From Health-Focused Marketing
to Unappetizing Litigation:
The Latest Trends in Food Labeling
and Advertising Class Actions
Tuesday, July 31, 2012
arnoldporter.com
From Health-Focused Marketing
to Unappetizing Litigation:
The Latest Trends in Food Labeling
and Advertising Class Actions
Tuesday, July 31, 2012
8:30 − 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 3
Angel A. Garganta, Trenton H. Norris, Rhonda Stewart Goldstein, Jonathan L. Koenig
Practice Overview....................................................................................................... Tab 4
Consumer 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
„„
July 19, 2012
„„
May 15, 2012
„„
April 3, 2012
„„
July 5, 2012
„„
May 7, 2012
„„
March 27, 2012
„„
June 25, 2012
„„
April 27, 2012
„„
March 22, 2012
„„
June 15, 2012
„„
April 19, 2012
„„
March 19, 2012
„„
June 4, 2012
„„
April 11, 2012
Tab 1:Agenda
arnoldporter.com
From Health-Focused Marketing to
Unappetizing Litigation:
The Latest Trends in Food Labeling
and Advertising Class Actions
Tuesday, July 31, 2012
8:30 − 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 Marketing
to Unappetizing Litigation:
The Latest Trends in Food Labeling
and Advertising Class Actions
Arnold & Porter LLP
Law and Policy Series
Webinar
July 31, 2012
Presenters
Angel A. Garganta
Partner
Rhonda Stewart Goldstein
Associate
Trenton H. Norris
Partner
Jonathan L. Koenig
Associate
1
What Are Plaintiffs Attacking?
2
 Products that contain allegedly unhealthy
ingredients
g
((e.g.,
g trans fat, saturated fat,
HFCS, sugar)
3
 Health-benefit claims (e.g., Proven to Reduce
Cholesterol, Supports
pp
Immunity,
y Benefits Brain
Health, Combats Hangovers, Life-Enhancing)
4
 Ingredient Quality (e.g., 100% Pure Florida
Squeezed,
q
100% Pure Coconut Water, Kona
Blend, Fresh, Hot, and Delicious)
5
 All Natural (e.g., products allegedly containing
GMOs, synthetic
y
or artificial ingredients)
g
)
6
 Purported Misbranding (e.g., nutrient content
claims, g
good source claims, antioxidant claims))
7
Who’s Behind The Litigation?
Janet Lindner
Spielberg
Reese Richman LLP
Braun Law
Carella, Byrne, Cecchi, Olstein, Brody
& Agnello, P.C.
Pratt & Associates
8
Defense Litigation Strategies







