Business Litigation Alert Practical Perspectives on Litigation Developments & Trends

Monthly Archives: October 2011

Representations That Product’s Effectiveness is “Clinically Proven,” Though Not “Puffery,” Fail to Support State New Jersey Consumer Fraud Act and Implied Warranty Claims

By Michael R. McDonald on Posted in General Litigation

In Lieberson, the District Court for the District of New Jersey held that where a complaint does not allege whether or when the allegedly false advertisements appeared in magazines, and whether or when the plaintiff may have viewed them, they were “patently insufficient” to plead a New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2, claim and otherwise fail to satisfy Rule 9(b) . The Plaintiff in Lieberson alleged that Johnson & Johnson’s baby wash products falsely stated that they were “clinically proven” to help babies sleep better. The Lieberson court held that to properly plead a New Jersey Consumer Fraud Act claim with the specificity required under Rule 9(b), a plaintiff must identify the origin of the statements and that they were actually viewed by the plaintiff. Notably, however, the Lieberson court declined to conclude that the product label’s statements that the product was “clinically proven” to help babies sleep better was mere non-actionable “puffery.” On the contrary, the court found that “incorporation of the words ‘clinically proven’ . . . a statement that might otherwise be considered puffery, i.e., that the products will help babies sleep, was transformed into something that appears ‘both specific and measurable.’”

Third Circuit Adopts Later-Served Defendant Rule for Removal Petitions in Multi-Defendant Cases

By Jennifer A. Hradil on Posted in General Litigation

On October 12, 2011, the Third Circuit weighed in on what it referred to as a “deep circuit split.” In Delalla v. Hanover Insurance, the Third Circuit joined a majority of the other circuit courts in adopting the “later-served defendant” rule for determining whether a removal petition is within the thirty-day limitation under 28 U.S.C. §1446(b).

New Jersey Trial Court Can Sua Sponte Reconsider and Vacate Interlocutory Summary Judgment

By Mara E. Zazzali-Hogan on Posted in General Litigation

Everyone makes mistakes — even judges. And a recent ruling by the New Jersey Supreme Court in Lombardi v. Masso declared it well within a trial court’s discretion to correct its own error. Specifically, the Supreme Court held that a trial court can sua sponte revisit and vacate an interlocutory order (including one granting summary judgment) provided that specific procedures are followed. In so holding, the court rejected the argument that the law-of-the-case doctrine barred such reconsideration.

Gibbons to Host 5th Annual E-Discovery Conference – November 3, 2011

By Gibbons P.C. on Posted in E-Discovery, General Litigation

On November 3, the Gibbons E-Discovery Task Force will host its fifth annual full day E-Discovery Conference featuring five members of the Gibbons Business & Commercial Litigation Department – Melissa DeHonney, Scott J. Etish, Jennifer A. Hradil, Jeffrey L. Nagel, and Mara E. Zazzali-Hogan. Devoted to the latest developments in electronic discovery and corporate information management, this program will include several of the most respected names in the e-discovery field, including former United States Magistrate Judge John Hughes, e-discovery authority Michael Arkfeld, and representatives of leading corporations and e-discovery service providers. Additional Gibbons attorneys will present and moderate panels including, Task Force Chair, Mark S. Sidoti, Paul E. Asfendis, Luis J. Diaz, and Phillip J. Duffy.

Beware of Mutual Demand for Attorneys’ Fees in Arbitration Proceedings in Jurisdictions (Such as New York) Which Permit Award in the Absence of Statute or Agreement if Both Parties Demand Fees

By Jennifer A. Hradil on Posted in General Litigation

It is well-known that, generally, an arbitrator may award attorneys’ fees where the award is authorized by statute or where the parties have agreed that the prevailing party is entitled to fees. Nonetheless, parties in an arbitration often include a demand for attorneys’ fees as a matter of course even where neither circumstance exists. Depending upon the jurisdiction, this practice may have a negative impact.

No Class Certification in Consumer Fraud Case When Lead Plaintiff Seeks to Recant Critical Allegations in Complaint

By Christopher Walsh on Posted in Class Action

A lead plaintiff in a consumer class action who attempts to recant allegations in her complaint concerning the date she purchased the product at issue places her credibility in issue and, therefore, subjects her claim to unique defenses. Such a plaintiff may not be an adequate class representative under Rule 23(a)(4) and therefore may not be able to certify a class.

Third Circuit Addresses Tension Between Rules 8(a) and 9(b), Concluding That False Claims Act Plaintiffs Were Required to Meet Twombly/Iqbal Standard When Alleging Knowledge

By Melissa DeHonney on Posted in General Litigation

The Third Circuit has made it clear that the Twombly/Iqbal pleading standard — which requires plaintiffs to plead enough facts to state a claim “that is plausible on its face” — applies to allegations of states of mind, such as knowledge and intent, notwithstanding Rule 9(b)’s allowance that such matters “may be alleged generally.”