Since the start of the year, voluntary recalls have led to early dismissals in several putative class action cases. Courts issuing these rulings have based their decision on one of two grounds: (1) the prudential mootness doctrine, and (2) lack of Article III standing.
Continue Reading Recall Litigation Report: Voluntary Recalls Continue To Lead To Early Dismissal
The second half of 2022 proceeded much like the first, with manufacturers busy navigating recalls and related litigation, although not necessarily in that order.
Philips CPAP/ BiPAP Machines Still Under Fire
Philips is still battling an onslaught of cases stemming from a June 2021 recall of CPAP and BiPAP breathing machines, including a consolidated consumer class action, In re Philips Recalled CPAP, Bi-Level PAP, & Mechanical Ventilator Products Liability Litigation, No. 2:21-mc-01230 (W.D. Pa.), MDL No. 3014, and a medical device supplier suit, Baird Respiratory Therapy, Inc. v. Philips, 2:22-cv-00886 (E.D. Pa.). Since early 2021, there have been reports of over 260 deaths and thousands of health problems associated with the degrading polyurethane foam found in these devices, which was used inside millions of CPAP and BiPAP machines for over a decade. Philips claims that it has produced over 3.95 million repair kits and replacement devices to date and continues to research potential health risks to users from its machines. Despite these efforts, its legal troubles will continue into 2023, with even more consumer-facing lawsuits, including Braverman v. Koninklijke Philips N.V., No. 2:22-cv-7927, which was first filed at the end of December 2022 in the U.S. District Court for the Eastern District of New York and is one of the first CPAP/BiPAP suits to allege the inhalation of the toxic foam particles caused mouth and tongue cancer.
Continue Reading Recall Litigation Report: Year in Review (2022)
In Watson v. Manhattan Luxury Automobiles, the Southern District of New York weighed in on the ongoing debate over whether scientific evidence offered in relation to a motion for class certification must meet the Daubert standard of reliability, which has been the subject of a deepening circuit split. In dicta, the Supreme Court implied that expert evidence at the class certification stage likely would be required to meet the standards of Daubert in at least some circumstances, but it has yet to definitely decide the issue. The Third, Fifth, Seventh, Ninth, and Eleventh Circuits require scientific evidence to satisfy a full Daubert analysis at the class certification stage, while the Eighth Circuit requires only a “limited” Daubert analysis. The remaining circuits, including the Second Circuit, have not yet issued clear rulings on the matter.
After more than two years of deliberation, the Eleventh Circuit issued its decision in Gil v. Winn-Dixie on April 7, 2021. Writing for the majority, Judge Elizabeth Branch reversed a trial court decision and found that Winn-Dixie’s website, which is incompatible with screen reading software used by the plaintiff, who is blind, did not violate Title III of the Americans with Disabilities Act (“ADA”). In doing so, the court’s opinion in this closely-watched case advances the law in several frequently litigated issues in ADA Title III website accessibility disputes.
The Eleventh Circuit’s decision includes two key takeaways: (1) that websites are not “places of public accommodation” under the ADA; and (2) a rejection of the “nexus” standard, notably adopted by the Ninth Circuit. In what it described as a strict textual reading of the ADA, the majority concluded that the retailer’s website was not a “place of public accommodation” within the meaning of the ADA. Judge Branch emphasized that the statute includes an “expansive list” of examples of public accommodations—all of which are physical locations, not websites. The court further reasoned that the website’s functionality did not interfere with the plaintiff’s right to “full and equal enjoyment” of a place of public accommodation, because he had visited its physical locations on many occasions.
The majority also rejected the plaintiff’s theory that the grocery store violated the ADA because its website was a “nexus” to its physical locations, and thus must be accessible to people with disabilities. Among other courts, the Ninth Circuit adopted the “nexus” theory in its widely-publicized 2019 opinion in Robles v. Domino’s.
The Eleventh Circuit also rejected the plaintiff’s alternative theory of liability under the ADA. Gil argued that the website’s inaccessibility created an “intangible barrier” to the goods and services at the brick-and-mortar store. The court rejected this claim, focusing on the fact that the website had “limited use” and was not the sole access point to the store. Language in the majority opinion supports a relatively narrow interpretation of the statutory “auxiliary service” issue that is frequently litigated in ADA Title III cases. See 42 U.S.C. § 12182(b)(2)(A)(i)-(ii).
Penning a dissent as long as the majority’s opinion, Judge Jill Pryor explained, “[t]he ADA is a sweeping piece of legislation; it is hardly surprising that its terms prohibiting discrimination are broad and inclusive.” By narrowing the applicability of the ADA, Judge Pryor worried about the unintended consequences. “As I read it, the majority opinion gives stores and restaurants license to provide websites and apps that are inaccessible to visually-impaired customers so long as those customers can access an inferior version of these public accommodations’ offerings.”
Continue Reading Website Wars: Eleventh Circuit Rules in a Split Decision That Websites are Not Public Accommodations for Purposes of the Americans With Disabilities Act
On June 29, 2020, the United States District Court for the Southern District of New York dismissed a challenge by several landlords to quash New York Governor Andrew Cuomo’s Executive Order 202.28 (the “Executive Order”), issued on May 7, 2020.
The Executive Order, among other things, imposed a moratorium on commercial and residential evictions during
Retail tenants are experiencing unprecedented difficulties stemming from the COVID-19 pandemic, including government shutdown orders for non-essential businesses and shelter-in-place rules that have virtually stopped all in-person shopping. Even as these restrictions are finally being relaxed to a limited degree, the dramatic effects of the pandemic will long be felt in the retail industry. This
On June 3, 2020, the United States Bankruptcy Court for the Northern District of Illinois issued one of the first decisions to apply a force majeure clause to a commercial tenant’s rent obligations in the wake of a COVID-19 government-mandated shutdown. Pursuant to an Illinois executive order, restaurant operations were limited to curbside pickup.
The
COVID-19 has disrupted and will continue disrupting supply chains in many important ways, as suppliers, carriers and buyers navigate the global pandemic. But does the pandemic allow activation of force majeure clauses in your contracts? If a force majeure clause is activated, what are the rights and responsibilities of each party during the pandemic? When