We’ve all heard that “what’s good for the goose is good for the gander.” Some of us describe it as “the rule of poultry equivalents.” However you phrase it, we’ve always thought that if a defendant’s insurance is routinely discoverable, a plaintiff’s litigation financing agreement should be as well. Today’s decision from Delaware, Burkhart v. Genworth Financial, Inc., 2024 WL 3888109 (Del. Ch. Aug. 21, 2024), isn’t a pharmaceutical or medical device case, but it is the fourth decision out of the Delaware state courts holding that a plaintiff’s litigation funding agreement is discoverable. The decision adds to some of the positive case law and local rules related to litigation funding that we’ve addressed here, here and here. Continue Reading Litigation Funding Agreements Discoverable in Delaware
class action
Another Preemption Win Involving An Economic Loss Class Action And An OTC Drug
As regular blog readers know, we love a clean grant of a motion to dismiss on preemption grounds. They are relatively common, so it sometimes puzzles us that the plaintiffs’ bar keeps filing plainly preempted claims.
Perhaps some of these plainly preempted lawsuits get filed because the express preemption provision of the FDCA related to…
Rule 23(d) Strikes Again—This Time For The Good Guys
We brought you yesterday an example of a district court using Rule 23(d) to order a curative action vis-à-vis a putative class, but not in a good way. In that case, a medical device manufacturer initiated a recall of certain lots and published recall information for patients, in coordination with the FDA. Some enterprising plaintiffs’…
Valsartan, Again. (Deep Sigh)
We have spilled a good deal of ink on the Valsartan MDL. The back-end of the blog says 18 posts (and counting) already reference Valsartan. Why so many? Because they usually are so bad. Today’s post is more of the same. Hence the deep sigh.
Today’s Valsartan opinion, In re Valsartan, Losartan, & Irbesartan Products…
Prescription Drugs and Class Actions Do Not Mix
Some things were never meant to go together. Oil and water. Ice cream and ketchup. Harry Potter and Lord Voldemort (although fans of the books will quickly point out that Boy Who Lived was actually linked inextricably to his arch enemy). Picnics and honey bees. Elected officials and the power to borrow money. You get…
California Lotion Class Action Slides into Federal Preemption
Are moisturizing lotions cosmetics or drugs? They say on TV that lotions “lift and moisturize,” but does that move them into the “Drug” column of the “Food Drug and Cosmetic” ledger? We will hazard a guess that lotions are usually cosmetics, but what if the manufacturer adds an SPF factor? We would then say that…
A Money-For-Nothing Pharmaceutical Class Action In California
We continue to scratch our heads over consumer class actions seeking monetary compensation when the customers received exactly what they paid for. We see them from time to time in the pharmaceutical space, where patients claim monetary compensation even though the prescription drugs they used worked like they were supposed to with no adverse reactions. …
Ninth Circuit Upholds Denial of Alaska Genetic Privacy Class Certification
You Can Use BMS To Oppose Class Certification, Too
We have written a lot about personal jurisdiction and class actions, and we have particularly questioned how, after BMS, anyone could proceed with a nationwide class action applying state law in a forum where there is no general personal jurisdiction over the defendant. We are not the only ones posing this question, but as…
“Slack Fill” Class Action Is Empty Space
We never heard the term “slack fill” before we started writing for this blog, but it seems to be getting a lot of attention lately. We enjoyed a podcast from NPR’s Planet Money the other day discussing slack fill in black pepper containers, and we blogged on the FDA’s regulation of slack fill a little more than a year ago. We have to admit, the words are fun to say. “Slack fill.” They snap off your tongue with a certain percussive elegance. Sort of like “Severus Snape.” Or “Coco Crisp,” who is an actual person, a switch-hitting outfielder currently vying for a World Series crown with the Cleveland Indians. (Coco Crisp, whose given name is Covelli Crisp, broke into the big leagues with the Indians in 2002, and he returned to Cleveland just a few months ago after spending six-and-a-half seasons leading off for our beloved Oakland Athletics. His change from the white cleats to black is a big loss for Oakland and, if the Indians beat the Cubs, a bigger win for Coco. But we digress.)
For those who missed our prior post on slack fill, the term refers to empty space, like the extra air in a bag of chips. The variant “nonfunctional slack fill” refers to pointless empty space. It’s just there, serving no purpose, just like a recent slack fill class action that recently met its demise in the Eastern District of New York, Fermin v. Pfizer, Inc., No. 15-cv-2133, 2016 U.S. Dist. LEXIS 144851 (E.D.N.Y. Oct. 18, 2016). In Fermin, the plaintiffs’ alleged that they were “tricked” into purchasing ibuprofen because the containers were too big. Id. at *1. Never mind that the labels prominently and accurately stated exactly what was in the bottles, down to the number of pills. These plaintiffs alleged that the “excessive empty space” in the packaging misled them into purchasing the product, and they purported to represent a class of purchasers under the consumer laws of multiple states. Id.Continue Reading “Slack Fill” Class Action Is Empty Space