After latest posts on the AHM (or Hippo) litigation, we learn the superb FDA reply temporary and thought of one more put up on the topic. With the oral argument earlier than the Fifth Circuit yesterday and extra briefs and selections to come back, we elected to cope with a subject that was not fairly so weighty. In some methods, you can’t get a lot farther from the problems in remedy abortion litigation to a choice on switch of venue in serial litigation over the labeling of sure over-the-counter medicines. In different methods, the problems overlap fairly a bit. Venue can actually matter. Getting earlier than the actual district choose who determined AHM—as an alternative of any of the opposite 672 district judges within the nation—was certainly a part of the plaintiffs’ technique in AHM. If that case had been transferred to the District of Maryland, the place APA challenges to FDA actions are normally determined, then we’d have anticipated very totally different district court docket rulings and a really totally different panel within the Fourth Circuit for any enchantment.
Plaintiffs in shopper fraud circumstances, like in product legal responsibility litigation, certainly attempt to sport the place their circumstances are heard. As well as, whereas state regulation claims in shopper fraud circumstances about FDA regulated medical merchandise can run smack into preemption and the AHM case concerned solely federal regulation “claims,” each hinge on invalidating or ignoring FDA selections. (We might go a step additional and be aware the large FDA information from final week pertains to the chance that progestin-only oral contraceptives will turn into accessible OTC. Though progestin-only hormonal contraceptives haven’t been the topic of as a lot product legal responsibility litigation as mixture hormonal contraceptives, OTC availability will certainly spawn a variety of litigation.)
Meza v. Procter & Gamble Co., No. EDCV 23-91 JGB (SHKx), 2023 WL 3267861 (C.D. Cal. Apr. 27, 2023), is certainly one of numerous challenges to labeling sure OTC medicines as “non-drowsy.” We have now written on how certainly one of these resulted in categorical preemption as a result of the monograph referred to as for labeling that was totally different than what the plaintiff urged. Meza concerned a well known household of OTC chilly, cough, and flu merchandise that include the identical cough suppressant, dextromethorphan. Apparently, one specific plaintiff agency has been submitting and dismissing circumstances across the nation that assert the identical fundamental claims towards the producers of any “non-drowsy” OTC medicines containing dextromethorphan. We have now been combating towards and writing about litigation tourism for a very very long time, however we will say this litigation as a complete entails among the most blatant discussion board buying we now have seen. So blatant, in reality, {that a} case was transferred from the district (the division throughout the district, even) the place the plaintiff lives and purchased defendant’s product to the district the place the defendant is headquartered. That’s not one thing you see each day.
Meza sought class remedy—nationwide and state-specific—for individuals allegedly duped into buying these well-known merchandise as a result of the labeling stated “non-drowsy,” although it additionally stated “might trigger drowsiness.” (We suspect that most individuals who store for chilly and cough remedy have an understanding that the “nighttime” variations have antihistamines and the “daytime” or “non-drowsy” variations don’t. An identical proportion of potential purchasers most likely additionally is aware of that dextromethorphan could make you fairly crazy, particularly for those who exceed advisable doses—see the opening scene in Stripes.) One factor refreshing in regards to the remedy of venue in Meza is that the court docket correctly centered on the plaintiff’s counsel, which had introduced greater than a dozen comparable class actions across the nation, relatively than the plaintiff, who they apparently recruited in order that they may carry Meza the place they introduced it. That is clearly a type of conditions the place the deal with the plaintiff’s counsel as resolution makers and actors gives a greater image of what’s actually happening.
What was happening was that Clay, the same case towards this defendant, was introduced by these legal professionals within the SDNY in 2021, however was dismissed proper after these legal professionals dropped the enchantment of the preemption resolution from the identical district that we talked about above. Just a few days after that, Meza was filed in the identical district the place a choose had beforehand rejected preemption in the same case these similar legal professionals had filed towards one other defendant. In truth, the Meza plaintiff bought defendant’s product throughout the district after the dueling selections had come down. The plaintiff legal professionals had the same case towards one more defendant within the SDNY dismissed when the choose adopted the prior SDNY resolution over the CD Cal resolution. Somewhat than transfer to dismiss Meza, the defendant moved to alter venue to the Southern District of Ohio. Whereas that was pending and shortly after the second SDNY resolution, the Meza plaintiff amended her grievance in an try to stay within the CD Cal and keep away from preemption. Received it?
