Consumer Class Actions and Mass Torts : Class Action Lawyer & Attorney : J. Russell Jackson : Skadden Law Firm : Complex Class Actions : Consumer Class Actions & Mass Torts Law Blog

Regular readers of this blog will recall that in late October, I wrote about an opinion by U.S. District Court Judge James K. Bredar, in which he concluded after analyzing the Supreme Court's fractured opinions in J. McIntyre Machinery Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), that a majority of the Justices have rejected the "foreseeability" theory of personal jurisdiction in which jurisdiction may be premised solely upon the manufacturer's knowledge or expectation that its product may ultimately end up in a particular state after it is placed in the so-called stream of commerce.  Personal jurisdiction requires something extra:  stream of commerce "plus."  The Supremes just can't agree on how to characterize the "plus" element that gets to the notion of purposeful availment of the forum state's laws.

Judge Bredar had been loathe to dismiss the claim against the foreign defendant without giving the plaintiff a post-Nicastro shot at proving there was a "plus" there in his case.  Well, they have had the hearing, and now it's official:  the Taiwanese supplier of the bicycle's "quick release skewer" is out of the case.  As you may recall, there had been evidence that the supplier of the allegedly defective component had sold its components to bike manufacturers in the U.S., but there was no evidence that it had targeted Maryland in any way.  And now, after the hearing, there still is none.

In Windsor v. Spinner Industry Co., Ltd., 2011 WL 5985804 (D. Md. Nov. 30, 2011), Judge Bredar explained that the only new evidence offered was testimony from the president of a Maryland company that buys and sells bicycle parts.  Although he had bought a number of bicycle hubs made by the Taiwanese defendant, he bought them through a trading company in Taiwan and had never bought directly from the defendant.  (Moreover, there apparently still was nothing to connect any so-called "purposeful availment" of the forum's laws to the particular component that failed in the plaintiff's bicycle.  Thus, there was not even enough evidence to support specific jurisdiction, let alone general jurisdiction over the defendant.)

The court held that plaintiffs had "failed to carry their burden of demonstrating that [the Taiwanese defendant] is subject to personal jurisdiction in this forum."  Thus, it dismissed the claims against that defendant without prejudice.

On the same day, a court on the opposite coast reached a similar conclusion.  In Dow Chemical Canada ULC v. Superior Court, 2011 WL 6004358 (Cal. App. -- 2d Dist. Nov. 30, 2011), the plaintiffs had been injured when their 3-person personal watercraft -- think jet-ski, and then switch the brand to Sea Doo -- exploded on the California side of Lake Havasu.  The suit alleged that a defect in the fuel tank had caused the explosion.

The Sea Doo had been manufactured by a Canadian company, Bombardier, in Canada.  Bombardier had bought the allegedly defective fuel tank in Canada from a Canadian company, Wedco Molded Products, that ultimately became part of Dow Chemical Canada. 

Dow Chemical Canada appeared specially in the case to quash the summons on the ground that it lacked minimum contacts with California to justify the state's assertion of personal jurisdiction.  The trial court denied the motion to quash.  In doing so, it relied on testimony from a Bombardier employee that sometime in the 1990s he told unidentified "representatives" of Wedco that the watercraft in which Wedco's gas tanks were used were being sold in California.  Dow Chemical Canada sought a writ of mandate in the California Court of Appeal and the California Supreme Court.  Both of them turned Dow down.  It then sought certiorari in the U.S. Supreme Court.  And then the U.S. Supremes issued Nicastro.  Afterwards, the U.S. Supremes vacated the judgment against Dow Chemical Canada and remanded the case to the California Court of Appeal for reconsideration in light of Nicastro.

The California court got the hint.  First, it described the issue presented as "whether merely depositing goods in the stream of commerce with knowledge that some will end up in a finished product manufactured by another and sold in the forum state, is enough to satisfy the minimum contacts standard for personal jurisdiction."  Id. at *2.  And after recounting the Supreme Court's history of "stream of commerce" analysis in Asahi and Nicastro, the court answered the question with a resounding "no."  It reasoned:

At no time did Dow . . . engage in any activities in California that reveal an intent to invoke or benefit from the protection of its laws.  Nor is there any evidence that the design of Dow's product was in any way California-specific.  It is not sufficient for jurisdiction in this case that the defendant Dow might have predicted or known that its products would reach California.

