It has been just about two years since the Central District of California dismissed the claims in Nexus Pharmaceuticals, Inc. v. Central Admixture Pharmacy Services, Inc. as impermissible attempts to privately enforce the FDCA and therefore impliedly preempted. We blogged about that decision back then. At that time, we noted that while the case arose
Private Right Of Action
The Intersection Between the Lanham Act and the FDCA
FDA’s exclusive enforcement powers prohibit plaintiffs from bringing what amount to private FDCA violation claims in the guise of private civil litigation. 21 U.S.C. §337(a). That is the foundation on which prescription drug and device preemption is built. However, preemption is about the interplay between federal and state law requirements and where the latter must…
New York Consumer Fraud Case Tossed as Improper Private FDCA Cause of Action
We venture a bit outside our normal drug/medical device arena today for a case involving dietary supplements, but you know we cannot resist a case shot down as an attempt to pursue a private FDCA cause of action. It’s a bit like the refrain to The Christmas Song – “although it’s been said many times,…
Door Still Shut to Parallel Violation Claims in Florida
New Jersey Federal Baked Goods Fraud Class Actions Are Toast
Almost on this date in 1901 (tomorrow actually), Teddy Roosevelt for the first time uttered in public the immortal phrase, “Speak softly and carry a big stick”. It is hard to find people who do not admire that statement. It is harder to find people who actually practice it. These days we are accustomed to wimpy parents and blowhard politicians who talk tough but do nothing. As a result, you get teenagers gobbling up the cheese-of-the-month delivery and Russia gobbling up Crimea. We also encounter some soft-hearted and -headed judges who speak loudly and wield no stick – at least when it comes to clamping down on bogus lawsuits. Corporate defendants hauled/haled/but-definitely-not-hailed into court are held to ludicrously high standards, while plaintiffs dwell in a world of do-overs and feckless flexibility.
A couple of weeks ago we discussed CD Cal Judge Wilson, who is as demanding as he is smart. One could say (and we have said) the same about Judges Posner, Boggs, Kozinski, and Rakoff. One could also say that about D NJ Judge Irenas who sits in the Camden federal courthouse, which we can see out our window if we crane our heads just so. If you read the Robing Room evaluations of Judge Irenas (which you must necessarily take with a grain of salt, since they are peppered with the comments of sore losers) a picture emerges of intelligence and rigor.
We can be an oath-helper on that fact. After our first year of law school, we summered at McCarter & English in Newark, NJ. Irenas was a partner there, and was universally acknowledged to be the smartest lawyer in the building. In our second or third week as a summer associate, we received an assignment from Irenas. The other summer associates cackled with glee. That is because in addition to having a reputation for being smart, Irenas had a reputation for not suffering fools gladly. And all of the summer associates were fools. An Irenas assignment was an opportunity, but a frightening one.
The assignment involved the inevitable research memo. After we turned it in to him and were grilled to a nice medium-well, we got on a conference call. At one point, the party on the phone voiced some trepidation and reservations, whereupon Irenas thundered a withering critique of said reservations. Loud dysphemisms filled the air. He must have seen us shaking with terror, because he smiled and gestured to show us that his finger, which was resting on the microphone (back then speakerphones were separate from the actual telephone, and were connected by a wire) was also pushing down on something we did not know existed – a mute button. He then released the button and rendered a much more temperate, but still piercing, dissection of the reservations. What he said was about a hundred times more insightful and felicitously expressed than our pathetic research memo. Lesson learned.…
Continue Reading New Jersey Federal Baked Goods Fraud Class Actions Are Toast
Still No Duty To Supply Drugs – In 22 States
Since the inception of the blog we’ve taken interest in “flip side” lawsuits in which a plaintiff sues one of our manufacturer clients making allegations diametrically opposed to what we usually see in product liability litigation – that, far from being injurious or “defective” − our client’s product is so valuable that the plaintiff can’t do without it, and is suing because of some threat to his/her supply of that product.
The first time we commented on such suits, the plaintiffs were suing the government, claiming a constitutional right to try investigational drugs. We opposed that, knowing that, were such a right recognized, our clients would be the next targets of such constitutionally empowered plaintiffs, because our clients, not the government, had the drugs in question. The courts ultimately said “no,” see Abigail Alliance v. von Eschenbach, 495 F.3d 695 (D.C. Cir. 2007), but the lawsuits followed anyway. Most of these cases involved desperately ill people grasping at investigational straws because there was no cure (or even reliable treatment) for their conditions (muscular dystrophy, multiple sclerosis, and similarly devastating and fatal conditions). We summed this kind of litigation up recently in reviewing the first comprehensive law review article on the subject.…
Continue Reading Still No Duty To Supply Drugs – In 22 States
Preemption Made Easy
The reason that the court’s decision in Wagner v. Pfizer, 2014 U.S. Dist. LEXIS 94281 (W. D. Wisc. July 11, 2014), is useful is not because it dismisses state-law claims against generic manufacturers on the basis of preemption and other defenses we like. It certainly does those things, and that’s good. But we see decisions like that almost every week. What Wagner does, however, is add to the quality of those decisions, not just their quantify. Its opinion is clear and unhesitating. It takes on Mensing and Bartlett preemption and the non-existence of failure-to-update claims in barely more than three crisp pages. And, along the way, it provides uncomplicated and convincing passages that all of us can use in our future briefing.
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Rose Presents Thorny Issues for UCL Drug and Device Plaintiffs
This post is from the Dechert side of the blog only.
When product-liability plaintiffs suing drug or medical device manufacturers assert California’s Unfair Competition Law (“UCL”) using a purported “violation” of the Food, Drug and Cosmetic Act (“FDCA”) as the hook for the “unlawful” prong of the claim, courts have not clearly addressed how such a claim could be reconciled with the no private right of action clause in the FDCA, 21 U.S.C. §337(a).
Earlier this month, the California Supreme Court provided some guidance on the issue in Rose v. Bank of America, N.A., S199074, slip op. (Cal. Aug. 1, 2013), in a case involving a different federal statute, the Truth in Savings Act (“TISA”). The court allowed a UCL claim to “borrow” from” TISA because “Congress expressly left the door open for the operation of state laws that hold banks to standards equivalent to those of TISA,” even though it had repealed a federal private statutory right of action. Slip op. at 7. Why? Because Congress left alone a savings clause that preserved the authority of states to regulate the same subject so long as state law is consistent with TISA:
[C]onsiderations of congressional intent favor plaintiffs. By leaving TISA’s savings clause in place, Congress explicitly approved the enforcement of state laws [within the express terms of the savings clause]. The UCL is such a state law.
Id. at 4
(TISA-specific savings language omitted).
Why does that interest us – particularly since the result was adverse to the defendant?…
Continue Reading Rose Presents Thorny Issues for UCL Drug and Device Plaintiffs
Plaintiff’s Second Try Still Preempted
This one’s from the Dechert side only.
We talk about a lot of motions to dismiss on this blog and being a defense blog, the overwhelming majority are successful. Motions to dismiss being what they are – motions that examine only the pleadings and are generally brought early on in the life of a lawsuit…
Vitamin C Claims Preempted
“Don’t leave home without it.” “Takes a licking and keeps on ticking.” “Just do it.” “Tastes great, less filling.” Iconic ad campaigns so recognizable that we don’t even need to tell you the product being advertised. Here’s another one: “The nighttime sniffling, sneezing, coughing, aching, stuffy head, fever, so you can rest medicine.” For over…