from health-focused marketing to unappetizing litigation class action ebook.pdf · from...

From Health-Focused Marketing to Unappetizing Litigation: The Latest Trends in Food Labeling and Advertising Class Actions

Tuesday, July 31, 2012

arnoldporter.com

Tuesday, July 31, 20128:30 − 10:00 a.m. (PDT)

11:30 a.m. – 1:00 p.m. (EDT)

Table of Contents

Agenda ........................................................................................................................ Tab 1

Presentation Slides .................................................................................................... Tab 2

Presenter Biographies ............................................................................................... Tab 3Angel A. Garganta, Trenton H. Norris, Rhonda Stewart Goldstein, Jonathan L. Koenig

Practice Overview ...................................................................................................... Tab 4Consumer Protection and Advertising practice description

Selected Food Products Litigation Experience and Credentials ........................... Tab 5

Supporting Materials.................................................................................................. Tab 6

Food Class Action Update Recent Developments in the Law

From Health-Focused Marketingto Unappetizing Litigation:

The Latest Trends in Food Labeling and Advertising Class Actions

� July 19, 2012

� July 5, 2012

� June 25, 2012

� June 15, 2012

� June 4, 2012

� May 15, 2012

� May 7, 2012

� April 27, 2012

� April 19, 2012

� April 11, 2012

� April 3, 2012

� March 27, 2012

� March 22, 2012

� March 19, 2012

Tab 1: Agenda

arnoldporter.com

From Health-Focused Marketing to Unappetizing Litigation:


Tuesday, July 31, 20128:30 − 10:00 a.m. (PDT)

11:30 a.m. – 1:00 p.m. (EDT)

Agenda

8:30–8:35 a.m. Introduction

8:35–9:50 a.m. Presentation and Discussion

Presenters: Angel A. Garganta, Partner, Arnold & Porter LLP, San Francisco

Trenton H. Norris, Partner, Arnold & Porter LLP, San Francisco

Rhonda Stewart Goldstein, Associate, Arnold & Porter LLP, San Francisco

Jonathan L. Koenig, Associate, Arnold & Porter LLP, San Francisco

9:50–10:00 a.m. Question-and-Answer Session

1.5 hours of NY and CA CLE credit is pending. All other credit is pending and not guaranteed.

Tab 2: Presentation

arnoldporter.com

From Health-Focused MarketingFrom Health-Focused Marketing to Unappetizing Litigation:


Arnold & Porter LLPLaw and Policy Series

WebinarJuly 31, 2012

Presenters

Angel A. GargantaPartner

Trenton H. NorrisPartner

Rhonda Stewart Goldstein Jonathan L. Koenig

1

Rhonda Stewart GoldsteinAssociate

Jonathan L. KoenigAssociate

What Are Plaintiffs Attacking?

2

Products that contain allegedly unhealthy ingredients (e.g., trans fat, saturated fat, g ( gHFCS, sugar)

3

Health-benefit claims (e.g., Proven to Reduce Cholesterol, Supports Immunity, Benefits Brain pp yHealth, Combats Hangovers, Life-Enhancing)

4

Ingredient Quality (e.g., 100% Pure Florida Squeezed, 100% Pure Coconut Water, Kona qBlend, Fresh, Hot, and Delicious)

5

All Natural (e.g., products allegedly containing GMOs, synthetic or artificial ingredients)y g )

6

Purported Misbranding (e.g., nutrient content claims, good source claims, antioxidant claims)g )

7

Who’s Behind The Litigation?

Reese Richman LLP

Braun Law

Janet LindnerSpielberg

8

Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C.

Pratt & Associates

Responding to Pre-Litigation Demands

Defense Litigation Strategies

Responding to Pre Litigation Demands

Pre-Litigation Settlement

Standing/Pleading Motions

Opposing Class Certification

Summary Judgment

Class-Wide Settlement

Trial

9

Make your defense case early?

Responding to Pre-Suit Demands

Make your defense case early?

Show good faith

Consider risk of FTC and State AG actions

10

Cost-Benefit Analysis

Pre-Litigation Settlement

Cost Benefit Analysis– Cost of pre-litigation settlement

• Can the pre-litigation settlement be kept confidential?

• Consider risk of copy-cat lawsuits

• Consider risk of reputational harm

– Compare to costs and benefits of a court-approved class-wide settlementclass-wide settlement

– Consider chances of success at pleadings, class certification, or summary judgment stages

11

Motion to Dismissand

Summary Judgment

12

How likely is it that the court will make a final

Motion to Dismiss or Answer

How likely is it that the court will make a final ruling on the pleadings?

If the court grants your motion to dismiss, with leave to amend, will plaintiff’s improved complaint help her case and hurt yours?

What are the advantages of waiting to attackWhat are the advantages of waiting to attack plaintiff’s claims at the class certification stage, or on summary judgment?

13

Speculative Injury

Lack of Standing

Speculative Injury – Plaintiffs allege that they would not have purchased

the product if they knew it contained [X]

– [X] is not harmful

– Is the alleged injury too speculative?

14

Article III Standing

Lack of Standing

Article III Standing

Standing under state consumer laws

Did plaintiffs actually rely on the statement?

Would a consumer reasonably rely on the challenged statement?

Did th d ti i th t Did the advertising cause the consumer to purchase the product?

Did the plaintiff suffer any injury?

15

In re Fruit Juice Products Mkt’ing, 11md2231 (D. Mass.)

Lack of Standing

g, ( )

– Plaintiffs challenged the advertising of products containing lead at levels the FDA determined to be safe.

– Plaintiffs claimed two grounds for standing:• Health Risk: The products put plaintiffs at risk of future harm

of lead poisoningp g

• Economic Injury: Plaintiffs would not have bought the products if they knew they contained lead

16

In re Fruit Juice Products Mkt’ing, 11md2231 (D. Mass.)

Lack of Standing

g, ( )

– Health Risk• Rejected: failed to show a “credible or substantial threat”

• “Plaintiffs’ risk of future harm is too speculative to constitute injury in fact.”

– Economic Injury • Rejected: products were not valueless, as Ps claimedj p ,

• “The fact is that Plaintiffs paid for fruit juice, and they received fruit juice, which they consumed without suffering harm.”

17

Compare…

Lack of Standing

p– Askin v. Quaker Oats Co., 11cv111 (N.D. Ill.)– Plaintiff claimed that he paid a premium for a

granola bar free of trans fats.– Court declined to analyze standing based on

future health concern, although plaintiff claimed that he would not have purchased the products had he known of the alleged health risks.

– Held “price differential represents a concrete injury-in-fact,” even though plaintiff was not physically harmed.

18

Iqbal and Twombly

Plausibility & Particularity

Iqbal and Twombly– Complaints must allege facts that state a claim that

is “plausible on its face.”

Pleading Fraud With Particularity– The complaint must state the who, what, when,

where, and how of the misconduct charged.

19

“[G]eneral allegations [Plaintiff] makes about

Failure to Properly Plead

[ ] g [ ]– when he purchased the product, – where he purchased it,– and how he was made aware of [alleged]

representations – do not afford [defendant] adequate opportunity

to respond.” In re Wesson Oil Marketing and Sales Practices

Litigation, 11md02291 (C.D. Cal.) (claims arose under California’s consumer protection laws)

20

Preempted Claims

Preemption

Preempted Claims– Failure to disclose source of fiber (as natural

or “processed”)• Turek v. General Mills, No. 10-3267 (7th Cir. Oct. 17, 2011)

– Failure to disclose GMO ingredients• In re: Wesson Oil Marketing and Sales Practices Litigation,

11md02291 (C D Cal Nov 23 2011)11md02291 (C.D. Cal. Nov. 23, 2011)

– “Misleading” labeling of fat contents (95% fat free)• Kuenzig v. Kraft Foods, et al., 11cv838 (M.D. Fla.

