December 1 marks an important and long-awaited change to Federal Rule of Evidence 702. The Rule, pertaining to the testimony of expert witnesses, has not received a substantive update since 2000, when it was amended in the wake of the Daubert decision. Now, more than 20 years later—and after years of study—the Rule has been amended to make two issues clear: (1) that the proponent of an expert’s testimony must establish the admissibility of that testimony by a preponderance of the evidence; and (2) that an expert’s opinion must reflect a reliable application of his or her methodology to the case. These changes reinforce the key gatekeeping role that courts play in ensuring that only helpful, reliable expert testimony is heard by the factfinder.
A Closer Look: Second Circuit Steps In to Reverse Decision Refusing To Enforce “Click-Wrap” Mandatory Arbitration Agreement
On November 3, the Second Circuit reversed a lower court decision denying a motion to compel arbitration in a putative class action against Klarna. See Edmundson v. Klarna, Inc., 85 F.4th 695 (2d Cir. 2023). The decision offers guidance (and support) for companies looking to enforce similar “click-wrap” agreements with mandatory arbitration provisions.
Second Circuit Revives Mislabeling Claims Over “Reef Friendly*” Sunscreen
The Second Circuit recently revived a putative class action asserting false advertising and breach-of-warranty claims over “Reef Friendly*” sunscreen, providing another cautionary tale of how claims involving potentially ambiguous marketing language can survive a motion to dismiss even when clarifying language appears elsewhere on the product package.
In Richardson v. Edgewell, plaintiff challenged the
Bank Partnership Defeats Motion for Preliminary Injunction in “True Lender” Suit
A bank partnership that has recently been the target of a series of “true lender” attacks has defeated a California regulator’s motion for a preliminary injunction. The regulator sought the inunction as part of a lawsuit that seeks to hold the fintech firm Opportunity Financial LLC (“OppFi”) liable for violations of California’s usury laws. The court’s decision is a significant victory for companies that follow the bank partnership lending model to provide consumer loans.
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Presence of Eye Irritants in Eye Makeup Is Not Enough for Article III Injury, N.D. Cal. Judge Rules
A judge in the Northern District of California recently held that a purchaser of eye makeup allegedly containing eye irritants lacked standing to pursue her claims—given that the product was not banned by the FDA and did not actually harm her eyes.
Another Win for Preemption in Over-The-Counter Drug Labeling Case
Recently, there has been a proliferation of putative class actions targeting allegedly misleading statements (or omissions) on the FDA-approved labels for over-the-counter (“OTC”) drugs. Last year, we explained how these types of claims are vulnerable to a strong federal preemption defense. In short, because the Federal Food, Drug, and Cosmetic Act (“FDCA”) explicitly forbids states from imposing OTC labeling requirements that are “different from,” “in addition to,” or “otherwise not identical” with those provided under federal law, 21 U.S.C. § 379r(a), state-law claims that directly challenge or conflict with the FDA’s decision-making for OTC drug labels are expressly preempted.
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Fourth Circuit Holds that the Enforceability of Arbitration Agreements Containing Class Waivers Must Be Resolved Before Class Certification
A significant recent decision by the Fourth Circuit confirms that arbitration agreements that contain class-action waiver provisions can be a powerful tool to defeat class certification. In In re Marriott International, Inc., the Fourth Circuit observed that while “no court has had occasion to expressly hold as much,” the “consensus practice” of courts is to “resolve the import of waivers at the certification stage—before they certify a class, and usually as the first order of business.” 2023 WL 5313006, at *6 (4th Cir. Aug. 18, 2023). The Fourth Circuit held that courts must address the implication of an arbitration clause containing a class-action waiver before, not after, a class is certified. And because the district court in this case did not do so, the Fourth Circuit vacated the district court’s class certification ruling. Id. at *1.
Eleventh Circuit Updates Its Article III Standing Analysis
This blog previously covered the Eleventh Circuit’s July 2022 decision in Drazen v. Pinto, which held that all class members must have Article III standing in order to receive individual damages in a class settlement. 41 F.4th 1354 (11th Cir. 2022). Because the law in the Eleventh Circuit at the time held that a
Michigan Supreme Court Refuses to Enforce “Usury Savings Clause”
In a decision that will likely have ramifications for lenders and borrowers in the state, the Michigan Supreme Court recently issued a decision clarifying that lenders cannot rely on a “usury savings clause” to circumvent Michigan’s usury statute. But it also held that a lender’s effort to enforce a usurious loan, by itself, is not enough to trigger criminal liability.
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Split Supreme Court Weighs in on Corporate Consent to Personal Jurisdiction
Pennsylvania law requires foreign corporations to register to do business in the Commonwealth and provides that all registrants are subject to suit on “any cause” in the Commonwealth’s courts, regardless of a connection to the jurisdiction. In a split decision, the Supreme Court reversed a Pennsylvania Supreme Court decision finding that this general jurisdiction provision violated the Due Process Clause. Mallory v. Norfolk So. Railway Co., 600 U.S. __ (2023) (slip op. available here).
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