We again post the day after a holiday, when stores are flooded with shoppers—this time exchanging gifts purchased last time.  We discuss a case involving discussions of “consumer value” and “fair market value.”  So, you might think we would go back to that shopping well.  No.  We have decided to zag.  To us, the opinion on class certifications in Saavedra v. Eli Lilly & Co., No. 2:12-cv-9366-SVW (MANx) (C.D. Cal. Dec. 18, 2014), slip op., evokes another seasonal activity, playoff football.  Depending on how you count the requirements, plaintiffs in a purported class action need to clear three or four hurdles to get the certification they want.  Class certification tends to be a vehicle to settlement, which is what the lawyers who drive class action litigation really want, particularly in the consumer protection context.  Tripping over one of the hurdles typically means the journey was a waste.  In the NFL, four of the twelve playoff teams each need to win three straight games to hoist the Lombardi Trophy; the other eight each need to win four straight.  Teams that lose in the Conference Championship or Super Bowl tend to view the season as a failure, not a success.  The teams and players do profit from incomplete playoff runs, but we are not shaken from our view of the parallel here.

In the top division of college football, there is now a playoff of four teams.  The winner will have to win two straight games.  This would be on top of the conference championship game and “rivalry week” game that each had to win over the preceding weeks.  (Again, three or four hurdles, depending on how you view it.)  We can assume that the three teams that lose in the playoffs will not be “happy to have been here.”  The four universities will have profited quite a bit from the playoffs—and the players not all (which is a different discussion entirely)—but only one will have succeeded once it is done.  Still, once the playoffs start, the champion will be measured objectively:  which team won two playoff games?  In the past, before there was a playoff, the crowning of a champion or champions of this division of college football was a matter of subjectivity:  based on the individual view of the voters of the various groups that might anoint a champion, which team had the best season?   That subjectivity irked fans.  Even with mounds of statistics to measure performance, the lack of the definitive measurable—the results of playoff games—was unsatisfying.  (Yes, we know that the four playoff teams are selected with a large measure of subjectivity, but work with us.)

In consumer protection class actions premised on an alleged misrepresentation about a prescription drug, the plaintiffs should have to allege an objective harm and an objective way to measure it.  When they cannot, they should not have a class (or probably even individual claims of the purported class representatives).  Saavedra comes out of litigation over the risks of withdrawal from a prescription antidepressant.  We have posted previously on summary judgment on warnings claims in personal injury cases with the same product and risk.  Here and here.


Continue Reading When It Comes to Class, Objective Is Better Than Subjective

Before Bryan Cranston was Walter White, terminally ill chemistry teacher turned murderous meth manufacturer; before he was Hal, the clumsy and loving husband on Malcolm in the Middle – he was Tim Whatley.  Jerry Seinfeld’s re-gifting dentist who converted to Judaism just “for the jokes.” So affronted is Jerry for his profession, that Kramer –

Yesterday the Third Circuit upheld a District of New Jersey decision denying class certification as to plaintiffs’ consumer fraud and unjust enrichment claims.  Grandalski v. Quest Diagnostics Inc., 2014 U.S. App. LEXIS 17543 (3d. Cir. Sep. 11, 2014).

Plaintiffs alleged that Quest had overbilled them for testing services and their complaint proposed multiple nationwide

Here’s the second case that was sent to us by our readers.  It is a favorable decision on one of our many pet peeves, off-label promotion, In re Celexa & Lexapro Marketing & Sales Practices Litigation, 2014 WL 3908126 (D. Mass. Aug. 8, 2014).  On this one, the congratulations belong to Debevoise for winning it, and our thanks to J. Robert Abraham for being so kind as to send us a copy of the decision.

In C&L (the official title is too much of a mouthful) the defendant was sued under the California unfair competition statute (“UCL”) for “restitution” of co-payment the plaintiffs paid for Celexa.  The case was initially brought as a class action (most UCL cases these days are), but certification had been denied earlier because of the predominance of individualized issues.  Among other things, C&L demonstrates the correctness of that determination, since the reliance facts were quite peculiar.

Other than the peculiar UCL damages (personal injury is not recoverable), C&L reads like a learned intermediary rule warning causation case and applies largely the same principles.


Continue Reading Interesting Cases Sent By Users (Part II) Off-Label Promotion

While most of the buzz late last week concerned the Darvocet affirmance, we also recommend that defense counsel check out this case:  Amos v. Biogen Idec, Inc., 2014 WL 2882104 (W.D.N.Y. June 25, 2014).  Amos involved the prescription drug Tysabri.  The allegation in Amos, as in most Tysabri, cases, is that the drug caused an opportunistic type of CNS infection.

That’s not what interests us about Amos, but rather the product being an innovator drug, not a generic.  That’s why we’re pleased with Amos’s first holding – that design defect claims are preempted.  Ever since our first reading of Mutual Pharmaceutical Co. v. Bartlett, 133 S. Ct. 2466 (2013), we have believed that Bartlett’s rationale mandates impossibility preemption of design defect claims with any drug.  That’s because no drug manufacturer, generic or innovator, can change the design of its drug in any way that alters its safety or effectiveness without getting prior FDA approval of the change.  That’s precisely what the court held in Amos, preemption of design defect claims as to any drug in “interstate commerce,” albeit without much resistance from the plaintiffs:


Continue Reading Interesting Case On A Couple Of Issues

Have you ever heard the phrase “A Snickers Bar a day keeps the doctor away”?  Neither have we.  That is because chocolate is a dessert, a luxury, and not a food with significant health benefits.  Sure, chocolate can provide much needed energy, and a taste of chocolate from time to time won’t do a typically

Safe harbor.  We like the sound of that.  The term connotes a level of calmness and predictability that we find appealing in the regulation of drugs and medical devices, and we find ourselves writing about safe harbors a lot lately.  Bexis recently gave us his survey of safe harbors against state consumer fraud claims, and