We like CAFA – that is the Class Action Fairness Act – because a federal forum is generally much preferred (and becoming moreso after Dukes and Comcast) for class actions involving prescription medical products, not to mention just about anything else. Thus we cautioned some time ago that the industry could “lose by winning”
Back when Bexis was still at Dechert, we put up a cautionary post called “CAFA Not With Standing.” In that post we cautioned against using constitutional standing as a defense to class actions with questionable and attenuated damages claims. Remember CAFA, we pointed out. The damages sought in state-court class actions need to support federal Article III standing, or else defendants won’t be able to keep the actions in federal court.
Well, yesterday the court in Bouldry v. C.R. Bard, Inc., No. 12-80951-CIV, slip op. (S.D. Fla. Dec. 18, 2012), addressed precisely the situation discussed in that post. Fortunately, our side won, and the class action stayed in federal court, where there are plenty of other arguments against its validity.
First, we have to point out that Reed Smith was involved in the Bouldry case, so we can’t say as much as we’d like. We’ll have to stick to the legal propositions. As for the facts, all we can say is that the Bouldry opinion should be applicable to other attenuated injury class actions, regardless of the product or conduct involved.
Bouldry involved a state class action in Florida alleging that a medical device had a higher risk of failure than it should. The class consisted of people who had not suffered any failure. There are good arguments that this sort of at-risk damages are not recoverable under most states’ laws − see our no injury scorecard, and in particular the Shiley heart valve cases from the late 1980s and early 1990s, which addressed similar allegations. Hint: the defendant won almost all of them.Continue Reading At Risk Claims Sufficient To Support Federal CAFA Jurisdiction
About a year ago we reported on the dismissal of what we characterized as a “really bogus” attempted class action in In re McNeil Consumer Healthcare Marketing & Sales Practices Litigation, 2011 WL 2802854 (E.D. Pa. July 15, 2011) (“MCH”). We distilled the 2011 MCH opinion down into four “simple rules” for pleading:
Simple rule #1: If you didn’t buy the product, you can’t claim economic loss from purchasing it.
Simple rule #2: There has to be something wrong with the product before you can sue over it.
Simple rule #3: What you didn’t buy can’t cause you any injury from its mere purchase. See simple rule #1.
Simple rule #4: Don’t allege physical impossibilities.
We noted at the end of that post that the court in MCH had granted leave to amend, but speculated that the plaintiffs − even though enjoying the excellent representation characteristic of multidistrict proceedings − might well flunk TwIqbal again because they were more interested in alleging something that had a prayer of being certified as a class than they were in stating a claim in the first place.
It turns out we were right.Continue Reading Still Standing
Not too long ago we advised that it’s a good idea to check whether your plaintiffs were actually alive when they filed their suits. We’d like to amend that to add that it’s also a good idea to check whether your plaintiffs were financially alive as well.
By that, we mean plaintiffs should be checked
We, well Bexis, had this happen to us more years ago than we can count, during the height (or should we say depths) of asbestos litigation in the Philadelphia Court of Common Pleas. A plaintiff’s medical records demonstrated that, at the time the plaintiff filed his complaint, he was dead. The plaintiff’s law firm has
While it remains true that our role in bringing about the Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001), preemption decision is probably the highlight of our (read Bexis’) legal career to date, sometimes there may be reasons when we don’t want to rely upon the Buckman Court’s preemption-based analysis for why
In a pair of precedential opinions, the Third Circuit affirmed today the dismissal – for lack of standing- of the Intron off-label promotion RICO class action.
See: In Re: Schering Plough Corp. Intron/Temodar Consumer Class Action, No. 10-3046, 3047, slip op. (3d Cir. May 16, 2012), and In Re: Schering Plough Corp. Intron/Temodar Consumer
We were just reading an interesting, relatively new, decision from our home Circuit, Reilly v. Ceridian Corp., 664 F.3d 38 (3d Cir. 2011), and our reaction to it wasn’t quite what most readers would expect. The defendant won, but we were still troubled.
Sometimes defendants can lose by winning – as we discussed that
When we convince a court that an action against one of our clients must be dismissed for failure to state a claim – say, for TwIqbal reasons – under Rule 12, we sometimes say that the plaintiff’s case was so poor that s/he couldn’t even get to first base. A much rarer form of dismissal,
“For lo the Winter is past, the rain is over and gone.” Song of Solomon, 2:11. Except it’s not gone. The torrents of Spring have arrived in the Delaware Valley. Yesterday was dank and stormy, and it shows no signs of letting up. “There is a sound of abundance of rain.” Kings, 18:41. We do