[Wedco] never undertook to ship its components to California; it supplied its gas tanks and filler necks exclusively in Canada.  It matters not whether [Wedco] knew or could have predicted that another party -- Bombardier, Inc. -- would sell Sea Doos incorporating the [Wedco] gas tanks in California.  [Wedco] did not advertise or market products in California; it never sold products in, or to customers in, California; it never maintained an office or facility of any kind in California; it has never been qualified to do business in California; and it has no agent for service of process in California.  Due process requires that Dow have engaged in additional conduct, directed at the forum, before it can be found to have purposefully availed itself of the privilege of conducting activities within California.

Id. at *6 (citations omitted, emphasis added).  The court thus issued a writ of mandate to the trial court to grant Dow Chemical Canada's motion, and it awarded the company its costs for the proceeding.

The results in these cases are, of course, the right results.  But lest one think that perhaps the fractured opinions in Nicastro were not such a tragedy after all, let me remind you that these are the easy cases.  These are the cases in which there are absolutely no facts -- other than sheer foreseeability that a product will wash up on a forum's shores -- to support the exercise of personal jurisdiction.  The real problem arises -- and in the wake of Nicastro, unfortunately will continue to arise -- where there may be some limited facts that tie a foreign defendant to the forum.  How much (or what type) of contact is enough to support the exercise of specific jurisdiction?  And general jurisdiction?   There no doubt will be a sea of opinions that attempt to answer that question, and the results will be anything but predictable.

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The Supreme Court issued an interesting decision today holding that the Federal Arbitration Act ("FAA") preempts any state law that would require consumer contracts including arbitration provisions to make class arbitration available.  The Court's analysis of the FAA's Savings Clause -- which broadly interpreted Congress's purposes and objectives in passing the FAA -- just goes to show that the Court continues to be all over the lot when it comes to preemption analysis.  Perhaps what is most interesting about the opinion is what it portends for Wal-Mart v. Dukes, which should be decided later this term.

In AT&T Mobility LLC v. Concepcion, No. 09-893 (U.S. Apr. 27, 2011), the plaintiff claimed AT&T should not have charged him sales tax on a phone it marketed as "free."  The mobile phone contract between the parties precluded class arbitration, providing instead that the plaintiff could proceed in arbitration only on an individual basis (or in small claims court).  It also required AT&T to make an initial settlement offer, pay the costs of all nonfrivolous claims submitted to arbitration, forego attorneys fees for itself, and pay a $7,500 minimum recovery and two times the plaintiff's attorneys fees if the plaintiff received an arbitration award that was more than AT&T's last settlement offer.

California's Supreme Court previously had held that including class action waivers in consumer arbitration contracts was unconscionable as a matter of California law. 

Section 2 of the FAA, however, provides that agreements to arbitrate are "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."  9 U.S.C. sec. 2 (emphasis added).  In a 5-justice majority opinion (Roberts, Scalia, Kennedy, Thomas, and Alito) written by Justice Scalia, the court held that California's common law rule was preempted by the FAA because California's rule "'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'"  Slip op. at 18 (citation omitted).  Specifically, "[r]equiring the availability of classwide arbitration interferes with the fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA."  Slip op. at 9.

As Justice Scalia explained, "The point of affording parties discretion in designing arbitration processes is to allow for efficient, streamlined procedures tailored to the type of dispute."  Slip op. at 10.  But the California rule -- which would operate in consumer disputes where there is a "contract of adhesion" -- operated directly contrary to the goal of streamlining the resolution of disputes.  Indeed, by creating a mandatory right to class arbitration, that rule provided a disincentive to product suppliers to provide for arbitration at all.  Slip op. at 13. 

The majority had some interesting things to say about the difference between individual and class proceedings -- things that may portend a reversal in Wal-Mart v. Dukes.  Most notable is that the majority recognized that when a class is involved, more formal structural protections are necessary to preserve the due process rights of absent class members and defendants:

This is obvious as a structural matter:  Classwide arbitration includes absent parties, necessitating additional and different procedures and involving higher stakes.  Confidentiality becomes more difficult.  And . . . arbitrators are not generally knowledgeable in the often-dominant procedural aspects of certification, such as the protection of absent parties.  The conclusion follows that class arbitration, to the extent it is manufactured by [the California rule] rather than consensual, is inconsistent with the FAA.

