relating to the discovery of electronically stored information for use in state court proceedings. The rules go into effect on July 1st.  Here is the link to an article which summarizes Illinois' new ediscovery rules.  This article will appear in the next edition of the Illinois Association of Defense Trial Counsel's quarterly publication. 

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Categories: Electronic Discovery

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How many of us have admitted that our phone is our life?  Well, on June 25, 2014, the United States Supreme Court agreed, and, relying on that phrase, held that search of a cell phone generally requires a warrant.  See Riley v. California, June 25, 2014, 573 U.S. ____ (June 25, 2014).

The Riley decision involves appeal in two related cases.  First, in Riley v. California, David Riley was stopped for having an expired registration, and in the course of the stop, the officers learned his driver’s license had been suspended.  The officer impounded the vehicle, according to department policy.  In the course of another officer’s inventory search of the car, the officer found two concealed and loaded handguns.  Riley was then arrested for possession of concealed and loaded firearms.  When the officer searched Riley, properly, incident to the arrest, he seized a smart phone from Riley’s pants pocket.  The officer accessed information on the phone, and saw photographs and videos which indicated Riley was a member of the “Bloods” street gang.  Contacts also had initials by them, indicating membership in the gang.  More importantly, officers saw a photograph of Riley standing in front of a vehicle that police believed was connected to a drive-by shooting.  Based on those photographs, at least in part, Riley was arrested for, and convicted of, firing at an occupied vehicle, assault with a semiautomatic firearm, and attempted murder.  His sentence was enhanced because he was convicted of committing those crimes for the benefit of a criminal street gang.  Riley moved to exclude the cell phone evidence, but the motion was denied, and the California Supreme Court affirmed that denial.

In the second case, United States v. Wurie, Brima Wurie was observed making a suspected drug sale from his vehicle.  When he was taken to the police station after being arrested, officers confiscated two “flip phones”.  Shortly after arriving at the station, one of the phones began repeatedly ringing from a number identified as “my house.”  The officers opened the phone and saw a photograph of a woman and child on the wallpaper.  Officers pressed two buttons only, and were able to obtain the phone number for “my house.”  Using an on-line directory, the officers found the associated physical address and went to the apartment building.  Officers secured the apartment and waited for a warrant to search it.  In searching, they located crack cocaine, firearms, and ammunition.  Wurie moved to exclude the evidence found in the search because it was obtained by a warrantless search of the cell phone.  The district court denied the motion, but the First Circuit Court of Appeals reversed.

The Court analyzed the question of whether a warrant was necessary before a search of cell phone data takes place using much of its previous case law discussing searches incidental to arrest, including Chimel v. California, 395 U.S. 752 (1969); United States v. Robinson, 414 U.S. 218 (1973); and Arizona v. Gant, 556 U.S. 332 (2009).  After a review of those cases, the types of searches involved in them, and the principles regarding warrantless searches, the Court stated, “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”

The Court began its analysis by reviewing that familiar case law to remind everyone of the purposes for the exception to the rule stated in the Fourth Amendment requiring warrants – officer protection and to prevent the destruction of evidence.  Looking at data within the cell phone did not meet either of those purposes.  Data itself does not constitute a weapon.  (However, the Court noted the officer may search the physical aspects of a phone to ensure no hidden razors or weapons are present to ensure the item itself does not constitute a weapon.)

The Court also recognized that destruction of data could, conceivably, be a concern.  Once officers take possession of the cell phone, though, the suspect/arrestee has no more ability to delete incriminating data.  Additionally, if officers have a reasonable and legitimate concern that someone else may remotely wipe date from the phone, once the officer properly takes physical possession of the cell phone (for instance, as property inventoried after an arrest), the officer can remove the battery from the phone or take other steps to prevent a remote wipe of data, including use of a “Farady bag” in which to place the phone.

The Court stated that “exigent circumstances” could still be applied, if such existed, to search data.  “To the extent dangers to arresting officers may be implicated in a particular way in a particular case, they are better addressed through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances.”  Exigent circumstances can include situations in which “police are truly confronted with a ‘now or never’ situation,’ – for example, circumstances suggesting that a defendant’s phone will be the target of an imminent remote-wipe attempt.’”  Also, if data from a phone is needed to assist persons who are seriously injured or are threatened with imminent injury, the exigent circumstances exception would apply.  One example used was the potential of a remotely accessed bomb.  Officers must ensure, though, that the circumstances are objectively reasonable under the Fourth Amendment.

