Rob Herrington

Robert helps sophisticated business clients address complex disputes and competitive challenges to their products, services, and business practices.

Subscribe to all posts by Rob Herrington

Key Class Action Takeaways From Briseno v. ConAgra Foods

In Briseno v. ConAgra Foods, Inc., ___ F.3d ___ (9th Cir. Jan. 3, 2017), the Ninth Circuit held that Rule 23 does not require plaintiffs to establish an “administratively feasible” means of identifying putative class members, expressly rejecting decisions like Carrera v. Bayer Corp., 727 F.3d 300, 306-08 (3d Cir. 2013). But the decision goes … Continue Reading

Glyphosate Litigation Primer

Introduction Plaintiffs’ lawyers in several states are investigating cases of non-Hodgkin lymphoma and other forms of cancer in individuals exposed to the widely used herbicide glyphosate. These investigations follow on the heels of a 2015 report by a working group at the International Agency for Research on Cancer (IARC), which concludes that glyphosate is probably … Continue Reading

Pass-On Defense Still Alive and Well

A California federal court recently relied on the so-called “pass-on defense” to deny class certification in a lawsuit asserting claims under California’s Unfair Competition Law (UCL).  Elite Logistics Corp. v. MOL Am., Inc., No. CV1102952DDPPLAX, 2016 WL 409650, at *3 (C.D. Cal. Feb. 2, 2016). Consumer products companies will want to take note of this … Continue Reading

Class Action Defense Tip – Don’t Forget that UCL Claims Are Equitable

Consumer products companies that face class action litigation in California most often see two causes of action: (i) claims that the company violated California’s infamous Unfair Competition Law (UCL); and (ii) claims that the company has violated the Consumer Legal Remedies Act (CLRA). These statutes are similar in some ways, but they have an important … Continue Reading

Growing Risk for Consumer Products Companies – Issue Classes

I attended the ABA’s National Institute on Class Actions last week in Chicago, and one theme was clear. Plaintiffs’ lawyers are increasingly fond of asking courts to certify cases so-called “issue classes,” invoking Rule 23(c)(4). They believe that they can pressure companies to settle cases by defining a relatively narrow, yet critical, issue for certification … Continue Reading

Negative Option/Automatic-Renewal Disclosures Scrutinized

Our Greenberg Traurig colleagues, Ed Chansky and Irving Scher, recently prepared a GT Client Advisory discussing the enforcement of inadequate negative option/automatic-renewal disclosures and the requirements for companies to be compliant with state and federal laws. Negative options, as defined by the FTC, are commercial transactions in which sellers interpret a customer’s failure to take an … Continue Reading

The Injunction Conundrum – When Can a Class Action Plaintiff Sue for Injunctive Relief?

a href=”http://gtlawconsumerproductscounselor.lexblogplatformtwo.com/files/2014/07/shutterstock_153943454.jpg”>As the Supreme Court has tightened the requirements for certifying a damages class action, some in the plaintiff’s bar have responded by focusing on class actions seeking injunctive relief, particularly in cases against consumer products companies.  To certify a class under Rule 23(b)(2), a plaintiff does not have to demonstrate predominance or superiority, and … Continue Reading

Massachusetts Consumer Pricing Advertising Law

Our Greenberg Traurig colleagues, David G. Thomas, James P. Ponsetto and Michael E. Pastore prepared a GT Client Advisory discussing Massachusetts’ laws governing price comparison advertising, as set forth in 940 C.M.R. § 6.05. The authors explain price comparison advertising and other pricing practices that may be unfair or deceptive advertising. To view the GT Client Advisory on www.gtlaw.com, please click here. … Continue Reading

New Class Action Threat: Is Your Company Complying With California’s Automatic Renewal Laws?

Several class actions have been filed recently against companies offering music and video subscription services online for allegedly not complying with California’s Automatic Renewal Laws (California Business and Professions Code § 17602). This statute may apply whenever a company enrolls a California resident in an “automatic renewal” or “continuous service” offering, where the customer’s subscription … Continue Reading

New Developments in Collecting ‘Personal Identification Information’ During Credit Card Transactions

Our Boston colleagues David G. Thomas, James P. Ponsetto and Michael E. Pastore recently authored a firm Alert as a follow up to a previous GT Alert regarding a consumer’s right to claim relief under the Massachusetts Consumer Protection Act (Chapter 93A). The new Alert provides an update on recent developments, and discusses how retailers can … Continue Reading

Sign up for a May 19, 2014 Webinar Presented by This Blog’s Editors on Work Product Protection of Communications With Expert Witnesses and Consultants

Litigation counsel are always sensitive about communications with experts, whether retained as witnesses or consultants. While the 2010 amendments to Federal Rule of Civil Procedure 26 attempted to address common concerns and provide guidance on the scope of what is and is not discoverable, the new rule doesn’t provide all answers and the law continues … Continue Reading

Is ‘Unscented’ the New ‘All Natural’?

Consumer products companies selling personal care products have started receiving demand letters and class action complaints alleging false advertising because of the use of the term “unscented.”   Is this the next class action wave to hit the consumer products industry? Many personal care products, such as soaps, creams and deodorants, are labeled as “unscented” … Continue Reading

Variability in Consumer Experience Dooms Class Action

Berger v. Home Depot USA, Inc., No. 11-55592 (9th Cir. Feb. 3, 2014) This is a great decision for retailers and consumer products companies. The court affirmed a decision denying class certification, recognizing that variability in consumer experience when entering into a retail transaction makes a case inappropriate for class treatment. In Berger, plaintiff challenged … Continue Reading

FTC Targeting Weight Loss Claims

The FTC recently announced that it is stepping up enforcement against companies selling quick-fix weight-loss products.  GT Shareholder, Justin Prochnow, highlights the risks created by the FTC’s initiative: While the FTC has always scrutinized weight-loss claims, these actions indicate that the FTC intends to continue putting pressure on marketers and advertisers of weight-loss products to … Continue Reading

California Adds DINP to Prop 65 List

Consumer products companies should be aware that diisononyl phthalate (DINP), which is often used in soft plastics and vinyls, is now on the list of Proposition 65 chemicals. GT Shareholder Jim Mattesich highlight this new risk in a recent client alert: The California Office of Environmental Health Hazard Assessment (OEHHA) announced that it will add diisononyl … Continue Reading

Hope for Consumer Products Companies Facing ‘Natural’ Class Actions

Greenberg Traurig Shareholder Ed Chansky highlights a recent decision dismissing consumer fraud claims alleging a personal care product was mislabeled as “all natural.”  The key aspects of the decision were: “Natural” is a vague and ambiguous term without a single or universal definition. The plaintiffs’ proposed definition of “natural” as “existing in or produced by … Continue Reading

Cautionary Tale – Modify Business Practices and on the Hook for Catalyst Fees

After being hit with a class action, one question consumer products companies often face is:  should we modify our business practices in response to the suit?  Sometimes it makes sense.  Changing the challenged practice can, in some cases, help defeat class certification and may help limit liability.  Others would argue that changing business practices in … Continue Reading

Important Reminder for Consumer Products Companies on Product Demonstrations

GT Shareholder Irv Scher authored a client alert regarding a recent FTC enforcement action involving product demonstrations. The case involved advertising for a truck shown pushing a dune buggy up a steep hill, something the truck allegedly was not capable of doing.  The FTC sued and won a settlement in which the advertiser is prohibited … Continue Reading
LexBlog