Responding to Pre-Litigation
Pre Litigation Demands
Pre-Litigation Settlement
Standing/Pleading Motions
Opposing Class Certification
Summary Judgment
Class-Wide Settlement
Trial
9
Responding to Pre-Suit Demands
 Make your defense case early?
 Show good faith
 Consider risk of FTC and State AG actions
10
Pre-Litigation Settlement
 Cost
Cost-Benefit
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 settlement
– Consider chances of success at pleadings, class
certification, or summary judgment stages
11
Motion to Dismiss
and
Summary Judgment
12
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 attack
plaintiff’s claims at the class certification stage,
or on summary judgment?
13
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
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 the
th advertising
d ti i cause th
the consumer tto
purchase the product?
 Did the plaintiff suffer any injury?
15
Lack of Standing
 In re Fruit Juice Products Mkt’ing,
g, 11md2231 (D.
( Mass.))
– 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 poisoning
p
g
• Economic Injury: Plaintiffs would not have bought the
products if they knew they contained lead
16
Lack of Standing
 In re Fruit Juice Products Mkt’ing,
g, 11md2231 (D.
( Mass.))
– 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:
j
p
products were not valueless,, as Ps claimed
• “The fact is that Plaintiffs paid for fruit juice, and they
received fruit juice, which they consumed without suffering
harm.”
17
Lack of Standing
 Compare…
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
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
Failure to Properly Plead
 “[G]eneral
[ ]
allegations
g
[Plaintiff]
[
] makes about
– 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
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.
(C D Cal
Cal. Nov
Nov. 23
23, 2011)
– “Misleading” labeling of fat contents (95% fat free)
• Kuenzig v. Kraft Foods, et al., 11cv838 (M.D. Fla.
Sept. 12, 2011)
21
Preemption
 Non-preempted claims
– 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
action,
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
Limited Preemption of Natural Claims
 Hairston v. South Beach Beverage
g Co., 12cv1429
(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
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
Limited Preemption of Natural Claims
 Astiana v. Dreyer’s
y
Grand Ice Cream,, Inc.,,
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
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
Primary Jurisdiction
 Is
s tthe
e issue
ssue o
one
eo
of first
st impression?
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
provide guidance?
25
Prior Substantiation Claim
 Some courts have dismissed class actions alleging
th t advertising
that
d ti i claims
l i
are ffalse
l or d
deceptive
ti simply
i l
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
In 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
Warranty Claims
 Magnuson-Moss
g
Warrantyy Act
– 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.
v South Beach Beverage Co
Co., 12cv1429 (C.D.
(C D Cal
Cal.))
(dismissing Magnuson-Moss allegations regarding Lifewater
label 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
Summ. Judg.: Before or After Class Cert?
– Weiner v. Snapple Beverage Co., 07cv8742 (S.D.N.Y.)
• C
Courtt d
denied
i d class
l
certification,
tifi ti
and
d llater
t granted
t dS
Snapple’s
l ’
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
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
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
y will resolve an issue that is central to the
validity of each one of the claims in one stroke.”
Id. at 389-90.
30
Opposing Class Certification
 What does Dukes mean for food class actions?
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 time
– Challenged claims varied among products purchased
by the class
– Product characteristics varied by time or by product
31
Class Certification
 Defendant Win:
– 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
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 “almost
almost
certainly includes members who were not exposed to, and
therefore could not have relied on, Honda's allegedly
misleading material.”
33
Class Cert. – Nationwide Classes
 Similar rulings in recent food class actions:
– 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
Declining
li i tto d
decertify
tif a class
l
action
ti under
d Mazza.
M
• “[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
Settlement
 The conundrum: how to satisfy the plaintiffs
(and their counsel) and move on?
36
Settlement
 Considerations
–
–
–
–
Nationwide or statewide?
Adequate relief to the class
Capping attorneys’ fees
FTC and State AG follow-on cases
37
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
Settlement
 Rejected
j
Settlement
– 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
Take away points…
 Match marketing to R&D
– 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
certify a class
 Litigate Strategically
– Cost/benefits of settlement
– Timing of defense motions
40
Presenter Contact Information
Angel A. Garganta
Angel.Garganta@aporter.com
415.471.3285
Trenton H. Norris
Trent.Norris@aporter.com
415.471.3303
Rhonda Stewart Goldstein
Rhonda.Goldstein@aporter.com
415.471.3288
Jonathan L
L. Koenig
Jonathan.Koenig@aporter.com
415.471.3290
41
Tab 3: Presenter Biographies
arnoldporter.com
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
arnoldporter.com
Contact Information
Angel.Garganta@aporter.com
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

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
Angel A. Garganta
Arnold & Porter LLP 2

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
nd
Consumer Class Action Litigation" Speaker, American Conference Institute’s 2 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
Arnold & Porter LLP 3

Angel A. Garganta "California's Unfair Competition Law and the "No-Injury Class Action"
th
Speaker, The American Bar Association, 59 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
nd
the Class Action Defense for Early Success: ACI 2 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
Arnold & Porter LLP 4

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
Angel A. Garganta
Arnold & Porter LLP 5
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)
Angel A. Garganta
Arnold & Porter LLP 6
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).
Representative Matters
Consumer Law

Represented major food manufacturer in regulatory
proceedings and litigation brought by California attorney
arnoldporter.com
Contact Information
Trent.Norris@aporter.com
tel: +1 415.471.3303
fax: +1 415.471.3400
7th Floor
Three Embarcadero Center
San Francisco, CA 94111-4024
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
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
Trenton H. Norris
Arnold & Porter LLP 2

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
Trenton H. Norris
Arnold & Porter LLP 3
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
 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
Trenton H. Norris
Arnold & Porter LLP 4