First, the switch from bilateral to class arbitration sacrifices the principal advantage of arbitration -- its informality -- and makes the process slower, more costly, and more likely to generate procedural morass than final judgment. . . . [B]efore an arbitrator may decide the merits of a claim in classwide procedures, he must first decide, for example, whether the named parties are sufficiently representative and typical, and how discovery for the class should be conducted. . . .

Second, class arbitration requires formality.  If procedures are too informal, absent class members would not be bound by the arbitration.  For a class-action money judgment to bind absentees in litigation, class representatives must at all times adequately represent class members, and absent members must be afforded notice, an opportunity to be heard, and a right to opt out of the class. . . .

Third, class arbitration greatly increases the risk to defendants. . . .  Defendants are willing to accept the costs of . . . errors in arbitration, since their impact is limited to the size of individual disputes, and presumably outweighed by savings from avoiding the courts. . . . We find it hard to believe that defendants would bet the company with no effective means of review, and even harder to believe that Congress would have intended to allow state courts to force such a decision.

Slip op. at 13-17.

None of these statements are particularly groundbreaking.  And yet, as I've noted at Point of Law, these are issues -- adequacy of representation, opt-out rights where money damages are involved, predominance and the due process rights of defendants -- that are front and center in the Wal-Mart v. Dukes case that is expected to be decided later this year.  The opinion in Concepcion suggests that there are at least five Justices who may be willing to take some of these issues head-on in the Dukes opinion.

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I have written a number of posts about the fact that making health claims in advertising is one of the surest ways to invoke the ire of the Federal Trade Commission and the Food and Drug Administration.  Indeed, sellers of breakfast cereals, over-the-counter medicines, and dietary supplements all have learned this lesson recently, settling false advertising claims with the FTC.

But not POM Wonderful, the maker of pomegranate products, including POM Wonderful juice and POMx dietary supplement pills and liquid.  The company, which has an aggressive marketing campaign centered around the health benefits of consuming pomegranate products, recently took on the FTC Clint Eastwood-style.  It filed a federal complaint in the District of Columbia, seeking a declaratory judgment that the FTC has violated the Constitution and the Administrative Procedure Act by effectively promulgating new rules that would prohibit POM Wonderful from engaging in speech about the health benefits of its products.

The crux of POM's complaint is that the FTC has told POM that the agency is now applying to all marketers a new standard set forth in recent settlements with Nestle and Iovate Health Sciences.  These settlements basically prohibit a marketer from making representations that its product is effective in preventing or curing diseases unless the representation is subject to a tentative or final Over-The-Counter ("OTC") drug monograph promulgated by the FDA or is the subject of an approved new drug application.  For statements about health claims like weight loss, the settlements generally require the marketer to rely on "competent and reliable scientific evidence that substantiates that the representation is true," which means having "at least two adequate and well-controlled clinical studies . . . conducted by different researchers, independently of each other, that conform to acceptable designs and protocols and whose results, when considered in light of the entire body of relevant and reliable scientific evidence, are sufficient to substantiate that the representation is true."  See FTC v. Iovate Health Sciences USA, Inc., No. 10-CV-587 (W.D.N.Y. July 29, 2010) (Stipulated Final Judgment and Order for Permanent Injunction and Other Equitable Relief).

POM's complaint alleges that it invested tens of millions of dollars funding scientific research into the health benefits of pomegranates based on the FTC's prior "substantiation standard," which POM alleges merely required a marketer to posses "'competent, reliable scientific evidence' to substantiate the representation."  POM alleges that, by requiring prior FDA approval for some types of statements and 2 independent studies for others, the "new FTC rules essentially bar POM from discussing or disclosing the results of its research and the benefits of its products."  This, according to POM, violates the First Amendment, amounts to a "taking" of a "substantial property interest in the scientific research [POM] has funded," is a violation of the Administrative Procedures Act, is an unlawful attempt to enforce the Food, Drug & Cosmetics Act, and exceeds the FTC's authority.

