Author Archives: Steve Gardner

“Pigs get fed but hogs get slaughtered”

Last month, a district court in the Sixth Circuit issued opinions in two related cases that refused to approve two class action settlements, taking class counsel to task for proposing $5,000 incentive awards to the class representatives, because the class members only received $248 each. Moeller v. The Week Publications, 1:22-cv-10666 (E.D. Mich. Dec. 15, 2022); Strano […]

A Valediction: Long-time Consumer Advocate Richard Cleland Hangs Up His Spurs

After taking his sweet time to do so, my old and good friend Rich Cleland retired from the FTC at the end of 2022. I first met Rich about 40 years ago, when he ran the great Iowa AG Tom Miller’s Consumer Protection Division and I was working for the late great Texas AG Jim […]

Ninth Circuit Takes the Con Out of ConAgra

by Steve Gardner Yesterday, the Ninth Circuit issued an excellent opinion on the issue of preemption of state law claims for deception involving foods regulated by USDA. Cohen v. ConAgra Brands, Inc. Robert Cohen sued ConAgra for violations of California consumer laws. As the Court noted: Cohen began purchasing various frozen chicken products such as […]

Short but Sweet Amicus Brief on E-discovery

It’s not often (or ever) that I would post an amicus brief on e-discovery, but I’m making an exception today. Brian Morrison, a partner at Tadler Law, drafted an excellent trial court amicus on the narrow issue of e-discovery of emails that use hyperlinks (an increasing practice) instead of PDFs that are actually attached. It’s […]

Supreme Court bans debt collection robocalling to cellphones

by Stephen Gardner Today, the Supreme Court held that collecting government debt by robocalling cellphones didn’t deserve special First Amendment treatment. In Barr v. American Assn. of Political Consultants, Inc., the Court held that a 2015 amendment to the Telephone Consumer Protection Act, which allowed cellphone robocalls to collect federal debts (such as student loans […]

Bayer supplement class action headed for jury trial in under a month

By Stephen Gardner The Bayer case (for Bayer's widespread deceptions about One-A-Day vitamins), where I was lead counsel until I left private practice (to set up an expert consulting practice), is set for jury trial February 19. As far as I know, this is one of the few (if not the only) supplement fraud class […]

Illustration of the problem of judges substituting their own opinions of facts

by Stephen Gardner On February 27, the Northern District of California issued an opinion on a motion to dismiss in Becerra v. The Coca-Cola Company. The court got the law right, but then ruled based on incorrect conclusions on disputed facts. There are two parts to the opinion. First, the court analyzed Coke’s various attempts to avoid […]

Ninth Circuit, once again, recognizes reality–to the benefit of consumers

The Ninth Circuit handed down an excellent decision on October 20, resolving an open question as to whether a class action plaintiff can seek future injunctive relief when she won’t get fooled again. This often arises with retail purchases, where a duped consumer who is on the ball enough to be a class representative is […]

Lawsuit against Gerber for deceptive and unlawful claims narrowed a bit by Ninth Circuit

By Stephen Gardner On July 17, a panel of the Ninth Circuit issued a revised opinion in Bruton v. Gerber Products. (I’ve attached the withdrawn opinion here and the new opinion here.) In her lawsuit, Natalia Bruton alleged that “labels on certain Gerber baby food products included claims about nutrient and sugar content that were […]

Texas AG Paxton goes to bat to protect First Amendment rights of a Texas resident

By Steve Gardner Spoiler alert: The resident is ExxonMobil, which is fighting a subpoena (probably a Civil Investigative Demand) by the AG of the Virgin Islands seeking to find out about Exxon's role in climate change. The VI AG is working with an excellent plaintiff firm, Cohen Milstein, to represent the VI. The State of Texas (joined by […]