Additionally, the Court found that cell phones contain an implicit concern of privacy, far beyond a cigarette pack in a pocket (Robinson) or even a car, wallet, or purse, both because of the amount of data that can be contained on them and because of the type of personal data (health information; banking records; telephone records; photographs; location tracking information) that is routinely stored in a cell phone.  The court analogized the search of a cell phone to the search of a house, stating “a cell phone search would typically expose to the government far more than the most exhaustive search of a house[.]”  (emphasis in original).  The Court also noted that it is difficult to tell what information is stored directly on the phone, as opposed to “in the cloud.”  Under no circumstance could a search of data “in the cloud” be done without a warrant.  Therefore, searching data on a cell phone could not be done without the potential violation.

Finally, the Court issued its decision, noting its preference to provide clear guidance to law enforcement.  However, the Court emphasized that this holding was not that data on phones was immune from search.  Instead, a warrant is generally required before the search of a cell phone, even if seized incident to arrest.

As a training tool, this case is helpful.  First, it gives a clear-cut rule officers should find easy to follow.  Additionally, its review of how various cases should be applied provides guidance for training officers on the extent to which searches incident to arrest can be performed.  Finally, rather than a three- or four-part test, we have a simple rule.  While some people may not like it, the rule is clear and easy to follow.  Get the phone.  Hang onto it.  Get a warrant.

Stacy Moon is a shareholder at F&B Law Firm PC in Huntsville, Alabama, where she practices in the areas of municipal liability, employment law, commercial litigation, construction litigation, and personal injury defense. She is a past chair of the DRI Lawyers’ Professionalism and Ethics Committee and also active in the DRI Law Practice Management, Employment Law, Commercial Litigation, Governmental Liability, and Construction Law Committees.

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Categories: Civil Rights

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Three recent decisions from two judges in the Northern District of California provide us with a lot of information regarding where food labeling cases are headed in terms of class certification strategy. Notably, two of the decisions are from Judge Lucy Koh and granted class certification.  Of course, these losses from the defense perspective are disappointing, but it is important to understand them in order to develop effective defense strategies. The third decision is from Judge Charles Breyer and denied class certification. That opinion shows us strategies that work from the defense perspective. In addition, however, the opinion is also interesting because Judge Breyer recognizes the Northern District of California’s status as the epicenter of these cases and because he often expressly acknowledges that his reasoning differs from Judge Koh’s.  So bear with me as we go through three important class certification decisions before identifying some best practices for defendants in these types of claims.

Two Losses for the Defense, but Important Lessons to Learn.

In Werdebaugh v. Blue Diamond Growers, No. 12-CV-2724-LHK (N.D. Cal. May 23, 2014), Judge Koh granted class certification when the plaintiff alleged that he purchased the defendant’s almond milk that allegedly had misleading labels.  That plaintiff contended that using “evaporated cane juice” rather than “sugar” on the label was deceptive and that the phrase “all natural” was deceptive because the products contain potassium citrate.  I won’t address every aspect of this decision but will focus on the ones of most interest to defendants.

That plaintiff had standing to challenge those aspects of the labels because he contended he would not have purchased the almond milk had he known about the misbranding. He contended that the “all natural” label was a substantial reason why he bought the product as well. As to “evaporated cane juice,” Judge Koh distinguished to earlier decisions from the Northern District of California and found that it was plausible for this plaintiff to contend that he did not understand what “evaporated cane juice” meant when he purchased the products. At that point, the court turned to the requirements of Rule 23.

In a minor victory for the defendants, the court refused to certify and injunctive relief class under Rule 23(b)(2). That plaintiff did not allege or even attempt to establish that he intends or wants to purchase these almond milk products in the future. That meant there was no likelihood of future injury to him that could be redressed through injunctive relief.