Sept. 12, 2011)

21

Non-preempted claims

Preemption

– Claim that an affirmative “all natural” statement is misleading.• Holk v. Snapple Beverage Corp., 575 F.3d 329, 342 (3d Cir. 2009)• In re: Wesson Oil Marketing and Sales Practices Litigation, 11md02291

(C.D. Cal.)

– Claim based on violation of California’s Sherman Law and FDA Regulations.

• Delacruz v. Cytosport, 11cv3532 (N.D. Cal.) – Cytosport argued that FDA regulations could not be enforced by private

action and that therefore plaintiff’s state law claims based on allegedaction, and that therefore plaintiff s state law claims based on alleged violations of FDA regulations were preempted.

– The court rejected this argument relying on the California Supreme Court decision in Farmed Raised Salmon Cases to conclude that the FDCA does not preempt private enforcement of state laws, such as the Sherman Food, Drug, and Cosmetics Law, which adopt requirements identical to the FDCA.

22

Hairston v. South Beach Beverage Co., 12cv1429

Limited Preemption of Natural Claims

g(C.D. Cal.)– Plaintiff challenged the labeling of SoBe Lifewater beverages,

including: (1) the statement “all natural with vitamins,” (2) fruit names used to describe the flavors of the beverages, and (3) labeling of vitamins by their common names.

– The court held that federal labeling law preempted any claims relying on the fruit and vitamin names.

– The court went on to conclude that “Plaintiff cannot state aThe court went on to conclude that Plaintiff cannot state a claim…regarding Defendants’ allegedly deceptive ‘all natural’ labeling because once the preempted statements regarding fruit names and vitamin labeling are removed, Plaintiff’s claim is based on a single out-of-context phrase found in one component of Lifewater’s label.”

23

Astiana v. Dreyer’s Grand Ice Cream, Inc.,

Limited Preemption of Natural Claims

y , ,11-cv-02910 (N.D. Cal.)– Plaintiff challenged “All Natural Flavors” (Dreyer’s and Edy’s)

and “All Natural Ice Cream” (Haagen-Dazs) claims.

– The state law claims regarding Dreyer’s and Edy’s statements that their ice cream contained “All Natural Flavors” were dismissed as preempted.

Rationale: Section 403(k) of the FDCA and its implementing– Rationale: Section 403(k) of the FDCA and its implementing regulations define artificial flavoring and expressly preempt state law requirements that are not identical.

– The state law claims regarding the Haagen-Dazs label stating “All Natural Ice Cream” were not dismissed.

24

Is the issue one of first impression?

Primary Jurisdiction

s t e ssue o e o st p ess o

Does resolution require the specialized knowledge or expertise of an agency?

Is there any indication that the agency intends to provide guidance?

Has the agency affirmatively declined to Has the agency affirmatively declined to provide guidance?

25

Some courts have dismissed class actions alleging th t d ti i l i f l d ti i l

Prior Substantiation Claim

that advertising claims are false or deceptive simply because they are unsubstantiated.

Allowing a private action based on the mere allegation that the defendant lacked substantiation improperly shifts the burden of proof to the defendant.

“In short, the government…can sue an advertiser forIn short, the government…can sue an advertiser for making unsubstantiated advertising claims; a private plaintiff cannot.” Chavez v. Nestle, 09cv9192 (C.D. Cal. May 19, 2011) appeal docketed, No. 11-56066 (9th Cir. June 23, 2011).

26

Magnuson-Moss Warranty Act

Warranty Claims

g y– Courts have dismissed claims under the MMWA on the

ground that food product claims were merely product descriptions that did not constitute warranties.

• Larsen v. Trader Joe’s Co., 11cv5188 (N.D. Cal.) (dismissing Magnuson-Moss breach of written warranty allegations regarding claims that a food product is “All Natural” or “100% Natural”)

• Hairston v South Beach Beverage Co 12cv1429 (C D Cal )• Hairston v. South Beach Beverage Co., 12cv1429 (C.D. Cal.) (dismissing Magnuson-Moss allegations regarding Lifewaterlabel stating “all natural with vitamins”)

• Littlehale v. The Hain Celestial Group, Inc., 11cv6342 (N.D. Cal. July 2, 2012) (dismissing Magnuson-Moss allegations regarding statements that products are “Pure Natural” and “All Natural”)

27

– Weiner v. Snapple Beverage Co., 07cv8742 (S.D.N.Y.)C t d i d l tifi ti d l t t d S l ’

Summ. Judg.: Before or After Class Cert?

• Court denied class certification, and later granted Snapple’s motion for summary judgment.

• Plaintiffs “failed to present reliable evidence that they paid a premium for Snapple’s ‘All Natural’ label.”

– Chavez v. Blue Sky Natural Beverage Co., 06cv06609 (N.D. Cal.)

• Court denied Blue Sky’s motion for summary judgment and granted class certification simultaneously.

• Court cited evidence of Blue Sky’s marketing strategies andCourt cited evidence of Blue Sky s marketing strategies and plaintiff’s statements of reliance.

– Applebee’s Menu Labeling Litigation• Courts in KS, OH, and CA ruled for Applebee’s on the merits

before class cert.

28

Class Certification

29

Plaintiffs must demonstrate that their claims

Opposing Class Certification – Dukes

Plaintiffs must demonstrate that their claims “depend upon a common contention” that is “capable of classwide resolution.” Dukes v. Walmart,180 L. Ed. 2d at 389.

This means “that determination of its truth or falsity will resolve an issue that is central to the yvalidity of each one of the claims in one stroke.” Id. at 389-90.

30

What does Dukes mean for food class actions?

Opposing Class Certification

Ammunition when:– Plaintiffs challenge claims about several aspects of

a product

– Plaintiffs challenge several differently worded claims

– Advertising language or prominence of claim varied over timeover time

– Challenged claims varied among products purchased by the class

– Product characteristics varied by time or by product

31

Defendant Win:

Class Certification

– Renewed motion for class certification denied because even under subclasses “individual class members, to recover, would need to show, at a minimum, proof of how many purchases they made of the offending products, where and when, in order to discern [damages].” Red, et al. v. Kraft Foods, 10cv01028 (C.D. Cal. 2012)

Plaintiff Win:– The alleged injury stemmed from “a common core of

salient facts” because the campaign had “little to no variation.” Johnson v. General Mills, 10cv00061 (C.D. Cal. 2011)

32

Mazza et al. v. American Honda Motor Co.,

Class Cert. – Nationwide Classes

Mazza et al. v. American Honda Motor Co., No. 09-55376 (9th Cir. Jan. 12, 2012)

– District Court certified a nationwide class.

– Ninth Circuit decertified the nationwide class:• “[V]ariances in state law overwhelm common issues and

preclude predominance for a single nationwide class.”

• CA only class would fail because the class would “almostCA only class would fail because the class would almost certainly includes members who were not exposed to, and therefore could not have relied on, Honda's allegedly misleading material.”