The FTC was not amused.  Less than 2 weeks later, it filed an administrative complaint challenging POM's advertising.  It sets out in copious detail the text of a variety of marketing materials for POM's juice, pill and liquid products.  They make claims about these products' ability to reduce the risk of prostate cancer, prolong the doubling time for prostate-specific antigen, decrease arterial plaque, improve blood flow, reduce blood pressure, and cure erectile dysfunction.  The ads often mention that POM has spent twenty million dollars or more on scientific studies, and often discuss those studies.

The FTC's complaint takes issue with the accuracy of POM's health statements and descriptions of the studies.  For example, in discussing cardiovascular benefits, the FTC noted:

[T]he Davidson Study showed no significant difference between consumption of pomegranate juice and a control beverage in carotid intima-media thickness progression rates after 18 months.  two smaller studies funded by POM Wonderful or its agents showed no significant difference between consumption of pomegranate juice and a control beverage on measures of cardiovascular function; and multiple studies funded by POM Wonderful or its agents did not show that POM Wonderful products reduce high blood pressure.

FTC Compl., para. 13.  Thus, the FTC challenges not only what studies POM relied on, but also the fact that POM knew of other studies that do not prove the statements they were making.

Much of the marketing that the FTC pointed to has been pulled down on POM Wonderful's website, but summaries of studies are on a related site, with links to the actual studies themselves.

This is shaping up to be a very interesting commercial speech battle in the field of consumer fraud law.  It remains to be seen whether POM Wonderful will have the staying power to see it through to the end.

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Once in a while, I pop off and say something I don't think is provocative -- like I did last week in saying that class actions are procedural tools that cannot deprive the defendant of putting on its defenses against individual class members' claims.  And then the firestorm begins.  That's a "naive" view, I've been told.  "Not very nuanced."  Even "unsophisticated."

It also happens to be right.  So you can imagine my glee when a loyal reader of this blog shared with me Justice Scalia's recent opinion granting a stay in a tobacco class action, Philip Morris USA Inc. v. Scott, No. 10A273, 561 U.S. ___ (2010).  In Scott, the defendant had sued in Louisiana state court on behalf of a statewide class of smokers, claiming that the defendants had defrauded the class by "distorting the entire body of public knowledge" about nicotene and its effects.  An intermediate appellate court had granted relief to the class, setting up a quarter-of-a-billion-dollar fund to provide smoking cessation programs to class members for ten years.  The Louisiana Supreme Court declined review, so the defendants are seeking review in the US Supreme Court and asked Justice Scalia for a stay of the judgment.

Justice Scalia granted the stay, which is newsworthy itself.  But even more important is what he said about consumer fraud class actions and due process in the opinion.  Now remember, the criteria for granting a stay requires a Justice to find that it's reasonably probable that certiorari will be granted, that the petitioner will prevail, and that the petitioner will be irreparably harmed.  With that framework in mind, get a load of this:

[T]he tort of fraud normally requires proof that the plaintiff detrimentally relied on the defendant's misrepresentations. . . .  But the Court of Appeal held that this element need not be proved insofar as the class seeks payment into a fund that will benefit individual plaintiffs . . .  Thus, the court eliminated any need for plaintiffs to prove, and denied any opportunity for applicants to contest, that any particular plaintiff who benefits from the judgment (much less all of them) believed applicants' distortions and continued to smoke as a result.

. . . The apparent consequence of the Court of Appeal's holding is that individual plaintiffs who could not recover had they sued separately can recover only because their claims were aggregated with others' through the procedural device of the class action.

The extent to which class treatment may constitutionally reduce the normal requirements of due process is an important question. . . .  [T]his suit typifies the sort of major class action that often will not be removable, and in which the constraints of the Due Process Clause will be the only federal protection. . . .  This constitutional issue ought not to be permanently beyond our review.

. . . I think it reasonably probable that four Justices will vote to grant certiorari, and significantly possible that the judgment below will be reversed. . . .  If expenditures cannot be recouped, the resulting loss may be irreparable. . . .  Funds spent to provide anti-smoking counseling and devices will not likely be recoverable.

Id. at 2-4.

