Movers & Shakers
May 30, 2007
News about lawyers and law firms in the product liability field.
UPDATE: Eleventh Circuit Affirms Lowery Case
May 30, 2007
As the May edition of <i>LJN's Product Liability Law & Strategy</i> went to press, the Eleventh U.S. Circuit Court of Appeals sought to 'unravel some of the mysteries of CAFA's cryptic text' with respect to the 'mass actions' provisions — which the court characterized as an 'opaque, baroque maze of interlocking cross-references that defy easy interpretation.' <i>Lowery v. Alabama Power Co.</i>, __ F. 3d __, 2007 WL 1062769, at *1, *8 (11th Cir. Apr. 11, 2007), affirming <i>Lowery v. Honeywell Int'l Inc.</i>, 460 F. Supp. 2d 1288 (N.D. Ala. 2006). In affirming the grant of remand, the Court of Appeals (in dicta) addressed some of the issues presented in our article 'CAFA: Finding a Method to the Madness of 'Mass Actions'':
Case Notes
May 30, 2007
Highlights of the latest product liability cases from around the country.
Lawyer Ads in Cyberspace
May 30, 2007
Nearly 30 years ago, the U.S. Supreme Court decided <i>Bates v. State Bar of Arizona</i> (433 U.S. 350 (1977; holding that 'blanket suppression' of attorney advertisements was an unconstitutional interference with First Amendment rights. However, the Court also recognized that some regulation of attorney advertising was necessary to protect consumers who lacked legal sophistication. Thus, the Court ruled that statements in lawyer ads that might pass muster in other industries could be misleading and were subject to reasonable regulation as to time, place and manner. The conflict between the First Amendment right to speech and the necessity and reasonableness of regulation of attorney advertising has continued to evolve since <i>Bates</i>, responding not just to changing mores regarding professional conduct, but to the challenges of new technology media.
Philip Morris USA v. Williams: Another Logical Step in the Control of Punitive Damages Or a Catalyst for a New Approach?
May 30, 2007
On Feb. 20, 2007, the U.S. Supreme Court issued its decision in <i>Philip Morris USA v. Williams</i>, ____ U.S. ____, 127 S. Ct. 1057 (2007), the latest in a series of decisions since 1991 exploring the limits that the Due Process Clause of the 14th Amendment imposes on state jury awards of punitive damages. An Oregon jury had awarded the widow of a Marlboro smoker $821,000 in compensatory damages and $79.5 million in punitive damages on a deceit claim against Philip Morris. After a series of appeals, the Supreme Court of Oregon had upheld the punitive damages award. The U.S. Supreme Court accepted the case to address two specific questions: 1) whether a state-court jury in a punitive damages award may punish the defendant for harm caused to parties not before the court; and 2) whether the $79.5 million punitive damages award was 'grossly excessive' because it was not reasonably related to the actual or potential harm caused by the defendant to the plaintiff. In a 5-4 decision, the Court answered the first question 'no' and declined to address the second question until the Oregon state courts had considered the case further.
Practice Tip: What the Jury Hears
May 30, 2007
Every day there is a new product liability headline. Every day jurors hear of a sensational new product liability verdict. Every day business is pitted against consumer safety. Trial counsel on both sides of the courtroom have to know what jurors expect from product liability cases and understand how to adapt their respective cases to those expectations. The expectations with which the jurors enter the courtroom will, to a great extent, determine what they will hear regardless of what you say.
Consumer-Generated Content Is Hot
May 30, 2007
Over the past year, a growing number of companies have begun to sponsor promotions involving consumer-generated content. These types of promotions offer many advantages for marketers. If a promotion is executed well, it could generate publicity for a relatively small investment. Consumers are also likely to spend more time on a company's Web site watching videos and learning about the company's products than they would otherwise. Moreover, a company may end up with a great commercial at a fraction of the price they would have had to pay an agency to develop it. Along with these advantages come a number of legal challenges.
Defective Pet Foods: New Litigation Theories Or Just the Same Old Chow? An Animal Law Attorney Argues for More Than Market Value Damages
May 30, 2007
One of the biggest stories in product liability in the past month has been the recall of tens of thousands of cans of food sold to consumers to feed to their companion animals. The news has attracted public attention because it is a tragedy of potentially epic proportion: Somewhere between 20 (according to the FDA) and 20,000-plus (by extrapolating statisticians) of the nation's nonhuman family members have developed serious illnesses and/or died from eating food containing something very toxic that has caused renal failure (still being debated). Furthermore, in the litigation arena, plaintiffs' attorneys ranging from sole practitioners to the large class action law firms most often in the headlines have all filed actions representing both individual clients and broad-ranging classes of thousands of individuals affected by the poisoned food. (At the time of this writing, more than 30 cases had supposedly been filed across the country.)
Rethinking Mandatory Arbitration of Employment Disputes
May 29, 2007
For a number of reasons discussed below, employers truly interested in turning back the clock on the 1991 amendments to Title VII would be well served to cease using mandatory arbitration agreements and instead have their employees execute waivers of their right to jury trials. It is juries that employers generally fear, not the courts themselves. Prior to the 1991 amendments, employers felt no imperative to exempt themselves from the civil justice system available in the courts. Thus, employers do not now need to flee the court system altogether in order to avoid jury trials, and there is certainly no reason for them to require their employees to agree to the wholesale replacement of court litigation with mandatory arbitration.