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
Arnold & Porter LLP 5

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" Coauthor, 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 NonDiscrimination" 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
Arnold & Porter LLP 6

Trenton H. Norris "Proposed Changes and Other Sources of Low Hanging Fruit" CoPresenter, 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
Arnold & Porter LLP 7

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
Trenton H. Norris
Arnold & Porter LLP 8

"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)
Trenton H. Norris
Arnold & Porter LLP 9
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.
Representative Matters

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.
arnoldporter.com
Contact Information
Rhonda.Goldstein@aporter.com
tel: +1 415.471.3288
fax: +1 415.471.3400
7th Floor
Three Embarcadero Center
San Francisco, CA 94111-4024
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)

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.
Rhonda Stewart Goldstein
Arnold & Porter LLP 2
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
 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

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
arnoldporter.com
Contact Information
Jonathan.Koenig@aporter.com
tel: +1 415.471.3290
fax: +1 415.471.3400
7th Floor
Three Embarcadero Center
San Francisco, CA 94111-4024
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 Litigation
Experience 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.
v Snyder
Snyder’s
s of Hanover,
Hanover et al.
al
We represented Frito-Lay, Inc. in litigation brought by the California Attorney General and
several environmental groups alleging failure to warn of and false advertising regarding the
presence of the chemical acrylamide in potato chips and other snack foods. The chemical is
formed naturally when some foods are cooked but is on the California Proposition 65 list as a
carcinogen. The potato chip case was resolved on the eve of trial with Frito-Lay agreeing to
meet standards it developed during the course of the litigation. The other cases have also
been resolved on similarly favorable terms.
 People v. 21st Century Healthcare, Inc., et al.
We have represented 17 manufacturers and retailers of multivitamins in litigation
brought by the California Attorney General alleging failure to warn of the presence of
lead under Proposition 65 and the California Unfair Competition Law.
Law Arnold & Porter is
one of three firms that was chosen as liaison counsel for a group of approximately 45
defendants represented by over 20 law firms. The case is pending in the Alameda
Superior Court, complex division, and will address the requirements for warnings of low
levels of unavoidable contaminants.
2
Food Products Litigation Experience
 We defended The Dannon Company, the U.S. subsidiary of global
food 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
Food Products Litigation Experience
 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 dietary
supplements
pp
in several lawsuits and p
pre-litigation
g
investigations
g
byy p
private
enforcers of Proposition 65 alleging failure to warn consumers for heavy metals
and PCB’s, as well as in investigations by a dozen California district attorneys
and city attorneys and the California Attorney General of similar allegations and
allegations of false advertising for such products as joint health
supplements, mood supplements, fish oil, prostate health supplements,
and weight loss/appetite suppression supplements.

California Restaurant Association
We represented the California
Restaurant Association (CRA) in challenges
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 Restaurants
We also represent the National Council of Chain Restaurants
concerning U.S. FDA’s proposed regulations implementing
nationwide menu labeling requirements.
5
Food Products Litigation Experience

Trans Fat Litigation
We represented The Quaker Oats Co. and The Kroger Co. in two of the first consumer actions
involving labeling of trans fats on packaged foods.
foods Key issues include federal preemption.
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.
Courts in California, Kansas, and, Ohio granted our motions
and held that the
federal Nutrition Labeling and Education
Act (NLEA) only
requires 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.
6
Food Products Litigation Experience

Physicians Committee for Responsible Medicine v. McDonald’s, et al.
We represent six of the nation’s
nation s largest restaurant companies against an animal rights
group 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.

Delio, et al. v. McDonald’s Corporation, et al.
We represent McDonald’s and Friendly’s against two
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 Medicine
in 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
Food Products Litigation Experience

Johnson v. PatentHEALTH
We represented the manufacturer
f
off two dietary supplements, one advertised for
f 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.
. We represented a large
retailer of pet food
litigation concerning the
in a pet food product.
favorable terms on
manufacturer and a large
products in false advertising
claim of “no by-products”
The case settled on
a non-class basis.
8
Food Products Litigation Experience

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 are
cooked but is on the California Proposition 65 list as a carcinogen.
The case is pending in the Los Angeles Superior Court
Court.
9
Tab 6:Supporting Materials
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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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