Will the Supreme Court hold that a State violates due process by reading the reliance requirement out of consumer fraud class actions, but imposing it in individual cases for the same cause of action?  What protections are required by due process to preserve a class defendant's right to challenge the elements of absent class members' individual claims?  And what effect, if any, does the fact that this is purportedly "equitable" relief have on the due process analysis?

Holy imponderable questions, blog-man!

Tune in later this term.  Same blog time, same blog channel.

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Today's featured opinion has a somewhat tortured procedural history, but its ultimate holding -- that U.S. courts lacked personal jurisdiction over a foreign Alien Tort Statute defendant -- provides some encouragement for defendants who become mired in ATS litigation in the U.S.  See Kiobel v. Royal Dutch Petroleum Co., 02 Civ. 7618 (KMW) (HBP), Slip op. (S.D.N.Y. June 21, 2010) (Law360 subscription required).

The dispute in Kiobel and some related litigation centered around allegations that certain oil companies cooperated with agents of the Nigerian government to use violence to suppress protests of oil exploration and development.  The district court previously had granted a motion to dismiss brought by a Nigeria company, finding that America lacked personal jurisdiction over the company.  Plaintiffs in a related suit appealed an identical decision, and the Second Circuit reversed, ordering the district court to allow discovery into the facts surrounding the jurisdictional issues.  After having done so in this case, the court once again considered the defendant's motion to dismiss.  Judge Wood held that plaintiffs failed to assert jurisdictional facts sufficient to establish "continuous and systematic general business contacts" with the United States, which is required for the assertion of general jurisdiction.  See Slip op. at 2.

The Shell Petroleum Development Company of Nigeria ("SPDC") is a Nigerian corporation with its headquarters in Nigeria.  It has no office, place of business, address or phone in the U.S., and it is not licensed to business here.  Plaintiffs offered three reasons why SPDC should be subject to U.S. jurisdiction.

First, they claimed that SPDC's oil was shipped to the United States.  Judge Wood, applying Federal Rule of Civil Procedure 4(k) and the requirements of due process, held that this factor did not weigh in favor of jurisdiction.  To establish sufficient minimum contacts, plaintiffs must plead "continuous and systematic general business contacts" with the U.S.  Plaintiffs did not.  SPDC sold its oil FOB Nigeria to another company.  The ownership and risk of loss thus passed in Nigeria.  SPDC did not control who receives the oil, although the parties assumed for pricing purposes that roughly 60% went to U.S. companies.  Still, without more, "[s]ales of a foreign manufacturer's product in the United States by third parties are generally insufficient to establish jurisdiction over the foreign manufacturer."  Slip op. at 17 (citing cases).  The court concluded:

It is clear that customers located in the United States buy a substantial amount of the oil produced by SPDC and that SPDC made business decisions with respect to their contractual arrangements and operations in Nigeria based, in part, on its expectations concerning market conditions in the United States.  However, these facts do not suffice to confer general jurisdiction over SPDC, and plaintiffs cite no law to suggest otherwise.

Slip op. at 19.

Second, plaintiffs claimed that jurisdiction over SPDC was proper because the company would "cross-post" employees with other Shell companies in the United States to receive training.  Judge Wood distinguished this sort of educational travel -- which was designed to improve the employees' performance in Nigeria -- with travel designed to generate business in the United States.  SPDC's employees ceased to be SPDC employees during their posting, and they were not in the U.S. to generate business for SPDC.  Thus, the court concluded that these contacts were not the sort of continuous and systematic business contacts that give rise to general jurisdiction.  Slip op. at 21.

Third, plaintiffs claimed that because SPDC used a Shell employee recruiting and placement subsidiary to recruit new employees from the United States for SPDC in Nigeria, jurisdiction should lie.  The court rejected this argument, noting that the U.S. sub was not SPDC's agent:  it could not bind SPDC, it performed work for all Shell companies worldwide, and there was at least a three-year stretch where SPDC recruited no employees from the United States whatsoever.  These were not the type of continuous and systematic contacts that could support personal jurisdiction. 

Accordingly, the court held that the exercise of general jurisdiction over SPDC would not be consistent with due process, and thus it granted SPDC's motion to dismiss.  Although the court's ultimate conclusion is encouraging, it is troubling that it came in a case that has been going on for 8 years, with multiple rounds of discovery.  Sometimes justice can be very expensive indeed.

