Monday, May 1, 2023 Day One

8:45

Co-Chairs’ Opening Remarks

Microphone-alt David Biderman, Partner, Firmwide Chair, Consumer Products & Services Litigation, Perkins Coie LLP

Lori Leskin, Partner, Co-Chair, Consumer Products Practice Group, Arnold & Porter

Kaye Scholer LLP

9:00

Cross-Industry Class Action Roundup: Examining the Latest Class Action Trends in Food, Cosmetics and Dietary Supplements

In our morning roundup, leading in-house counsel from the food, cosmetic, and dietary supplements industries will provide an analysis of the latest class action activity targeting their respective industries. Topics of discussion will include:

• The latest advertising and labeling practices which are triggering class action claims

» Healthy

» Natural

» Health claims vs. structure function

• Key lessons and takeaways from the latest class litigations

• Insights on where the next class action hot spots may occur

» Supplements and illegal drug claims, Li et al v. Amazon (N.D. Cal. 2023)

• Predicting when you may be a class action target

10:15

Exploring How New Legislation and Agency Guidance Will Impact Future Class Action Litigation Involving FDA Consumer Products

• Assessing how the Modernization of Cosmetics Regulation Act of 2022 (MOCRA) will impact class actions against the cosmetics and personal care industries

• Examining how the FTC’s recent revisions to the Health Products Compliance Guidance may trigger new class action activity against the food and dietary supplement industries

• Exploring how the FDA’s new proposed rule on Food Labeling will impact class action activity involving making “healthy” claims on food labels

• Understanding how potential updates to the FTC Green Guides may impact future claims across the food, cosmetic and supplements industry

11:00 Morning Coffee Break

11:30

A Cross-Circuit Analysis of Recent Class Certification Developments in Food, Cosmetics and Supplement Class Actions

• Assessing the latest class certification rulings and trends across key circuits relating to food, cosmetics and supplements

• What plaintiff strategies are winning the day in certifying classes in FDA-regulated consumer product cases?

• Identifying defense challenges to class certification that are seeing the most success in these industries

12:15

To Respond or Not Respond? What to Do After You Receive the Demand Letter

Class actions lawsuits affecting food cosmetics, and supplements usually begin with a demand letter. This session will provide a look at recent demand letter trends affecting these industries and strategies to employ for when one arrives on your desk.

• Examining demand letter trends in these FDA-Consumer industries

» Recent labeling and marketing triggers

» State consumer protection law violations

» Reasonable consumer standard

• Developing internal protocols to address demand letters

• Evaluating the class action probability from the letter

» What can we glean about the potential of the case from the law firm/attorney who sent the letter?

• Understanding when and how to enlist outside counsel

• Weighing the risk of responding vs. not responding while being mindful of the response deadline

• Identifying who else may have received the same demand letter and how this should factor into your decision

• Understanding how to make the “fish or cut bait” decision

» Which actions are worth fighting and which should be settled right away?

» Grasping what types of cases settle, which don’t, and how much should be paid

» Identifying claims that never win, e.g., FDC&A defeat

1:00 Networking Luncheon