33

Similar rulings in recent food class actions:

Class Cert. – Nationwide Classes

– Red et al. v. Kraft Foods Inc., et al, 10cv01028 (C.D. Cal. Sept. 29, 2011)

• Declining to certify a nationwide class based solely on the grounds that Kraft engaged in nationwide marketing.

– In re Ferrero, 11cv00205 (S.D. Cal. Nov. 15, 2011)• Declining to apply California law to a nationwide class of consumers.

But see… – Bruno v. Eckhart Corp., 11cv00173 (C.D. Cal.)

D li i t d tif l ti d M• Declining to decertify a class action under Mazza.• “[N]either Mazza nor any federal court could change the California

Supreme Court’s express holding that California’s choice-of-law analysis requires analyzing various states’ laws ‘under the circumstances of the particular case’ and given ‘the particular [legal] issue in question.’”

34

Settlement

35

The conundrum: how to satisfy the plaintiffs

Settlement

The conundrum: how to satisfy the plaintiffs (and their counsel) and move on?

36

Considerations

Settlement

Considerations– Nationwide or statewide?

– Adequate relief to the class

– Capping attorneys’ fees

– FTC and State AG follow-on cases

37

Approved Settlement

Settlement

Approved Settlement– On July 9, 2012, a federal judge in California

entered an order approving settlement in the Nutella class action.

– The court awarded just over $1M in attorneys’ fees and costs to class counsel.

– The settlement creates a fund of $550,000 against which California consumers can make claims and receive a refund.

– In re Ferrero Litigation, 11cv205 (S.D. Cal.)

38

Rejected Settlement

Settlement

j– The Ninth Circuit set aside a $10.6M class action

settlement intended to resolve suits challenging the marketing of Kellogg’s cereals as healthy or nutritious.

– The Ninth Circuit concluded that the district court abused its discretion in approving the planned cy pres distributions of $5.5M worth of food, which had no specified recipient.

– The court also held that the settlement failed because the $2M award of attorneys’ fees was excessive. The settlement would have provided $2.75M to a class of consumers.

– Harry Dennis et al. v. Kellogg Co., 11-55674 (9th Cir.)

39

Match marketing to R&D

Take away points…

– Factual support to claims

Conform labeling to FDA regulations and policy– Avoids claims based on misbranding theories, but your

compliance program should look further

Variance in advertising increases difficulty for plaintiffs to:– Plead with particularity– Satisfy commonality and typicality requirements necessary to– Satisfy commonality and typicality requirements necessary to

certify a class

Litigate Strategically– Cost/benefits of settlement– Timing of defense motions

40

Presenter Contact Information

Angel A. [email protected]

415.471.3285

Trenton H. [email protected]

415.471.3303

Rhonda Stewart Goldstein Jonathan L Koenig

41

Rhonda Stewart [email protected]

415.471.3288

Jonathan L. [email protected]

415.471.3290

Tab 3: Presenter Biographies

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Angel A. Garganta Partner

Angel A. Garganta represents businesses, including manufacturers, service companies, and financial institutions, in a broad range of unfair business practice/consumer class actions and complex commercial disputes. He is a

recognized authority on consumer protection and advertising laws and uses his experience to achieve cost-effective, efficient results for his clients through the early and strategic use of motions to dispose of cases or to position them for favorable settlements.

Mr. Garganta clerked for the Honorable Marilyn Hall Patel, United States District Judge for the Northern District of California. He has served as President of the San Francisco Bank Attorneys Association, on the Board of Directors of the Bar Association of San Francisco, on the Executive Committee of its Litigation Section, and on the Editorial Advisory Board of California Forms of Pleading and Practice (Matthew Bender, ed.). Mr. Garganta has repeatedly been recognized as a Northern California "Super Lawyer" by his peers and Law & Politics and San Francisco magazines. He was Associate Editor of the California Law Review at University of California Berkeley School of Law (Boalt Hall) and is fluent in Spanish and French.

Representative Matters

Defending a national food manufacturer and a national grocery chain in multiple false advertising and consumer class actions regarding the trans fat content of various food products.

Obtaining dismissal with prejudice of all claims against an inventory services company in a consumer class action alleging fraud and conspiracy in connection with an alleged recall of certain pharmaceutical products.

Obtaining summary judgment and dismissal for a national restaurant chain in multiple consumer class actions nationally alleging false advertising about the nutritional content of its menu items

Contact Information [email protected] tel: +1 415.471.3285 fax: +1 415.471.3400

7th Floor Three Embarcadero Center San Francisco, CA 94111-4024

Practice Areas Consumer Protection and Advertising Class Actions Litigation Financial Services

Education JD, Order of the Coif, University of California, Berkeley School of Law (Boalt Hall), 1992 MA, Andrew W. Mellon Fellow, University of California, Berkeley, 1987 BA, magna cum laude, Princeton University, 1984

Admissions California US District Court for the District of Arizona US District Court for the Central District of California US District Court for the Northern District of California US District Court for the Southern District of California US Court of Appeals for the Sixth Circuit US Court of Appeals for the Ninth Circuit

Angel A. GargantaArnold & Porter LLP 2

Defending a yogurt manufacturer in multiple consumer class actions nationally alleging false advertising about the health benefits of its probiotic products

Defending a manufacturer of Bluetooth headsets in federal multidistrict false advertising and unfair business practices class actions alleging failure to warn consumers of hearing loss risk

Defending a national retailer of nutritional supplements in multiple consumer fraud and unfair business practices class actions concerning product quality

Defending a printer manufacturer in a private attorney general action alleging misleading print speed ratings

Defending a prescription drug manufacturer in a products liability class action alleging misleading labeling

Defending a national motor vehicle finance company in a nationwide class action alleging false advertising and unfair business practices regarding its extended service plans

Representing a major French food and beverage producer as plaintiff in a multijurisdictional international commercial litigation against its Chinese joint venture partners

Rankings

Northern California Super Lawyers 2004-Present for Business Litigation, Civil Litigation Defense, Consumer Law, and Banking

Professional and Community Activities

Bar Association of San Francisco

Judiciary Committee

Board of Directors

Executive Committee, Litigation Section

Board of Directors, Barristers Club

Editorial Advisory Board Member, California Forms of Pleading and Practice (Matthew Bender)

Board of Directors, Northern District of California Practice Program

President, San Francisco Bank Attorneys Association

Consumer Financial Services Committee, State Bar of California

Blogs

Jonathan L. Koenig, Joseph W. Cormier PhD, Trenton H. Norris and Angel A. Garganta "GE Foods: To Label or Not to Label - That is the Question (Again)" Consumer Advertising Law Blog, April 26, 2012


Jeremy M. McLaughlin and Angel A. Garganta "Google Privacy Policy Change Spawns Swath of New Lawsuits" Consumer Advertising Law Blog, April 11, 2012

Nancy L. Perkins, Angel A. Garganta and Jeremy M. McLaughlin "A New Dawn: California's "Shine the Light" Law Suddenly Illuminating California Courts" Consumer Advertising Law Blog, March 14, 2012

Angel A. Garganta and Jonathan L. Koenig "Differences in State Consumer Protection Laws Making Nationwide Class Certification Less Likely" Consumer Advertising Law Blog, March 7, 2012

James F. Speyer, Angel A. Garganta and McCormick Conforti "The Hazards of Dukes for Potential Classes in False Advertising Cases" Consumer Advertising Law Blog, June 28, 2011

Articles

Angel A. Garganta "Defending Class Actions in the "Wild West": The Changing Landscape of California's Consumer Protection Laws" The Antitrust Source. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. June 2011