The principles for switch of venue underneath 28 U.S.C. § 1404(a) are considerably fuzzy and throughout the discretion of the district court docket. There may be additionally an inference that the plaintiff’s alternative of discussion board holds absent a robust displaying on the contrary. 2023 WL 3267861, *3. Nonetheless, there’s a rising physique of regulation that “discussion board buying” is an efficient cause to reject plaintiff’s alternative. Id. The trick is to tell apart what’s discussion board buying from what’s a reliable alternative of discussion board. In our expertise, litigation vacationers stand out like, nicely, vacationers and ought to be topic to switch of venue underneath 1404 if they aren’t dismissed for lack of non-public jurisdiction. Even when the identical named plaintiff shouldn’t be bouncing round between courts, there may be “an equally sturdy inference of discussion board buying when parallel actions are filed by the identical regulation agency, and such strategic machinations by plaintiff’s counsel are equally discouraged underneath Part 1404(a).” Id. at *4. Somewhat than deny that the case was basically refiled with a distinct purported class rep to keep away from an antagonistic ruling within the SDNY, plaintiff’s counsel argued that the inclusion of California state shopper safety claims (as an alternative of New York shopper safety claims) made Meza totally different than Clay. The Meza court docket rejected plaintiff’s argument, noting that “the core allegations on this motion are copied and pasted verbatim from the grievance in Clay,” that the “substance of the lawsuits look like equivalent,” and that “[c]ases needn’t be equivalent for a court docket to attract an inference of discussion board buying from them.” Id. Plaintiff’s counsel had additionally voluntarily dismissed a minimum of 5 different circumstances towards different producers of “non-drowsy” merchandise in response to motions to dismiss. Id. at *5. As well as, although plaintiff’s counsel maintained two different “non-drowsy” SDNY circumstances after the primary preemption ruling, the Meza court docket noticed this as “choose buying,” which was simply as dangerous.
Plaintiff’s response was basically the schoolyard response: “no, you’re the discussion board shopper.” The defendant had not sought to alter venue in Clay and it had an antagonistic ruling within the CD Cal that will be price avoiding. Nonetheless, the Meza court docket rejected that argument, as a result of the defendant didn’t have proof of plaintiff’s counsel’s discussion board buying earlier than the dismissal in Clay and it was searching for switch to its house district, to not the SDNY. Id. Altogether, there was clear proof that plaintiff’s counsel was discussion board buying and, “since it is a putative class motion, and a nationwide one at that, the Court docket defers even much less to Plaintiff’s chosen discussion board.” Id. at *6. Thus, switch “would function a helpful deterrent to Plaintiff’s discussion board buying.” Id. The opposite components, which usually weighed in favor of switch, largely concerned case-specific evaluations which can be much less fascinating to the bigger points right here. Nonetheless, the truth that plaintiff sought a nationwide class motion—and he or she had bought the defendant’s merchandise so she might exchange a previous purported class rep—weighed towards there being higher ties between the events and the CD Cal than between the events and the SD Ohio. Id. at *7-8. So, the case was transferred to the SD Ohio, the place absent one other voluntary dismissal there’ll probably be a ruling on a movement to dismiss based mostly on preemption.
If you’re like us, then you definately may be questioning how these plaintiff legal professionals get away with all of those dismissals with out prejudice after the defendant has filed its movement to dismiss, amongst different issues. Effectively, there’s a little bit of a loophole in Fed. R. Civ. P. 41. Till the defendant has answered or moved for abstract judgment, the plaintiff can voluntarily dismiss with out prejudice with out the defendant’s settlement, the court docket’s permission, or any fee of the defendant’s charges. A movement to dismiss doesn’t rely, and plenty of defendants will transfer to dismiss on preemption up entrance, and with out a solution or any discovery, to assist scale back the prices of litigation. When this occurs, the plaintiff legal professionals can play the video games described above. Nonetheless, defendants shouldn’t overlook in regards to the choice to hunt prices of the prior motion “[i]f a plaintiff who beforehand dismissed an motion in any court docket information an motion based mostly on or together with the identical declare towards the identical defendant.” Fed. R. Civ. P. 41(d). Whereas this solely applies if it’s the similar plaintiff, nothing deters this model of discussion board buying fairly as a lot as footing the defendant’s payments.