Turning to the requirements of Rule 23(a), Judge Koh rejected the defendant’s argument that the class was not ascertainable. She concluded that a class is ascertainable so long as it is defined with “objective criteria” and if it is administratively feasible to determine whether a particular member is in the class. Class membership hinged on objective criteria, i.e., purchasing the almond milk products during the class period.  While other courts have held that a class is not ascertainable when there are no corporate records to identify product purchasers or when the purchases are so small that consumers are not likely to have records of them, Judge Koh rejected that approach. She relied on the facts that all purchasers of the almond milk products are within the class definition and all cartons of the products or the alleged mislabeling.  Moreover, “[t]he class period here is also far shorter than in [an earlier case], and inviting plaintiffs to submit affidavits attesting to their belief that they have purchased a carton of Blue Diamond almond milk in the past several years is much likelier to elicit reliable affidavits then asking potential class members to recall whether they had smoked 146,000 of a certain cigarette over the course of several decades.”  [Slip Op. at 20]  

As to Rule 23(b)(3), the court refused to certify a nationwide class because it concluded that the law of each consumer’s state of residence would apply to his or her claims. Thus, it limited the class to California consumers. 

A substantial issue was whether the plaintiff presented a damages model under California consumer protection statutes that is consistent with his liability case. The plaintiff relied on the testimony of an economist, Dr. Oral Capps, to present three damages models. The court rejected two of them. First, a full refund model was not appropriate because consumers received benefits from the almond milk even if it was mislabeled. Second, the court rejected a price premium model in which Dr. Capps tried to compare the price of the Blue Diamond products to allegedly comparable products that did not have the challenged label statements. He planned to attribute the entire price difference between the Blue Diamond products and the “comparable” products to the labeling. That theory also ignored, however, that the “comparable” product also contained potassium citrate, so it was not an appropriate comparator.  Last, this price premium theory also could not account for any other differences between the Blue Diamond products and the “comparable” products that may lead consumers to pay different prices (e.g., brand loyalty, generic vs. brand name).

The court, however, accepted Dr. Capps’ third theory, a regression model. He contended that he could isolate the relationship between a dependent variable (i.e., the price of Blue Diamond almond milk) and other variables (e.g., the alleged mislabeling). Plaintiff’s expert contended he could control for regional price differences, and Blue Diamond did not introduce any evidence about how regional price differences would affect regional price changes.  And it is that price change that the regression analysis purports to measure. That is, what price movement (if any) occurred after Blue Diamond stopped using the challenged labels? Under this theory, by ostensibly controlling for all other factors that could account for the change, all of the resulting change would be attributable to the labeling.

The court did not require the plaintiff to present a regression analysis that actually works at the class certification stage rather, it only required whether he established a workable model. Indeed, Dr. Capps had yet to run his regression analysis at the time of class certification. While two other courts had excluded Dr. Capps’ testimony in prior cases, Judge Koh found it important that Blue Diamond did not question the tool of regression analysis itself.

The second decision from Judge Koh is Brazil v. Dole Packaged Foods, LLC, No. 12-CV-01831-LHK (N.D. Cal. May 30, 2014).  That plaintiff challenged the “all natural” labeling on 10 packaged fruit products.  Each product contains both ascorbic acid (a naturally occurring form of Vitamin C) and citric acid (a natural preservative derived from citrus).  Coming only a week after the Werdebaugh class certification decision, it is not surprising that the analysis in Brazil is similar.  Once again, Judge Koh rejected the defendant’s ascertainability argument. Because the alleged misrepresentations appeared on the product packaging, there was no concern that the class includes individuals not exposed to the alleged misrepresentations. She also rejected the argument that the lack of company records identifying product purchasers affected ascertainability.  Judge Koh seemed satisfied that every purchaser received the same alleged misrepresentations and the class was limited to only 10 products in a specified timeframe.

The court certified a nationwide injunctive relief class under Rule 23(b)(2), rejecting the notion that the plaintiff’s damages were not incidental to the injunctive or declaratory relief requested. And although this plaintiff said he stopped buying Dole products months ago, he said he would remain willing to buy them now. That sufficed under Judge Koh’s analysis.

As to the Rule 23(b)(3) class, the court again refused to certify a nationwide class based on choice of law issues. These plaintiffs also used Dr. Capps as their damages expert, so the court once again rejected a full refund model and price premium model. The court accepted the regression analysis, however, just as it had in the earlier case. Dole’s position had another wrinkle because it had refused to produce certain economic data, contending that was not needed for class certification. Judge Koh viewed that as a bit of gamesmanship. She would not allow Dole to challenge Dr. Capps’ failure to actually create a working regression model when Dole had refused to provide the economic data he contended he needed for that process.