Angel A. Garganta "Recent Developments in California Consumer Protection Law & Practice" Co-author, Business Law News, State Bar of California, 2007

Angel A. Garganta "The 'Non-Class' Class Action is Dead: California Courts Implement Proposition 64 Reforms, Restrict Consumer Suits" Co-author, Prop. 65 Clearinghouse, Vol. 4, No. 37, October 2006

Angel A. Garganta "Made in USA' Interpreted Strictly in California" Co-author, Australian Product Liability Reporter, Vol. 15, No. 8, September 2004

Presentations

Angel A. Garganta "Qualified Settlement Funds" Panelist, Bridgeport Continuing Education, March 15, 2012

Angel A. Garganta "From Health-Focused Marketing to Unappetizing Litigation: The Latest Trends in Food Labeling and Advertising Class Actions" Speaker, GMA 2012 Food Claims & Litigation Conference: Navigating Change in Food Related Litigation, Dana Point, CA, February 21-23, 2012

Angel A. Garganta "Pre-Certification Dispositive Motions, Pleadings Challenges, 12 (b)(1) Motions, Economic Injury v. Manifestations" Chair and Panelist, 11th Annual Class Action Litigation Conference, San Francisco, CA, August 11-12, 2011

Angel A. Garganta "Deterring and Defending Against the Growing Nightmare of Consumer Class Action Litigation" Speaker, American Conference Institute’s 2nd Annual Forum on Litigating and Resolving Advertising Disputes, New York, NY, June 22, 2011

Angel A. Garganta "Update - The Class Action Fairness Act ("CAFA")" Panelist, Northern District of California Practice Program, April 27, 2011


Angel A. Garganta "California's Unfair Competition Law and the "No-Injury Class Action" Speaker, The American Bar Association, 59th Antitrust Law Section Spring Meeting, Washington, DC, April 1, 2011

Angel A. Garganta "Updates in Food Marketing Litigation" Panelist, The American Bar Association, Section of Antitrust Law, Private Advertising Litigation Committee, February 2011

Angel A. Garganta "Legal Developments In The Obama Era: Consumer Protection and Consumer Class Actions" Minority Attorney Summit, May 7, 2010

Angel A. Garganta "Navigating Ethical Grey Areas in Class Action Litigation" Positioning the Class Action Defense for Early Success: ACI 2nd Annual Defense Counsel Summit, October 2008

Angel A. Garganta "New Issues in Food Liability: Menu Labeling Legislation and Litigation" The Legal Council 2008 Fall Seminar, October 2008

Angel A. Garganta and Sharon D. Mayo "Update on Recent Developments Under California's Consumer Protection Laws, with Emphasis on Consumer Litigation Against Financial Institutions" San Francisco Bank Attorneys Association, August 2008

Angel A. Garganta "Update on Consumer Litigation Against Financial Institutions" State Bar of California, Consumer Financial Services Committee, November 2006

Angel A. Garganta "Update on Consumer Litigation Against Financial Institutions" San Francisco Bank Attorneys Association, May 2006

Angel A. Garganta "Panelist, Hot Topics in Financial Institutions Litigation" State Bar of California’s 78th Annual Meeting, September 2005

Angel A. Garganta "Co-Presenter, Update on Consumer Litigation" San Francisco Bank Attorneys Association, July 2005

Angel A. Garganta "Class Action Litigation in California: Requirements for Class Certification" Bridgeport Continuing Education Program, May 2005

Angel A. Garganta "Panelist, Person Most Knowledgeable Depositions (Rule 30 (b)(6); CCP 2025(d)): Are There Really Any Rules?" The Bar Association of San Francisco, November 2004

Angel A. Garganta "Speaker, The SB1 Privacy Litigation: Where is it Going and Where Do We Go From Here?" MCLE Program sponsored by the State Bar of California, the California Bankers Association and the San Francisco Bank Attorneys Association, October 2004

Angel A. Garganta "Panelist, Hot Topics in Financial Institutions Litigation," State Bar of California’s 77th Annual Meeting, October 2004

Angel A. Garganta "Panelist, Innovative Strategies for Pursuing Unfair Competition Claims" State Bar of California, May 2004


Angel A. Garganta "Speaker, Defending Unfair Competition Law Claims: Business and Professions Code §17200 et seq." San Francisco Bank Attorneys Association, October 2003

Angel A. Garganta "Panelist, Class Actions in California State Court: Issues and Developments From Plaintiff and Defense Perspectives" The Bar Association of San Francisco, November 2002

Angel A. Garganta "Panelist, Business and Professions Code Section 17200" California Minority Counsel Program, November 2002

Angel A. Garganta "Panelist, New Developments in California's Unfair Competition Law: What the Practitioner Needs to Know About Section 17200" The Bar Association of San Francisco, May. 2002

Angel A. Garganta "Speaker/Panelist, Overview of Changes to FRCP rules 5, 26, 30 and 37" Northern District of California Judicial Conference, April 2001

Angel A. Garganta "Moderator, The New Federal Rules of Civil Procedure: Changes in the Discovery Rules Effective December 1, 2000" The Bar Association of San Francisco, January 2001

Angel A. Garganta "Speaker, Overview of Recent Developments in Case Law Under California's Section 17200" Bay Area Association of General Counsel, August 2000

Advisories

"High Court Approves Ban on Classwide Arbitration" May. 2011

"California Supreme Court Lowers Bar For UCL Standing, Raised Bar For Money Damages" Feb. 2011

"Ninth Circuit: No Standing to Bring California Unfair Competition Law Claims Based on Hypothetical Injuries" Jan. 2010

"CA DAs Enforce Gift Card Law Against Major Retailer, Highlighting Increasing Government Enforcement Trend" Aug. 2009

"CA Supreme Court Relaxes Standing and Liability Requirements Under CA's Unfair Competition Law" May. 2009

"Reliance Is Not Enough: California Consumers Must Lose Money or Property to Sue" Mar. 2009

"CA Supreme Court Rules Consumers Need Actual Injury for CLRA Claim" Feb. 2009

Multimedia

Angel A. Garganta, James F. Speyer and Kelly A. Welchans. "Wal-Mart v. Dukes: One Year Later" June 21, 2012.

Lisa S. Blatt, Angel A. Garganta, Robert J. Katerberg, Christopher S. Rhee and James F. Speyer. "WEBCAST: Guidance for Consumer Products & Services Companies: A Review


of the Supreme Court's 2011 First Amendment and Class Action Decisions" September 20, 2011. (also available as a Podcast)

Angel A. Garganta, Trenton H. Norris, Eric Shapland and James F. Speyer. "WEBCAST: Avoiding the Pitfalls of Selling to California Consumers" November 19, 2010. (also available as a Podcast)

arnoldporter.com

Trenton H. Norris Partner

Trent Norris heads the firm's San Francisco and Silicon Valley offices. He litigates complex scientific and technical disputes in the areas of consumer protection, product liability, environmental, and intellectual property law.

Mr. Norris' clients are primarily manufacturers, distributors, and retailers of everyday products. His cases have involved diverse products, technologies, and industries, including hearing aids, dietary supplements, cosmetics, restaurant meals, grilled meat, water meters, dandruff shampoo, power tools, medical devices, soft drinks, crystal glassware, snack foods, vaccines, home electronics, paints, plumbing valves, motor vehicles, pharmaceuticals, and batteries, to name a few. He works actively with trade associations and joint defense groups in many of these industries.

