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Kaixin Fan

Kaixin Fan is a member of the Litigation and Investigation and the Food, Drug, and Device Practice Groups. She has advised clients in various high-stakes disputes, including clients in the food, beverage, and consumer packaged goods industries in matters implicating consumer protection statutes. Kaixin also has experience in advising clients in complex investigations and counseling life sciences clients on FDA regulatory matters.

Kaixin maintains an active pro bono practice, with experience in the areas of housing, reproductive rights, and gender-based violence.

JAMS recently has become the latest arbitral institution to publish rules tailored to the unique issues presented by mass arbitration filings.  Mass arbitration filings have become a popular tactic among plaintiffs’ lawyers and a significant source of potential exposure for companies.

Effective May 1, 2024, parties agreeing to arbitration under the JAMS Rules will be able to opt into the application of the Mass Arbitration Procedures and Guidelines (the “Procedures”) and an accompanying Mass Arbitration Procedures Fee Schedule (“Fee Schedule”) for certain mass filings.  The Procedures and Fee Schedule include features similar to those available under the rules of other arbitral institutions, including the American Arbitration Association (the “AAA”) and National Arbitration and Mediation, including the designation of a Process Administrator to hear and determine preliminary and administrative matters in a more streamlined and cost-efficient manner.  For JAMS to assign a Process Administrator, the parties must pay a flat fee of $7,500, at least $5,000 of which shall be paid by the business in consumer mass arbitrations.

We previously discussed here the AAA’s mass arbitration procedures, which were last updated on April 1.  The Procedures adopted by JAMS differ from the AAA’s current mass arbitration procedures in several notable ways, including those summarized in the table below.Continue Reading JAMS Implements New Procedures for Mass Arbitrations

A court in the Southern District of New York recently dismissed a lawsuit alleging that an “All Natural” representation on the front label of defendant’s beverage products was false and misleading because the products contained synthetic citric acid and used vegetable and fruit juice concentrates for color.  Valencia v. Snapple Beverage Corp., 2024 WL 1158476 (S.D.N.Y. Mar. 18, 2024).Continue Reading SDNY Court Dismisses False Advertising Lawsuit Alleging “All Natural” is Misleading Based on Alleged Use of Synthetic Citric Acid

The American Arbitration Association (“AAA”) recently published a set of modified Mass Arbitration Supplementary Rules and a new Consumer Mass Arbitration and Mediation Fee Schedule, both effective January 15, 2024.  The modified rules and fee schedule aim to address the increasingly prevalent tactic of plaintiffs’ firms launching mass arbitration campaigns against defendants with arbitration agreements in their consumer contracts.

The AAA defines a mass arbitration as 25 or more similar demands for arbitrations filed against or on behalf of the same party or related parties where representation of all parties is consistent or coordinated across arbitrations.  The modified rules implement the following key changes:Continue Reading AAA Introduces Rule Changes Tailored for Mass Arbitrations

The ever increasing threats of mass arbitration have led many companies to re-examine the terms of their contracts with consumers and to include provisions intended to guard against such threats.  One of the options some companies may find themselves considering is doing away with the arbitration clause but keeping the class action waiver.Continue Reading NJ Supreme Court to Rule on Whether Class Action Waiver is Enforceable Absent an Arbitration Clause

A pair of malic acid decisions recently issued by Judge Coleman in the Northern District Court of Illinois reaffirmed that the statements “natural flavors with other natural flavors” and “no artificial flavors” receive different treatment under state false advertising laws, at least in that district.Continue Reading Illinois Federal Court Dismisses One False Advertising Suit Based on Malic Acid, While Sustaining Another

The Ninth Circuit recently affirmed summary judgment in favor of a manufacturer of glucosamine dietary supplements, holding that plaintiffs’ state law claims sought to impose requirements different from those under the federal Food, Drug, and Cosmetic Act (FDCA) and were thus preempted.  Hollins v. Walmart Inc., 67 F.4th 1011 (9th Cir. 2023).

Plaintiffs’ case targeted Walmart’s “Spring Valley Glucosamine Sulfate” product, later relabeled “Spring Valley Glucosamine Sulfate Potassium Chloride,” alleging that the product was mislabeled under California law because it did not actually contain glucosamine sulfate or glucosamine sulfate potassium chloride.  Rather, plaintiffs alleged that the product was comprised only of glucosamine hydrochloride, which purportedly does not offer the same clinical benefits.  The Ninth Circuit, in a split decision, affirmed the district court’s conclusion that plaintiffs’ claims under California law were preempted.Continue Reading Federal Law Preempts Plaintiffs’ Challenges to the Label of a Glucosamine Dietary Supplement, Ninth Circuit Holds

The Second Circuit recently revived a plaintiff’s false advertising claims under New York’s General Business Law (“GBL”), concluding that whether the particular statements at issue were non-actionable puffery requires a fact-intensive inquiry not suitable for resolution on a motion to dismiss.  MacNaughton v. Young Living Essential Oils, LC, No. 22-0344, 2023 WL 3185045 (2d Cir. May 2, 2023).Continue Reading Second Circuit Reiterates When Puffery Claims Can Be Dismissed at the Pleadings Stage

Judge Karas in the Southern District of New York recently dismissed two lawsuits alleging that defendants’ beverage products contained synthetic malic acid that functioned as a flavoring agent, rendering the “100% natural flavors” and “natural flavor with other natural flavor” claims on the product labels false and/or misleading.  Continue Reading New York Federal Court Dismisses Two False Advertising Suits Based on Malic Acid

A court in the Northern District of Illinois and a court in the Middle District of Florida recently arrived at opposite conclusions in two very similar putative class actions, both of which alleged that the claim “natural flavor with other natural flavors” on drink labels was misleading because synthetic malic acid was present in the product.Continue Reading Two Federal Courts Arrive at Opposite Conclusions in Suits Claiming “Natural Flavor with Other Natural Flavors” Is Misleading

A court in the Northern District of California recently dismissed a complaint brought against several beverage companies, including Coca-Cola, on behalf of a putative class of consumers and the Sierra Club.  Swartz v. Coca-Cola Co., No. 21-cv-04643-JD, 2022 U.S. Dist. LEXIS 209641 (N.D. Cal. Nov. 18, 2022).  Asserting claims under California and common law, plaintiffs alleged that the “100% recyclable” representation on single-use plastic bottles supplied by defendants is false and misleading because not all plastic bottles discarded into recycling bins are processed into reusable material.  Plaintiffs’ complaint cited to studies showing that recycling facilities in the U.S. lack the capacity to process most of the plastic waste generated, and not all plastic processed turns into material for reuse.  Resolving defendants’ motion to dismiss, the court acknowledged that “the question of consumer deception may be a factual matter unsuitable for resolution in a motion to dismiss,” but concluded that plaintiffs here failed to meet “the initial burden of pleading factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged as informed by judicial experience and common sense.” Continue Reading “100% Recyclable” Labels Are Not False Just Because Not All Plastic Bottles Are Recycled