A Defense Victory Quickly Follows.

Soon after Judge Koh’s class certification decisions, Judge Breyer denied class certification in Jones v. ConAgra Foods, Inc., No. C 12-01633 CRB (N.D. Cal. June 13, 2014).  As he noted, “[t]his district has seen a flood of such cases, in which plaintiffs have challenged, with varying degrees of success, marketing claims on everything from iced tea to nutrition bars. This Order does not—and, given their multiformity, could not—speak to the merits of all such cases.”  [Slip Op. at 1 (footnote omitted)]  So it seems Judge Breyer may not be impressed with Northern District of California’s “food court” moniker.

These plaintiffs challenged a variety of Hunt’s tomato products labeled as “100% Natural” and “free of artificial ingredients & preservatives” because they contained citric acid and/or calcium chloride. They also challenged PAM cooking spray labeled as “100% natural” because that spray contains a propellant that is not natural. Last, they challenged a variety of Swiss Miss cocoa products labeled as being a source of antioxidants.

The opinion nicely analyzes standing and typicality, exploring different plaintiffs’ deposition testimony regarding why they bought certain products, what they read on the labels, what was important to them, and what they admitted was not deceptive. I want to focus on different portions of the decision in this article, however, so I will not discuss standing and typicality in detail.

Judge Breyer uses a more stringent ascertainability standard than Judge Koh. The plaintiffs proposed having class members identify products they purchased with photographs or affidavits/declarations. The court found it infeasible to believe that consumers would recall such purchases accurately, particularly considering that literally dozens of varieties of different can sizes with different ingredients existed during the class period.  While this is a useful conclusion for defendants, plaintiffs will try to distinguish this case by noting that the products’ ingredients and labels varied during the class period. 

Judge Breyer continued rejecting class certification arguments with his Rule 23(b)(2) analysis. Each of the named plaintiffs disavowed any intent to buy the challenged products in the future. That was fatal to any requested injunctive relief.

Moving to Rule 23(b)(3) predominance was lacking because of different labeling statements and, more importantly, the plaintiffs’ failure to show uniform understandings regarding the challenged labels. In this instance, the plaintiffs used an expert who opined that the labeling statements were material. That expert, however, did not survey consumers and relied on circular reasoning. That is, she opined that the statements were material because defendants would not have included them on the labels if they were not. That did not suffice for the court. The lack of any established meaning of the word “natural” when used on food labeling truly undermined these claims. Plaintiffs’ expert did them no favors by failing to survey consumers and by admitting that some consumers do not read labels, do not care about labeling statements, and would purchase products regardless of their labels.

In the next collision with Judge Koh’s decisions, Judge Breyer rejected the same Dr. Capps’ regression analysis as Judge Koh had accepted. He believed there simply was no way to control all of the variables to conclude that the price difference was attributable to the labeling. Moreover, Dr. Capps could not identify an adequate compared for product. And, absent an accurate way to identify what each class member paid, no damages analysis could succeed. In essence, Judge Breyer would not accept the notion that Dr. Capps theoretically could create a feasible damages model using regression analysis. Rather, he wanted adequate proof that Dr. Capps had done so at this stage.

How These Decisions Guide Defendants’ Strategy. 

Using Experts.

Neither the Werdebaugh nor Brazil decisions granting class certification mentions if the defendants presented survey evidence about consumers’ understandings of “all natural,” either generally or relating to the challenged ingredients specifically (which all are naturally occurring).  These food labeling claims typically rely on California consumer protection laws.  In broad strokes, those laws require that the label be likely to mislead the reasonable consumer.  The difficulty for judges and the parties is that phrases such as “all natural” do not have a set definition.   Class action plaintiffs will use this vagueness to argue that the potential for misleading consumers is a question of fact for the jury to resolve.  Defendants in these cases will benefit from hiring experts to survey consumers to determine their understandings of the phrases at issue.  If substantial percentages of consumers do not share the plaintiff’s understanding of a phrase or disagree with it, it should be untenable to contend that the a cohesive, class-wide understanding of the phrase exists.  The label will not deceive the hypothetical “reasonable consumer.”  Such surveys may also help establish that consumers bought the products for different reasons (e.g., brand loyalty, had a coupon, wanted to try something new).  