A significant portion of Mr. Norris' practice is devoted to advising and defending companies in regards to California's unique toxics and labeling law, Proposition 65, and California's expansive consumer protection laws. He has been a leader in the effort to reform the standing requirements of these laws. Mr. Norris recently served as a panelist for California Lawyer's 2011 Environmental Law Roundtable discussing California's emerging environmental statutes, which included Proposition 65. Mr. Norris's intellectual property practice involves patent, copyright, trade secret and trademark litigation as well as counseling in relation to resolution and avoidance of disputes.

Mr. Norris served as the top legislative aide to US Senator Wyche Fowler, Jr. (D-GA) on appropriations, environmental, public lands and transportation issues (1987-1989). He was Editor of the Harvard Law Review (1990-1992).


Consumer Law

Represented major food manufacturer in regulatory proceedings and litigation brought by California attorney



Practice Areas Litigation Consumer Protection and Advertising Environmental FDA and Healthcare Product Liability Litigation Legislative and Public Policy

Education JD, magna cum laude, Harvard Law School, 1992 BA, magna cum laude, Brown University, 1986

Admissions California District of Columbia Supreme Court of the United States US Court of Appeals for the Ninth Circuit US District Court for the Central District of California US District Court for the Eastern District of California US District Court for the Northern District of California US District Court for the Southern District of California US District Court for the Northern District of Illinois US District Court for the Eastern District of Texas

Trenton H. NorrisArnold & Porter LLP 2

general and citizens groups to require Proposition 65 warnings on snack foods

Represents 17 manufacturers and retailers of multivitamins in Proposition 65 litigation by the California Attorney General and multiple District Attorneys

Represents major restaurant system in two nationwide and four state class actions alleging inaccuracies in nutritional information provided on menus

Represents major manufacturer of yogurt products in purported nationwide class action alleging false advertising regarding the benefits of the products

Represented nine manufacturers and retailers of red yeast rice dietary supplements regarding allegations that the products require warnings under Proposition 65 and related laws

Represents six national restaurant systems against claims by animal rights advocacy group that Proposition 65 warnings are required on grilled chicken products

Represented major manufacturer of Bluetooth wireless headsets in defending multidistrict litigation alleging that warnings are required for noise-induced hearing loss

Advises numerous dietary supplement manufacturers and retailers concerning allegations of non-compliance with California consumer laws and Proposition 65

Represented global beverage company regarding allegations that soft drink bottles illegally imported and sold in California by others require a warning under Proposition 65

Represented 21 manufacturers and retailers of progesterone creams regarding allegations that they require warnings under California consumer laws and Proposition 65, resulting in published decision affirming the reform of California's consumer protection laws

Represented several manufacturers and retailers of ginseng supplements in defending claims that ingredient lists were inaccurate as a result of change in federal law

Represented manufacturers and retailers of kava supplements in defending class action claiming that the products require warnings

Represented manufacturer of vaccines in litigation alleging that preservatives used in childhood vaccines result in autism, resulting in published decision upholding treatment of prescription medications under Proposition 65

Intellectual Property

Represented a major telephone accessory manufacturer in patent infringement litigation and related proceedings before the International Trade Commission concerning wireless telephone technology

Represented a security software manufacturer in trademark cancellation proceedings before the US Patent and Trademark Office and in related trademark infringement litigation

Represents a major cellular telephone accessory manufacturer in anticounterfeiting efforts and related litigation


Oversees the patent and trademark portfolio and provides strategic IP advice to a global telecommunications equipment manufacturer and a global hearing aid manufacturer

Represented a major wood products company in establishing precedent providing additional protection to commercial trade secrets submitted to government agencies

Represented a major cellular telephone accessory manufacturer in breach of contract and design patent infringement litigation

Represented a pharmaceutical company as plaintiff in trademark infringement action

Represented a dietary supplemental company as plaintiff in two trademark infringement actions

Product Liability

Represented PhRMA, the Pharmaceutical Trade Association, in providing testimony to California legislature on direct-to-consumer (DTC) advertising legislation

Represent three pharmaceutical companies in personal injury case alleging inadequate packaging and failure to warn

Represented a vaccine manufacturer in litigation alleging that preservatives used in childhood vaccines result in autism, resulting in published decision upholding treatment of prescription medications under Proposition 65

Represented a pharmaceutical company in purported class action alleging that labeling of products resulted in the administration of the wrong medicine to class of patients

Represented a medical device manufacturer in asbestos litigation

Represented a pharmaceutical company in defending a wrongful death case involving a labor-inducing drug

Environmental

Advises manufacturers and retailers concerning compliance with regulations of the California Air Resources Board, the California Energy Commission, and the California Department of Pesticide Regulation

Represents consumer product manufacturers and retailers in enforcement proceedings before the California Air Resources Board

Advises consumer product trade associations in compliance and regulatory proceedings concerning Proposition 65

Represented manufacturers of plumbing valves in a successful trial of claims that Proposition 65 prohibits the sale of their products in California (ruling affirmed on appeal)

Represented a paint manufacturer in a multiparty site cleanup and related cost-recovery litigation


Awards

Barrister of the Year, Bar Association of San Francisco 1998

Rankings

Chambers USA: America's Leading Lawyers for Business 2012 for Environment (California)

The Best Lawyers in America 2012 for Environmental Law

Northern California Super Lawyers 2004-2012; Top 100 (2011)

Chambers USA: America's Leading Lawyers for Business 2005-2011 for Environment

Named to Daily Journal's "Top 100: California's Leading Attorneys of 2010"

Who's Who Legal: California 2009 for Environment

Selected as one of California's "20 Under 40" Lawyers, Daily Journal Extra, 2004

Professional and Community Activities

Fellow, American Bar Foundation

Lawyer Representative, U.S. District Court, Northern District of California

Editorial Board, Association of Business Trial Lawyers (Northern California) Report

Board of Directors, The Peter M. Cicchino Social Justice Foundation

Chair, Advisory Board, Prop 65 Clearinghouse (2006); Member (2004-present)

Alumni Advisory Board, Harvard Environmental Law Society

Bar Association of San Francisco

Bay Area Lawyers for Individual Freedom (BALIF)

Chair, Editorial Advisory Board, Prop 65 News (2001-2004)

Chair, Barristers Club of San Francisco's committees on intellectual property, community education and volunteer legal services (past)

Magistrate Judge Merit Selection Committee (N.D. Cal. 2011)

Blogs



Dawn Y. Yamane Hewett and Trenton H. Norris "Doing Business in California? You May Need to Start Disclosing Your Efforts To Eliminate Slavery from Your Supply Chain" Consumer Advertising Law Blog, January 13, 2012

James F. Speyer and Trenton H. Norris "Culling the Herd of Abusive Class Action Litigation" Consumer Advertising Law Blog, June 1, 2010

James F. Speyer and Trenton H. Norris "Biggest Circuit Adopts Strict Class Cert Standard but Certifies Wal-Mart-Sized Class" Consumer Advertising Law Blog, April 29, 2010

Books

Trenton H. Norris "A Client-Centered Approach to Food and Drug Law" Food, Beverage, and Drug Law Client Strategies: Leading Lawyers on Marketplace Considerations, Regulatory Compliance, and Dispute Resolution (Boston: Aspatore Books, 2007)

Articles

Trenton H. Norris "On Environmental Law" Association of Business Trail Lawyers Report, Northern California, Volume 21, No. 2, Spring/Summer 2012

