Under a Legal Cloud, Juul Jostles Over Which Judge Should Decide Lawsuits
Juul Labs Inc. is hoping to send more than 30 lawsuits brought over its e-cigarettes to San Francisco, but some plaintiffs lawyers have suggested judges in New Jersey and Maryland.
September 05, 2019 at 04:47 PM
6 minute read
Juul Labs Inc. is hoping to move a steady stream of lawsuits brought over its e-cigarettes to a federal courtroom in San Francisco—but first, it has to snuff out some competition.
So far, more than 30 lawsuits allege that Juul, founded in 2015, has targeted teenagers and young adults with misleading marketing that fails to disclose the actual nicotine content of its e-cigarettes. Juul, based in San Francisco, filed a motion asking the U.S. Judicial Panel on Multidistrict Litigation to send all the lawsuits to U.S. District Judge William Orrick of the Northern District of California.
"The cases are very, very similar to one another," said Adam Gutride, of San Francisco's Gutride Safier, a plaintiffs lawyer who supports Juul's motion. "They involve the same thing, which is that Juul unfairly and unlawfully marketed this product to young people without disclosing the severe risks of the product and, in addition, it had a defective product design that was likely to increase harm to users."
Other plaintiffs lawyers, however, have pushed for New Jersey or Maryland, where a federal judge issued a groundbreaking ruling earlier this year against the U.S. Food and Drug Administration over the timeline of its approval of e-cigarettes.
The panel set arguments for its Sept. 26 hearing in Los Angeles.
Juul's devices look like USB drives and require disposable nicotine cartridges called "JUULpods." The e-cigarettes, heavily advertised on social media platforms, come in various flavors, like cucumber and mango, prompting concerns that Juul has targeted minors and contributed significantly to a nicotine addiction epidemic sweeping America's youth.
In July, Juul executives testified before a U.S. House subcommittee. The FDA and state regulators also are looking at e-cigarettes: North Carolina Attorney General Josh Stein has sued Juul, and Connecticut Attorney General William Tong launched an investigation.
The cases span a dozen states. In addition to those in federal courts, about a dozen are pending in California state courts, and one in Ohio. About half the cases are class actions filed on behalf of consumers asserting Juul misled them about the nicotine levels in its products, while the remaining lawsuits come from individuals, mostly minors, who claim they suffered injuries such as strokes and collapsed lungs after using Juul's products.
In the July 29 motion before the panel, Juul attorney Austin Schwing, a partner at Gibson, Dunn & Crutcher in San Francisco, insisted that his client's products helped smokers quit cigarettes and did not entice young people to become addicts.
"JLI's mission is to improve the lives of the world's 1 billion adult smokers by eliminating cigarettes," he wrote. "Nevertheless, some, like the plaintiffs in these lawsuits, have mounted sweeping, policy-based attacks on JLI and its products simply because they contain nicotine, disregarding the enormous public health benefit Juul products can offer when used as intended by adult smokers as an alternative to combustible cigarettes."
Last year, Philip Morris USA parent company Altria Group Inc. purchased a 35% share in Juul. About half the lawsuits now name Altria as an additional defendant, and some allege a conspiracy under the U.S. Racketeer Influenced and Corrupt Organizations Act. Altria, represented by John Massaro of Arnold & Porter Kaye Scholer in Washington, D.C., has joined in Juul's transfer motion.
Several plaintiffs lawyers support Juul's transfer motion, including Gutride, who filed the first case, a nationwide class action, in April 2018. On Oct. 30, Orrick found that the Federal Food, Drug, and Cosmetic Act, as amended by the Tobacco Control Act, preempted claims in the class action about Juul's labeling but that those involving its advertising and marketing could go forward, if amended. On Aug. 23, after plaintiffs attorneys filed a new complaint, Orrick allowed most of the claims to go forward and denied Juul's motion to compel arbitration as to some of the named plaintiffs.
"We are the ones who developed this case, and we filed it months before anyone else did," said Gutride, whose firm is co-lead counsel. "We have actively been litigating the case, so Judge Orrick is intimately familiar with this case at this point and made substantive rulings."
A competing proposal from Scott Schlesinger, of Schlesinger Law Offices in Fort Lauderdale, Florida, suggested the Juul cases go to U.S. District Judge Paul Grimm of the District of Maryland. Grimm is overseeing a separate case brought by several public health organizations challenging the FDA's decision to extend the deadline to 2020 for e-cigarette companies to comply with the Tobacco Control Act.
On May 15, Grimm found that the FDA had violated the Administrative Procedure Act and vacated the agency's 2017 guidance. He updated that order July 11 to require manufacturers to submit applications for premarket authorization of their products within 10 months. Several vaping industry groups have indicated plans to appeal the ruling, and the Vapor Technology Association last month filed a lawsuit against the FDA. It added a motion for injunction this week, seeking to halt the new deadline to avoid a "mass exit of vapor products from the U.S. market."
"Thus, Judge Grimm is familiar with and is actively considering some of the central issues that are common to all the cases subject to Juul's transfer motion," wrote Schlesinger, who has a pending injunction motion in his own case to stop the sale of Juul's e-cigarettes.
Another plaintiffs lawyer, Andy Birchfield, of Beasley, Allen, Crow, Methvin, Portis & Miles, proposed a "novel approach" to the "extraordinary nature of the Juul epidemic." In an Aug. 20 motion, he suggested that the panel send the class actions to Orrick and the individual personal injury lawsuits to New Jersey, before U.S. District Judge Brian Martinotti.
"There is little doubt that the Juul litigation will be vast and complex," he wrote. "Intermingling multiple nationwide class actions and individual-plaintiff personal injury claims would unnecessarily exacerbate the complexity."
In particular, he wrote, class action issues would delay justice for individual plaintiffs with injuries if the panel combined both cases before a single judge. Birchfield's firm has filed eight individual suits and is investigating hundreds of injury claims.
Juul, in an Aug. 27 reply filed before the panel, called the New Jersey proposal an "invitation to engage in forum or judge-shopping," and the idea of splitting the cases a "logistical nightmare."
Gutride also was skeptical the panel would approve two MDLs.
"I'm not aware of the MDL panel doing anything like that before," he said, "and I don't think it will happen here."
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllDog Gone It, Target: Provider of Retailer's Mascot Dog Sues Over Contract Cancellation
4 minute readApple Asks Judge to 'Follow the Majority Practice' in Dismissing Patent Dispute Over Night Vision Technology
Hueston Hennigan Secures Dismissal of SEC Action Against Ex-PwC Auditor in Mattel-Linked Case
Walmart agrees to pay $7.5 million to settle California suit over hazardous waste
3 minute readTrending Stories
- 1Gibson Dunn Sued By Crypto Client After Lateral Hire Causes Conflict of Interest
- 2Trump's Solicitor General Expected to 'Flip' Prelogar's Positions at Supreme Court
- 3Pharmacy Lawyers See Promise in NY Regulator's Curbs on PBM Industry
- 4Outgoing USPTO Director Kathi Vidal: ‘We All Want the Country to Be in a Better Place’
- 5Supreme Court Will Review Constitutionality Of FCC's Universal Service Fund
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250