While parties to these cases are using economists and other damages experts, retail grocery pricing experts/consultants may be useful, too.  Such experts could be outside consultants who advise retailers on pricing strategy or former pricing analysts for retailers.  Such experts may help establish that too many independent variables affect retail pricing for a regression analysis to work.  In addition to factors mentioned in the cases discussed above, several other variables exist.  For example, an individual store may need to reduce the price of a certain product due to inventory control issues during a particular time frame.  Similarly, certain consumers may pay different prices for the same product based on membership in a retailer’s “club card” program.  In fact, those types of discounts may result in the challenged product having a lower price than the comparator product at a specified time.  Those types of discounts may be the motivating factor for consumers as well.  That is, if they can purchase the challenged product at a lower price due to a “club card” membership, they may have done so.  Those types of consumers would not be misled by any labeling.

Another expert to consider is a food scientist.  This type of expert would explain that ingredients such as ascorbic acid and citric acid truly are natural ingredients, whether created in a laboratory or in nature.  There is no chemical difference.  Similarly, she can explain that research confirms the safety of genetically-modified organisms (another frequent target of such “all natural” litigation).  In theory, this type of evidence arguably relates to the merits and not class certification.  But you always want to give your judge the comfort of knowing that she is not allowing truly bad conduct to go without a remedy if she refuses to certify the class.  

Disproving Your Plaintiffs’ Allegations.

It also is important to evaluate your plaintiff’s purchasing habits and history.  As we saw in Jones, those defendants effectively used testimony from the plaintiffs to defeat class certification. Explore whether they buy other products with similar ingredients and whether they have continued to buy the challenged product even after filing suit.  See if your plaintiff will admit that the labeling statement was not important to her.    

Many grocery retailers offer membership programs to customers.  Typically, these programs track purchasing history at an individual level so the retailer may direct specific advertising and offers to that customer.  Online retailers such as Amazon likewise track customers’ order history.  Try to obtain those data to determine if your named plaintiff buys other products with ascorbic acid or citric acid despite now avowing that he tries to avoid those ingredients.  Does your plaintiff who now avows a passion for healthful food habitually purchase sugary beverages, processed snacks, or other junk food?  Such purchasing history also may have data regarding the prices that plaintiff paid for the challenged product.  Those data may show the dramatically varying prices from week to week as well as discounts that a consumer enjoyed because of membership in that type of program.

Food labeling class actions continue to be a thriving business for plaintiffs’ counsel.  Mounting strong defenses not only helps your client end the current case but also sends a message to the plaintiffs’ bar that bringing suit against your client will not be a good investment for them.   

James Smith is a partner in the Phoenix office of Bryan Cave LLP.  He is a member of the Class & Derivative Actions Client Service Group and of the Food and Beverage Team. 

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Categories: Food Safety

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In his recent article in City-Journal, Northwestern University Law Professor John McGinnis hypothesizes that recent and impressive technological advances will have an increasingly disruptive impact on the legal profession.  McGinnis notes that “law schools are in crisis,” “solo practitioners have been hurting for a decade,” “attorney job growth has been flat,” and “the going rate for associates, even at the best firms, has stagnated since 2007.”  Though the economic downturn has certainly played a part in the current state of the legal industry, the advances in information technology will be the determining factor in the future.  McGinnis predicts that “five key areas of law now face encroachment by this machine intelligence.”  

The first, e-discovery, is already well on its way to changing (and limiting) opportunities for some lawyers.  Most notably, junior litigation associates used to be profit centers for big firms by spending late nights and weekends on hefty document review projects.  With predictive coding, the speed and accuracy of this work is improved and the need for bodies in the office is decreasing.  

The second key area is legal research, which as McGinnis notes, has largely “depended on typing in the right specific keywords.”  As computer technology improves, machine intelligence will be able to recognize concepts rather than just words with the result being more efficient research limiting lawyers’ “traditionally enjoyed leverage over the laity.”

McGinnis’ third area, legal forms, is already replacing many of the tasks traditionally performed by solo practitioners and small firms: trusts, estates, basic corporate documents, etc.  Businesses like Legal Zoom and Kiiac specialize in drafting estate documents and contracts, while “Nevada’s secretary of state has pioneered online registration for small businesses, which can comply with regulations by following the steps of simple computer programs.”  

