Contamination Class Actions

2:00

Contaminant Class Actions: What Every Defense Attorney for an FDA-Regulated Consumer Industry Needs to Know About PFAS, Heavy Metals, and Other Trace Chemicals

Contaminants such as PFAS - forever chemicals, heavy metals, and other trace substances are spawning a new breed of highly aggressive class action litigation. They are affecting almost every industry, but are of particular concern to the FDA-regulated consumer goods sector. This panel will examine recent contaminant class actions affecting these industries and provide insights on what to do if your company is hit with one of these lawsuits. This panel will examine:

• Understanding the legal nuances of contaminant litigations - How are these lawsuits different from other class action claims?

• What theories are plaintiffs relying on in these claims, and what defense strategies are proving to withstand the latest plaintiff challenges?

• Examining how product testing/sourcing and recorded regulatory approval can yield additional strategies for class-action defense of PFAS and other related trace chemical lawsuits

2:45

Spotlight on Titanium Dioxide: The Latest Target in FDA-Regulated Consumer Product Class-Action Lawsuits

Despite TiO2’s green light from the FDA, the plaintiffs’ bar has nevertheless begun bringing putative class actions alleging that the presence of Titanium Dioxide makes consumer products unsafe. This panel will examine:

• The rising trend of Titanium Dioxide class actions being brought across the food, cosmetic and supplements industry

• Common themes, allegations and takeaways

• How companies and their counsel should be reviewing product formulations and label claims to mitigate litigation risks associated with the presence of TiO2

3:15 Afternoon Break

3:30

Understanding How Prop 65 Activity is Influencing Class Actions Against FDA-Regulated Consumer Product Companies

• Examining the latest trends in Prop 65 activity that the food, cosmetic and dietary supplements industries should be paying attention to

• Understanding how the Prop 65 acrylamide ruling may have ended class actions against food companies in this category

• Examining the new dark chocolate class actions and their similarity to Prop 65 actions

4:15

How Proper Claims Substantiation and Sound Labeling Practices Can Be Your Best Offense

• Examining claims language, advertising methods and other actions a company can take to reduce the risk of a class action

• Understanding how proper and compliant labeling can defeat a class

» FDC&A compliance

• Being proactive in substantiating marketing and labeling claims with competent and reliable scientific evidence

5:00 Conference Adjourns

MEDIA PARTNERS:

8:45

Co-Chairs’ Welcome Back and Recap of Day 1

9:00

Understanding How Consumer Protection Groups and the Plaintiff’s Bar Are Working in Tandem to Police Claims, Labeling, and Other Marketing Practices Leading to Class Actions

• How is the plaintiff’s bar targeting labeling practices governed by the FDCA and other statutes that do not include a private right of action?

• Understanding the role that consumer protection groups (and third parties that hold themselves out as consumer protection organizations) play in policing claims and labeling practices that springboard into class actions

» Assessing the DC Consumer Protection Procedures Act and precedent allowing third-party consumer protection groups the right to sue for allegedly false or misleading claims

» How can companies defend against third-party lawsuits and reduce the risk of these lawsuits?

» Understanding how industry can work with regulators and consumer protection groups to ensure proper claims and self-police thereby avoiding class actions

• Examining the plaintiff’s bar’s recent attempts to police claims and labeling like government regulators through recent class action activity

9:45

Crafting Successful Jurisdiction and Standing Arguments at the Motion to Dismiss Stage

• Identifying primary jurisdiction and standing arguments which may be effective in eliminating or narrowing a class at the motion to dismiss stage

• Understanding the primary jurisdiction challenges which are most prevalent in FDA-regulated consumer product class actions, as well as how to manage and overcome them

• Navigating standing in the aftermath of TransUnion LLC v. Ramirez: incorporating takeaways from the latest court rulings into your class action litigation practices and strategies

10:30

A New Look at Preemption: Recent Developments Impacting How Food, Cosmetic and Supplement Defendants May Rely on this Defense in Future Class Actions

• Examining the impact of MoCRA on future class action preemption defenses, particularly with regard to PFAS

• Assessing how recent FDA guidances (e.g. guidance for determining and declaring the protein grams in a serving) has helped to provide preemption defenses to false advertising in the food, cosmetic, as supplement space

• Analyzing recent case law developments impacting express and implied preemption and how this may be useful to FDA-regulated consumer goods companies

» Truss v. Bayer Healthcare Pharmaceuticals Inc.

» Nexus Pharmaceuticals Inc. v. Central Admixture Pharmacy

11:00 Morning Coffee Break

11:30

Combatting New and Creative Plaintiff’s Bar Tactics in FDA Consumer Product Class Actions

• Examining creative plaintiffs’ bar tactics being used in these types of class actions as well as winning defense strategies to combat them

• Identifying new types of causes of actions being brought: what do current trends in class claims predict about potential future class action activity?

• Tracking government and consumer protection group enforcement activity which the plaintiff’s bar might try to piggy-back on

• Exploring examples where plaintiff’s counsel has been successful in defeating preemption defenses

• In light of new developments in preemption, predicting how plaintiff’s bar tactics may change going forward

Advanced Settlement Strategies for FDA-Regulated Consumer Product Class Actions

• Identifying common challenges arising in FDA consumer product class settlements as well as key strategies for tackling those challenges

• Comparing class settlement trends by jurisdiction

» Identifying favorable jurisdictions to settle in, as well as jurisdictions to avoid settlement in

• Proven defense strategies for drafting settlement agreements, structuring the settlement benefit and noticing the class

• Working with a settlement administrator to ensure the settlement is implemented with efficiency and accuracy

• Understanding how to make the decision of whether to settle or go to trial

• Structuring your settlement agreement so you don’t leave yourself exposed to future lawsuits

1:00 Conference Ends

Post-Conference Workshop

Tuesday,

2:00–5:00

May

2, 2023

For In-Person Attendees only.

LAB - Learn, Apply, and Benchmark: Interactive FDA Consumer Product Class Action Defense Exercise

This hands-on workshop will test your litigation savvy through a series of complex, hypothetical scenarios which may arise in an FDA-regulated consumer product class action. Discover how your approach to mounting and tackling a class action defense compares to your peers. Benefit from a practical discussion and walk away with winning strategies for all phases of a class action litigation, including:

• Designing thorough internal class action preparedness protocols

• Forging pre-suit defense strategies

• Establishing document hold and retention policies

• Pre-suit demand letter protocols

• Considerations for budgeting and forecasting of litigation costs

• Building joint litigation agreements

• Class formation challenges

• Discovery challenges

• Knowing when going to trial is the right thing to do

• Understanding when settlement is your best option