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Last week the Ninth Circuit issued an opinion that highlights the fact that no matter how broadly you draft the release in a class action settlement, you can't necessarily count on a subsequent court enforcing it.

In Hesse v. Sprint Corp., No. 08-35235, Slip op. (9th Cir. Mar. 2010), plaintiffs brought a class action against Sprint, alleging that it improperly charged Washington State's business and operations tax as a line item to its customers when the law disallows such a pass-through and instead requires it to be part of the company's "operating overhead."  Plaintiffs assert causes of action under Washington's Consumer Protection Act, breach of contract, and unjust enrichment.

Sprint moved for summary judgment in the trial court, holding that the action was barred by the release and judgment in a nationwide class action settlement entered by a Kansas state court (the "Benney Settlement") in 2006.  The Benney Settlement involved a class of Sprint customers who were charged various federal regulatory fees between 2000 and 2006.  The class in the Benney Settlement released:

any and all claims  . . . that have been, could have been, or in the future might be asserted in the [Benney] Action[] or in any other court or proceeding which relate in any way to the allegations that . . . Sprint failed to properly disclose or otherwise improperly charged for surcharges, regulatory fees, or excise taxes, including but not limited to the [federal] Regulatory Fees; and all other causes of action . . . whether based on federal, state, or local statute . . . that have been, could have been, may be, or could be alleged or asserted by any Class member . . . against [Sprint] relating to . . . the subject matter of any of the claims alleged in the Benney Action.  

Slip op. at 3852.

The plaintiffs in Hesse admittedly were members of the Benney class.  The question, then, was whether the release in the Benney Settlement precluded plaintiffs' claims premised on Sprint's charging of a state-law tax (Washington's B&O tax) when the underlying claim in the Benney action had been the charging of federal regulatory taxes.

The Ninth Circuit held that "the release cannot preclude the Washington Plaintiffs' claims because the Benney Class Plaintiff did not adequately represent the Washington Plaintiffs and because the Washington Plaintiffs' claims are based on a set of facts different from those underlying the claims settled in the Benney Settlement."  Id. at 3854.

The Ninth Circuit cited Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367 (1996) to conclude that although the subsequent class could not mount an all-out collateral attack on the prior state court judgment, it could seek limited review of whether the procedures in the prior litigation afforded them due process.  Slip op. at 3855.  The Ninth Circuit found that the Kansas court had not made an explicit finding that the class representative in the Benney Settlement adequately represented class members who also had claims based on state taxes.  Accordingly, the Ninth Circuit undertook its own analysis of the adequacy of representation in the Benney Settlement.

The Ninth Circuit held that because the named plaintiff in the Benney Settlement -- who, like me, hails from Missouri -- did not have claims based on Washington's B&O tax, he did not adequately represent the plaintiffs in the Hesse class.  This was not only because he did not "vigorously prosecute the claims relevant to this case," but also because he "had an insurmountable conflict of interest with those members of the class."  Id. at 3857-58.

The Ninth Circuit took care to indicate that it was not invalidating the Benney Settlement -- at least as to the release of all claims pertaining to the federal regulatory fees at issue in Benney.  Instead, it held "only that any release of the B&O Tax Surcharge claims at issue in this case by the judgment approving the Benney Settlement would violate due process."  Id. at n.5.

So are class action settlements only able to release the claims that the plaintiffs brought in the case?  The Ninth Circuit said no, a release may be broader than the claims stated, but only to a point:

A settlement agreement may preclude a party from bringing a related claim in the future "even though the claim was not presented and might not have been presentable in the class action," but only where the released claim is "based on the identical factual predicate as that underlying the claims in the settled class action."

Id. at 3860 (quoting Williams v. Boeing Co., 517 F.3d 1120 (9th Cir. 2008)).  The Ninth Circuit concluded that because "the Washington Plaintiffs' claims do not share an identical factual predicate with the claims resolved in the Benney Settlement," they were not derived from the same transaction or occurrence and thus could not be precuded by the Benney Settlement.

The Hesse opinion is an important read for all counsel who draft class action settlements.

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