McGinnis also predicts computers may one-day play a stronger role in a fourth traditional lawyer task: drafting briefs and memos in simple litigation.  Though McGinnis notes “an experienced lawyer could easily shape a computer generated draft into a more polished product” there’s no denying that “once programs start being useful, they get more effective over time.”  Ultimately, computers may be playing the role of entry-level associate in some cases.  

Finally, McGinnis hypothesizes that computers will bring “moneyball” to law.  The term “moneyball”, made famous by Michael Lewis’ bestselling book about the change in baseball statistics and analytics, generally refers to a method of predicting results based on raw data and statistics.  For lawyers, the use of “moneyball” in the law means that computers predict a client’s chance of success in litigation, as opposed to a lawyer’s hunch or gut feeling. To some extent, legal moneyball is already in place.  Legal support companies already track numerous statistics about potential jurors and past jury verdicts in forums across the country. The question is, how much progress can be made using legal moneyball?

Right or wrong, McGinnis raises some interesting points about the changing role of computers and technology in the law.  In a world where lawyers are constantly competing with each other for the next case and the next deal, perhaps the most successful lawyers will be those that are prepared to compete with and for the best legal technology.  Indeed, as MIT’s Eric Brynjolfsson and Andrew McAfee have advised in their recent book Race Against the Machine, “The key to winning the race is not to compete against machines, but to compete with machines.”

You can read the entirety of McGinnis’ article here. 

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Aviation Safety Unfairly Attacked

Posted on June 20, 2014 05:31 by Robert J. Williams

Earlier this week, USA Today caused uproar, particularly among members of the aviation defense bar, with an inflammatory article titled, “Unfit for Flight: Hidden defects linked to small-aircraft crashes over five decades.”  The article quickly has been denounced by many as one-sided, biased and sensationalist media.  For those who may have seen that USA Today article, there is another side to the story – one that the author apparently had no interest in reporting.

In fact, the Aircraft Owners and Pilots Association (“AOPA”), General Aviation Manufacturing Association (“GAMA”) and aircraft manufacturer Textron all provided safety statistics and information to the author prior to publication of the article. The author did not include any of that information in his article, nor did he even mention these industry representatives’ candor and cooperation. AOPA’s response can be found here. Click here to read GAMA’s response. At least one media outlet has called the USA Today article “editorial malpractice.”  

Consider just a few points:

The article claims that “Nearly 45,000 people have been killed over the past five decades in private planes and helicopters.”  That naked statistic fails to consider there are over 21 million private flights carrying 170 million passengers annually.  Fatalities from private aviation are far fewer than other means of private and recreational travel, such as automobiles, boats and motorcycles.

The article disparages the work of the National Transportation Safety Board, contending that civil litigation leads to evidence the NTSB “never discovered,” and that plaintiffs’ verdicts contradict the NTSB’s findings.  It does not mention, however, that NTSB Probable Cause reports are inadmissible in civil litigation, where rulings and verdicts involving complex scientific and technical concepts are made by judges and juries with little or no scientific or technical education or training.

While highlighting a small handful of large plaintiffs’ verdicts and settlements, the article completely fails to mention any of the defense verdicts and dispositive pretrial rulings obtained by the manufacturers and their counsel.


Those of us who represent aviation professionals and manufacturers know that the industry is filled with conscientious individuals who are skilled, take much pride in their work, and make safety their number one priority. Those of us in DRI will continue to give them a voice.  If you would like to know more, please contact a DRI Aviation Law Committee member today.


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Categories: Aerospace Law

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After several decades of experience with women’s initiatives in a number of law firms, and DRI, the article below rings true to me. 

We recently reviewed DRI’s membership data and reached some interesting conclusions. DRI successfully recruits women at a rate equal to men in ages 26-30. Women become very engaged in DRI, participating significantly more than their male counterparts in seminars and the like. Then DRI loses them at a rate dramatically greater than men during ages 31-40. After that age, drop rates for men and those women who have remained members are roughly equivalent.

Of course, DRI’s membership demographics grossly track those of our member law firms. To the extent we can determine from limited data, DRI is losing women members disproportionately during ages 31-40 because women are leaving law firms disproportionately during those ages, which should come as no surprise to us in law firms.