Trenton H. Norris "On Environmental Law (Green Marketing)" Association of Business Trial Lawyers' Northern California Report, Vol. 19 Spring 2010

Trenton H. Norris and James F. Speyer "Curtailing Class Action Abuse: How Three Developments Converged To Reduce The Pressure To Settle" Washington Legal Foundation May. 2010

Trenton H. Norris "Prop. 64 Five Years Later: Has the 'Shakedown Loophole' Been Closed?" Association of Business Trial Lawyers' Northern California Report, Vol. 1 Fall 2009

Trenton H. Norris and James F. Speyer "California High Court Offers Mixed Results On Proposition 64" Legal Opinion Letter Aug. 2009

Trenton H. Norris "On Environmental Law (Burden Shifting)" Association of Business Trial Lawyers' Northern California Report, Vol. 18 (Spring 2009)

Trenton H. Norris "Positive Preparation" Daily Journal (October 2008)

Trenton H. Norris "On Environmental Law (Nanotechnology)" Association of Business Trial Lawyers' Northern California Report, Vol. 17 (Spring 2008)

Trenton H. Norris "On Environmental Law (Climate Change)" Association of Business Trial Lawyers' Northern California Report, Vol. 16 (Spring 2007)

Trenton H. Norris "AHPA Members Fight California "Shakedown" Lawsuit: Potential Industry-wide Benefits" AHPA Report October 2006

Trenton H. Norris "On Environmental Law (Toxics Regulation)" Association of Business Trial Lawyers' Northern California Report, Vol. 15 (Spring 2006)

Trenton H. Norris "Consumer Litigation and FDA-Regulated Products: The Unique State of California" Food & Drug Law Journal, Vol. 61 (2006)


Trenton H. Norris "On Environmental Law (Proposition 64)" Association of Business Trial Lawyers' Northern California Report, Vol. 14 (Spring 2005)

Trenton H. Norris "California Safe Drinking Water and Toxic Enforcement Act of 1986" Environmental Law Practice Guide, Vol. 6 (2004)

Trenton H. Norris "On Environmental Law (Environmental Consultants)" Association of Business Trial Lawyers' Northern California Report, Vol. 13 (Spring 2004)

Trenton H. Norris "WARNING: Eating Causes Cancer and Birth Defects (in California)" Food & Drug Law Institute Update 44 (July/August 2003)

Trenton H. Norris "On Environmental Law (anti-SLAPP motions)" Association of Business Trial Lawyers' Northern California Report, Vol. 12 (Spring 2003)

Trenton H. Norris "On Environmental Law (Proposition 65)" Association of Business Trial Lawyers' Northern California Report, Vol. 11 (Spring 2002)

Trenton H. Norris "The Emerging Jurisprudence of Domain Name Dispute Resolution" Co-author, California State Bar Intellectual Property Section: New Matter, Vol. 26 (Spring/Summer 2001)

Trenton H. Norris "The Teacher: A Tribute to Prof. Peter M. Cicchino" American University Law Review, Vol. 50 (2001)

Trenton H. Norris "Spotting the Intellectual Property Issue: A Primer for Environmental Lawyers" California Environmental Law & Regulation Reporter, Vol. 7 (Winter 1997, reprinted)

Trenton H. Norris "Protecting Company Secrets in the Community Right-to-Know Era" The Practical Lawyer, Vol. 43 (December 1997, reprinted)

Trenton H. Norris "Recruiting Gay, Lesbian, and Bisexual Law Students: Beyond Non-Discrimination" National Association for Law Placement Bulletin (August 1996)

Trenton H. Norris "The Judicial Clerkship Selection Process: A Student's Perspective on Bad Apples, Sour Grapes, and Fruitful Reform" California Law Review, Vol. 81 (1993)

Trenton H. Norris "Developments in the Law--International Environmental Law: Institutional Arrangements" Harvard Law Review, Vol. 104 (1991)

Presentations

Trenton H. Norris "Law Firm Economics 101" Berkeley School of Law, March 13, 2012

Trenton H. Norris "From Health-Focused Marketing to Unappetizing Litigation: The Latest Trends in Food Labeling and Advertising Class Actions" Panelist, Grocery Manufacturers Association Food Claims and Litigation Conference, Laguna Niguel, CA, February 22, 2012

Trenton H. Norris "Negotiating Settlements: From Attorney Fees To Payments in Lieu of Penalties" Panel moderator, Prop. 65 Clearinghouse Annual Conference, San Francisco, CA, November 29, 2011

Trenton H. Norris "Science vs. Policy: The Case of the Century" Keynote Speaker, Personal Care Products Council Legal & Regulatory Conference, San Francisco, CA, May 18, 2011


Trenton H. Norris "Proposed Changes and Other Sources of Low Hanging Fruit" Co-Presenter, Grocery Manufacturers Association Food Claims and Litigation Conference, Scottsdale, AZ, February 24, 2011

Trenton H. Norris "Law Firm Economics 101" Stanford Law School, February 15, 2011

Trenton H. Norris "Law Firm Economics 101" University of California Hasting College of Law, November 17, 2010

Trenton H. Norris "Living with Proposition 65: Options for Providing Warnings" American Herbal Products Association webinar, October 18, 2010

Trenton H. Norris "Yes They Can! State Regulation of Consumer Products" Personal Care Products Council Legal & Regulatory Conference, Naples, Florida, May 13, 2010

Trenton H. Norris "California Proposition 65" Footwear Distributors & Retailers Association, April 22, 2010

Trenton H. Norris "Law Firm Economics 101" Stanford Law School, April 13, 2010

Trenton H. Norris "Law Firm Economics 101" Harvard Law School, March 10, 2010

Trenton H. Norris "Law Firm Economics 101" University of California Hasting College of Law, February 9, 2010

Trenton H. Norris "Partnership: The Real Scoop" Panelist, Bay Area Lawyers for Individual Freedom, San Francisco, California, January 27, 2010

Trenton H. Norris "Spotlight on Environmental Law" Stanford Law School, November 5, 2009

Trenton H. Norris "Looking Ahead: UCL Developments on the Horizon" Panelist, Golden State Institute, California State Bar, Antitrust and Unfair Competition Section. San Francisco, California, October 22, 2009

Trenton H. Norris "Prop 64: Are the Standards Changing?" Co-presenter, The Recorder Roundtable, San Francisco, California, July 22, 2009

Trenton H. Norris "Playing Well With Others: Cooperation in Collective Litigation" Personal Care Products Council Legal & Regulatory Conference, Vancouver, BC, Canada, June 17, 2009

Trenton H. Norris "Prop 65 and Food: What's Cooking in California" Grocery Manufacturers Association Food Claims and Litigation Conference, Palm Springs, California, February 26, 2009

Trenton H. Norris "Law Firm Economics 101" Stanford Law School, February 12, 2009

Trenton H. Norris "Setting and Meeting Specifications for Contaminants in Finished Products under cGMP (Proposition 65)" American Herbal Products Association, telephonic seminar, January 22, 2009


Trenton H. Norris "Recent Developments in Dietary Supplement Regulation, Enforcement & Litigation" ABA Antitrust Section Health Care & Consumer Protection Committees, telephonic seminar, January 16, 2009

Trenton H. Norris "Good News/Bad News: Product Liability Litigation Down/Consumer Litigation Up" Personal Care Products Council Legal & Regulatory Conference, Chicago, IL, May 9, 2008

