Product Liability

Arbitration and Class Actions in the Supreme Court: American Express v. Italian Colors Restaurant - Podcast

Litigation Practice Group Podcast
Thomas G. Hungar, Dean A. Reuter May 01, 2013

Arbitration and Class Actions in the Supreme Court: American Express v. Italian Colors RestaurantIn American Express Co. v. Italian Colors Restaurant, the Supreme Court considered an important question regarding the enforceability of arbitration agreements that contain class action waivers.  In 2011, the Court held in AT&T Mobility LLC v. Concepcion that state law purporting to invalidate class action waivers in arbitration agreements is preempted by the Federal Arbitration Act.  In Italian Colors, however, which involves a Sherman Act class action brought by retailers against American Express for alleged tying violations relating to its credit card agreements, the Second Circuit held that the “federal substantive law of arbitrability” invalidated the class action waiver provision in American Express’s arbitration agreements with merchants that accept its credit cards.  The court of appeals reasoned that the class action waiver provision was invalid under federal law because it would “effectively preclude any action seeking to vindicate the statutory rights asserted by” the plaintiff class, given the prohibitive expense of trying to prove an antitrust claim on an individual basis.  The Second Circuit concluded that Concepcion was inapposite, because there had been no showing there that “the practical effect of the enforcement would be to preclude [the plaintiff class’s] ability to vindicate their statutory rights.”  The Supreme Court will now decide whether its Concepcion decision really did vindicate the ability of business defendants to enforce class action waivers in arbitration agreements, or instead whether plaintiffs can escape such provisions whenever they can show that individual litigation of federal claims would be prohibitively expensive.

Our expert, Thomas G. Hungar of Gibson, Dunn & Crutcher, attended the oral argument and then provided his analysis of the merits of the case and the possible outcomes in light of the oral arguments.


  • Mr. Thomas G. Hungar, Partner, Gibson Dunn & Crutcher LLP
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

Bruesewitz v. Wyeth, Inc. - Post-Argument SCOTUScast

SCOTUScast 11-16-10 featuring Mark A. Behrens
Mark A. Behrens November 16, 2010

SCOTUScastOn October 12, 2010, the Supreme Court heard oral argument in Bruesewitz v. Wyeth, Inc. This case concerns the National Childhood Vaccine Injury Act, which protects vaccine manufacturers from liability for certain injuries caused by their vaccines; injured patients receive compensation from the government instead of the vaccine manufacturers. The question in this case is whether that immunity applies when the victim claims that the design of the drug created an avoidable and unnecessary risk to patients.

To discuss the case, we have Mark A. Behrens, who is a partner at Shook, Hardy, & Bacon L.L.P.

Bruesewitz v. Wyeth, Inc. - Post-Decision SCOTUScast

SCOTUScast 03-02-11 featuring Mark A. Behrens
Mark A. Behrens March 02, 2011

SCOTUScastOn February 22, 2011, the Supreme Court announced its decision in Bruesewitz v. Wyeth, Inc. The question presented in this case was “whether a preemption provision enacted in the National Childhood Vaccine Injury Act of 1986 (NCVIA) bars state-law design-defect claims against vaccine manufacturers.”

By a margin of 6-2, the Court answered that question in the affirmative.  Justice Scalia, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Breyer, and Alito, held that “the National Childhood Vaccine Injury Act preempts all design-defect claims against vaccine manufacturers brought by plaintiffs who seek compensation for injury or death caused by vaccine side effects.”

Justice Breyer filed a concurring opinion.  Justice Sotomayor, joined by Justice Ginsburg, dissented.  Justice Kagan took no part in the consideration or decision of the case.

To discuss the case, we have Mark A. Behrens, who is a partner at Shook, Hardy, & Bacon L.L.P.

Class Action Watch October 2008

William E. Thomson, Kahn A. Scolnick, James R. Copland, Jimmy Cline, Laurel Harbour, Lyle Roberts, Mark A. Behrens, Frank Cruz-Alvarez, Andrew Grossman November 19, 2008

 In this issue of Class Action Watch, William E. Thomson and Kahn A. Scolnick look at the new punitive damage limits as set by the U.S. Supreme Court. Jim Copland reports on "the largest class-action lawsuit ever filed in America." Jimmy Cline talks about a recent holding by the Arkansas Supreme Court that potential conflicts of law cannot defeat class certification. Laurel Harbour reviews a New Jersey Supreme Court holding that rejected medical monitoring in product liability claims. Lyle Roberts discusses the selection of lead plaintiff and lead counsel in securities class actions. Mark A. Behrens and Frank Cruz-Alvarez report on the Rhode Island Supreme Court rejecting public nuisance claims. And Andrew M. Grossman comments on the Grand Theft Auto class action. [Read now!]

Consumer Product Safety Commission (CPSC) - Podcast

Administrative Law & Regulation Practice Group
Robert S. Adler, Nancy A. Nord, Harold D. "Hal" Stratton June 04, 2010
The enacted Consumer Products Safety Improvement Act of 2008 mandated the promulgation of over 40 new regulations by the U.S. Consumer Product Safety Commission (CPSC), comparable to as many regulations as have been promulgated under the significant safety acts enacted since the CPSC's inception. This act also provided all 50 state attorneys general with new enforcement powers over several aspects of the federal product safety laws. Our speakers CPSC Commissioner Nancy Nord and CPSC Commissioner Robert Adler provide analysis and commentary on past legislation and the current Consumer Product Safety Enhancement Act of 2010 now pending in Congress. Among other issues, the speakers will provide their views on what has been the most significant change or impact to the agency since the enactment of the CPSIA. Are there changes that need to be made to the CPSIA? What are the pros and cons of the CPSC's recent vote on "reasonable testing plans" within the certification process? Mr. Hal Stratton of Brownstein Hyatt Farber Schreck LLP moderates.