This article suggests an approach to consider in reversing that trend, but it cannot succeed without senior leadership driving it. Nor can DRI reverse this trend in its membership ranks without leading its law firm members by example to do the same.

How One Law Firm Maintains Gender Balance

Harvard Business Review, Avivah Wittenberg-Cox 


No area of the business world is more illogically gender imbalanced than law firms. Every year, top law firms recruit 60% female and 40% male law graduates into their practices. Within two years, their female majorities begin to leave. The percentage of female equity partners is now 17% in the top 100 US law firms.

The strangest part is that women lawyers aren’t leaving the profession. They are only leaving law firms, taking on corporate, government or regulatory roles instead.

Law firms who want to hold onto their female recruits can do so – but they need to behave differently. Gianmarco Monsellato, head of TAJ insists it’s only an issue of leadership.

His own firm is 50/ 50 gender balanced, at all levels – including equity partners and governance bodies. It’s fueled their success over the past decade, and TAJ is now the No. 5 law firm in France.

How did he do it? Dramatically differently than most law firms. Most of his competitors have spent years organizing women’s initiatives, networks, or mentoring programs that have done little to increase the percentage of women reaching the top. The National Association of Women Lawyers’ recent report is pretty clear: These “fix the women” approaches have not delivered.

Instead, Monsellato tackled the problem personally. He was involved in every promotion discussion. “For a long time,” he says, “I was the only one allocating cases.” He insisted on gender parity from the beginning. He personally ensured that the best assignments were evenly awarded between men and women. He tracked promotions and compensation to ensure parity. If there was a gap, he asked why. He put his best female lawyers on some of his toughest cases. When clients objected, he personally called them up and asked them to give the lawyer three months to prove herself. In every case, the client was quick to agree and managed to overcome the initial gender bias.

This kind of leadership on gender is rare, but spreading. A growing number of courageous male leaders are working very hard to balance their companies – because they ferociously believe it will enhance their businesses. I spend a lot of time with these kinds of leaders. The smartest among them know that gender balance is more about getting male leaders, and men in general, to push for balance than it is about getting women to change their own behavior.

Monsellato laughs at the ideas of “leaning in” and diversity programs. “If partners aren’t convinced, you won’t get anywhere. And diversity programs headed by women reporting to all-male boards will never work.” He never referred to his gender push as a diversity initiative, and he has never run diversity programs. “What I have done is promote people on performance. If someone works 50% of the time, we adjust that performance to its full-time equivalence. When you adjust performance on an FTE basis, maternity issues stop being an indicator.”

He knows just how hard his female lawyers work, and he doesn’t want to lose out on the benefits of their productivity and ideas. “My biggest issue is trying to stop women from working all the time,” he says, “as technology allows them to work anywhere, anytime.” It’s the “tone from the top” that is key, he insists. Speaking to a roomful of female lawyers at a recent conference, he reminded them, “You are not a minority. It’s about balance, not about gender diversity.”

Interestingly, in my experience, most of the leaders who’ve pushed hardest for gender balance are themselves not fully members of their companies’ dominant majority. They are often a different nationality than most of their colleagues, or the first non-home- country CEO. So, for example, the Peruvian-born Carlos Ghosn at Nissan in Japan, the Dutch Marijn Dekkers at BAYER (disclosure: they are a client) in Germany, or the Italian Monsellato at TAJ in France.

There is nothing better than being a bit of an outsider to understand the particular stickiness of the in-group’s hold on power. These are some of the more enlightened leaders on gender balance. They build true meritocracies, they get the best of 100% of the global talent pool – and they will win a huge competitive edge in this century of globalization.


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Categories: Diversity | Life/Work Balance

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Today, in Lane v. Franks, SCOTUS held in a unanimous opinion that “Lane’s sworn testimony outside the scope of his ordinary job duties is entitled to First Amendment protection.”  And “the individual defendant has qualified immunity from this suit because prior precedent wasn't clear enough that you could not fire an employee for sworn testimony.” http://www.supremecourt.gov/opinions/13pdf/13-483_9o6b.pdf Justice Sotomayor delivered the opinion for the Court and Justice Thomas filed a concurring opinion joined by Scalia and Alito. - Click here to see more. 

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Categories: Employment/Labor Law

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