Trenton H. Norris "Prop 65" Promotional Products Conference, Las Vegas, Nevada, January 5, 2007

Trenton H. Norris "Perspectives on Prop 65: A Self-Help Guide (Opening Address)" Prop 65 Clearinghouse Annual Conference, San Francisco, California, March 27, 2006

Trenton H. Norris "WARNING: California Contains Regulations Known to Cause Lawsuits" American Herbal Products Association annual meeting, Anaheim, California, March 23, 2006

Trenton H. Norris "Advanced Legal Issues" Panelist, Association of Defense Communities winter conference, San Diego, California, March 6, 2006

Trenton H. Norris "Business & Professions Code Section 17200: Has Proposition 64 Changed Everything?" Faculty member of full-day seminar, Oakland, California, July 20, 2005

Trenton H. Norris "Legal Issues Forum" Panelist, Association of Defense Communities annual conference, Denver, Colorado, June 7, 2005

Trenton H. Norris "California's Proposition 65: A (so far) Unique Approach to Regulating Chemical Risks" American Chemical Society annual meeting, San Diego, California, March 16, 2005

Trenton H. Norris "How Proposition 65 Science Addresses Toxics in Food" Moderator, Prop 65 Clearinghouse Annual Conference, San Francisco, California, March 11, 2005

Trenton H. Norris "The End of Section 17200: Shortening Prop. 65's Shelf Life" Panelist, Prop 65 Clearinghouse Annual Conference, San Francisco, California, March 11, 2005

Trenton H. Norris "Welcome to California: No Injury Required" Food & Drug Law Institute conference on Product Liability for FDA-Regulated Products, Washington, DC, January 27, 2005

Trenton H. Norris "Bio-Monitoring: What to Do About the Chemicals in Our Bodies?" Panelist, California State Bar Environmental Law Conference, Yosemite, California, October 24, 2004

Advisories

"Compliance Deadline is Fast Approaching for California Supply Chain Disclosure Law" Nov. 2011

"California Adopts Strict Public Health Goal for Chrome 6" Jul. 2011

"High Court Approves Ban on Classwide Arbitration" May. 2011


"California Supreme Court Lowers Bar For UCL Standing, Raised Bar For Money Damages" Feb. 2011

"New California Law Requires Disclosure Regarding Human Trafficking/Slavery in Supply Chains" Jan. 2011

"FDA Answers Questions on When and How to Comply With New Restaurant Menu Labeling Law" Aug. 2010

"Ninth Circuit: No Standing to Bring California Unfair Competition Law Claims Based on Hypothetical Injuries" Jan. 2010

"State and Local Menu Labeling Laws Present Compliance Challenges" Nov. 2009

"House Passes Nationwide Menu Labeling Legislation" Nov. 2009

"CA DAs Enforce Gift Card Law Against Major Retailer, Highlighting Increasing Government Enforcement Trend" Aug. 2009

"CA to Add Chemicals to Proposition 65 List Using the So-Called "Labor Code Mechanism"" Jun. 2009

"CA Supreme Court Relaxes Standing and Liability Requirements Under CA's Unfair Competition Law" May. 2009

"Court of Appeal Leaves Proposition 65 Questions Unanswered in Narrow Win for Food Industry" Mar. 2009

"Reliance Is Not Enough: California Consumers Must Lose Money or Property to Sue" Mar. 2009

"New Requirements in Effect; Federal and California Limits on Phthalates" Mar. 2009

"California Court Bars Successive Proposition 65 Lawsuits" Feb. 2009

"CA Supreme Court Rules Consumers Need Actual Injury for CLRA Claim" Feb. 2009

"California Issues Final Policy Recommendations of its Green Chemistry" Feb. 2009

"California Enacts Nation's First Statewide Menu Labeling Law" Feb. 2009

"Update 1: California Enacts Sweeping "Green Chemistry" Laws" Oct. 2008

Multimedia

Angel A. Garganta, Trenton H. Norris, Eric Shapland and James F. Speyer. "WEBCAST: Avoiding the Pitfalls of Selling to California Consumers" November 19, 2010. (also available as a Podcast)

Blake A. Biles, Karen J. Nardi, Eric Newman, Trenton H. Norris, Jeff Sickenger and Zachary B. Allen. "WEBCAST: California's Green Chemistry: The Regulations are Coming!" April 28, 2010. (also available as a Podcast)

Trenton H. Norris, Harrison M. Pollak, Eric A. Rubel and Robert D. Scofield. "WEBCAST: Consumer Products: Avoiding the Crossfire Between State and Federal Regulation" March 16, 2010. (also available as a Podcast)

arnoldporter.com

Rhonda Stewart Goldstein Associate

Rhonda Stewart Goldstein is an associate in the litigation practice group. In her practice, she has represented a diverse group of clients from numerous trades and industries, with a particular focus on servicing clients in the pharmaceutical,

dietary supplement, and bio-tech industries. She has experience managing, litigating, and settling complex cases involving consumer product litigation, product liability litigation, and general civil litigation, with extensive experience handling issues involving constitutional law, federal preemption, and California's Proposition 65 and unfair competition statutes.

In addition, Ms. Goldstein is an adept legal writer and has authored briefs submitted to federal trial and appellate courts, as well as to the United States Supreme Court. She maintains an active appellate practice covering a variety of civil and criminal matters.

Ms. Goldstein graduated from Harvard Law School in 2004, where she taught legal writing and research to first-year law students, and served as a Primary Editor of the Women's Law Journal. She graduated magna cum laude with a triple-major from the University of Notre Dame in 2001.


Representing numerous dietary supplement businesses in Proposition 65 and unfair competition litigation brought by the California Attorney General and multiple District Attorneys.

Taking depositions and preparing cases for trial in nationwide product liability litigation involving diet drugs.

Representing a trade association in litigation involving constitutional law and preemption challenges to a state statute regulating pharmaceutical marketing and advertising.



Practice Areas Litigation Product Liability Litigation Consumer Protection and Advertising California Proposition 65 Consumer Protection and Advertising Environmental

Education JD, Harvard Law School, 2004 BA, magna cum laude, University of Notre Dame, 2001

Admissions California US District Courts for the Central, Eastern, Northern, and Southern Districts of California US Court of Appeals for the Fourth Circuit District of Columbia (inactive) Indiana (inactive)

Rhonda Stewart GoldsteinArnold & Porter LLP 2

Advising numerous pharmaceutical companies regarding legal developments concerning preemption of state law tort claims under the Federal Food, Drug, and Cosmetic Act.

Representing a major pharmaceutical company in a Congressional investigation related to drug safety.

Advising a major company on the litigation ramifications of potential regulation by the United States Food and Drug Administration.

Evaluating the patient assistance program of a major bio-tech company for compliance with federal laws relating to healthcare fraud and abuse, including the Anti-Kickback Act.

arnoldporter.com

Jonathan L. Koenig Associate

Jonathan Koenig is an associate in Arnold & Porter's San Francisco office. As a member of the Litigation practice group, his practice focuses on consumer class actions and other complex commercial litigation. Mr. Koenig also maintains an active pro bono practice.

Mr. Koenig graduated from Harvard Law School with honors in 2011, where he served as an editor of the Harvard Civil Rights--Civil Liberties Law Review. During the Arab Spring, Mr. Koenig participated in Harvard Law School working groups for constitutional reform in Bahrain and Egypt. While a law student, he also worked as an intern for the Honorable Joseph F. Bataillon of the United States District Court for the District of Nebraska.

Prior to law school, Mr. Koenig served in the United States Army.

Blogs


Angel A. Garganta and Jonathan L. Koenig "Differences in State Consumer Protection Laws Making Nationwide Class Certification Less Likely" Consumer Advertising Law Blog, March 7, 2012

Articles

Karen J. Nardi, Jonathan L. Koenig and Shailesh R. Sahay "OSHA Furthers U.S. Adoption of Globally Harmonized System of Chemicals Classification Through Recent Rulemaking" ABA's Pesticides, Chemical Regulation, and Right-to-Know Committee Newsletter July 2012

Advisories

"OSHA Updates Chemical Workplace Safety Regulations to Conform with International Standards" May. 2012



Practice Areas Litigation

Education JD, with honors, Harvard Law School, 2011 BS, with honors, University of Nebraska, 2006

Admissions California

Tab 4: Practice Overview

arnoldporter.com

Tab 5: Selected Food Products Litigation Experience and Credentials

arnoldporter.com

Selected Food Products LitigationExperience and Credentials

Updated March 2012

1

Food Products Litigation Experience

People of the State of California v. Frito-Lay, Inc., et al.; People of the State of California v Snyder’s of Hanover et alCalifornia v. Snyder s of Hanover, et al.

We represented Frito-Lay, Inc. in litigation brought by the California Attorney General andseveral environmental groups alleging failure to warn of and false advertising regarding thepresence of the chemical acrylamide in potato chips and other snack foods. The chemical isformed naturally when some foods are cooked but is on the California Proposition 65 list as acarcinogen. The potato chip case was resolved on the eve of trial with Frito-Lay agreeing tomeet standards it developed during the course of the litigation. The other cases have alsobeen resolved on similarly favorable terms.

People v. 21st Century Healthcare, Inc., et al. We have represented 17 manufacturers and retailers of multivitamins in litigationbrought by the California Attorney General alleging failure to warn of the presence oflead under Proposition 65 and the California Unfair Competition Law Arnold & Porter islead under Proposition 65 and the California Unfair Competition Law. Arnold & Porter isone of three firms that was chosen as liaison counsel for a group of approximately 45defendants represented by over 20 law firms. The case is pending in the AlamedaSuperior Court, complex division, and will address the requirements for warnings of lowlevels of unavoidable contaminants.

2


We defended The Dannon Company, the U.S. subsidiary of global food manufacturer Groupe Danone, in multiple class actions allegingfood manufacturer Groupe Danone, in multiple class actions alleging that the claims made for its Activia and DanActive fermented dairy products were false and misleading, including claims related to digestive comfort and immune system health. Class actions were filed in federal courts in California, Ohio, New Jersey, Connecticut, Florida and Arkansas.

3


Brandon v. Safeway, Inc.We represent Safeway in a class action lawsuit alleging that certain of its products are not “All Natural,” because they contain synthetic ingredients. The complaint alleges violations of California consumer protection laws. The case is pending in the Northern District of California.

4

Food Products Litigation Experience Dietary supplements

We represent more than a dozen manufacturers and retailers of dietarysupplements in several lawsuits and pre-litigation investigations by private

California Restaurant AssociationWe represented the CaliforniaRestaurant Association (CRA) in challengesto menu labeling ordinances enacted in

pp p g g y penforcers of Proposition 65 alleging failure to warn consumers for heavy metalsand PCB’s, as well as in investigations by a dozen California district attorneysand city attorneys and the California Attorney General of similar allegations and

allegations of false advertising for such products as joint healthsupplements, mood supplements, fish oil, prostate health supplements,and weight loss/appetite suppression supplements.

to menu labeling ordinances enacted in San Francisco and Santa Clara County. The CRA alleged causes of action based on federal and state preemption and free speech guarantees. Partly in response to these suits, California enacted legislation supported by both the advocates and the CRA that preempted the San Francisco and Santa Clara ordinances.

National Council of Chain RestaurantsWe also represent the National Council of Chain Restaurantsconcerning U.S. FDA’s proposed regulations implementingnationwide menu labeling requirements.

5

We represented The Quaker Oats Co. and The Kroger Co. in two of the first consumer actionsinvolving labeling of trans fats on packaged foods Key issues include federal preemption

Food Products Litigation Experience Trans Fat Litigation

involving labeling of trans fats on packaged foods. Key issues include federal preemption.The case against Kroger was dismissed by the Central District of California; the cases involving Quaker were narrowed and are pending in the Northern District of California and Northern District of Illinois.

Applebee’s Menu Litigation

We represent Applebee’s International, its parent company, and its licensor in six consumer class actions filed around the country challenging the accuracy of the nutritional information on the Weight Watcher’s portion of the Applebee’s menu.

6

Courts in California, Kansas, and, Ohio granted our motions and held that the federal Nutrition Labeling and Education Act (NLEA) onlyrequires restaurants to have a

“reasonable basis” for the fat and calorie information on the menu, rather than meeting precise requirements

based on analytical testing, a critical ruling for all restaurant companies. An appeal of the California ruling is pending in state court; all other cases have been resolved in our clients’ favor.

We represent six of the nation’s largest restaurant companies against an animal rights


Physicians Committee for Responsible Medicine v. McDonald’s, et al.

We represent six of the nation s largest restaurant companies against an animal rightsgroup alleging failure to warn of the presence of the chemical PhIP in grilled chicken

products. PhIP is created when any muscle meat is grilled - whether at home or in a restaurant – but it is on the California Proposition 65 list as a carcinogen. The Los Angeles Superior Court ruled the case was preempted by conflict with federal

law. The Court of Appeal disagreed but ruled that generic warnings posted in most restaurants satisfy the law. The case is now pending in Los Angeles Superior Court.

We represent McDonald’s and Friendly’s against two

Delio, et al. v. McDonald’s Corporation, et al.

consumers sponsored by an animal rights group alleging failure to warn of the presence of the chemical PhIP in grilled chicken products. This is a similar suit to the case brought by Physicians Committee for Responsible Medicinein California, but it alleges claims under the Connecticut Unfair Trade Practices Act. Many states have similar laws, and so this appears to be a test of the plaintiffs’ legal theory. The case is pending in Connecticut state court.

7


Johnson v. PatentHEALTHf f fWe represented the manufacturer of two dietary supplements, one advertised for appetite

suppression and the other for joint flexibility, in a consumer class action filed in federal court in Los Angeles. In a matter of weeks, we defeated a motion for preliminary injunction and achieved the complete dismissal of the suit, which threatened the company’s sales through key retail accounts in California.

Moline v. Del Monte Foods, et al..

8

We represented a large manufacturer and a large retailer of pet food products in false advertising litigation concerning the claim of “no by-products” in a pet food product. The case settled on favorable terms on a non-class basis.


Council for Education & Research on Toxics v. Starbucks Corp., et al.We represent two specialty retailers of brewed coffee and two of the country’s largest convenience store chains against allegations that consumers are entitled to warnings for acrylamide in brewed coffee. The chemical is formed naturally when some foods arecooked but is on the California Proposition 65 list as a carcinogen. The case is pending in the Los Angeles Superior CourtThe case is pending in the Los Angeles Superior Court.

9

Tab 6: Supporting Materials

arnoldporter.com

Food Class Action Update—July 19th continued

Food Class Action Update—July 5th continued

Food Class Action Update—June 25th continued

Food Class Action Update—June 4th continued

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