Photo of David T. Biderman

David Biderman, a partner in Perkins Coie's San Francisco and Los Angeles offices, focuses his practice on mass tort litigation and consumer class actions. He heads the firm's Mass Tort and Consumer Litigation group. He has represented a wide variety of companies in state and federal courts in California for 30 years.

On consumer class actions, David represents packaged food companies, coffee companies, dairy companies, footwear companies and others whose nutritional or health claims have been challenged. He also has represented search engines and other online companies. He has a record of favorable results for clients. He successfully tried a major consumer fraud class action on behalf of one of the world’s major search engines in a case involving online gambling advertisements. For that same client, he negotiated a favorable settlement of a class action challenging its online advertising pricing. He represented a major coffee retailer in defeating a class action on standing grounds. He also has litigated pre-emption defenses arising out of food labeling and obtained a dismissal for a client whose nutritional statements were challenged.

For fifteen years, David managed the firm’s full-service product liability team responsible for defending over 1,000 toxic tort cases pending in Los Angeles and Northern California state courts. These cases entailed ongoing trial activity at various levels for several trials set each month. The highly experienced and well-coordinated team has handled thousands of asbestos toxic tort cases for a variety of clients, including FORTUNE 500 companies from such industries as consumer products, aerospace manufacturing, household goods, dry cleaning and industries that generate electromagnetic fields, such as electric utilities and operators of wireless communications systems.

 

On Monday, June 3rd, California’s Office of Environmental Health Hazard Assessment (OEHHA) approved a new regulation exempting coffee from Proposition 65 warnings. The rule states that: “Exposures to chemicals in coffee, listed on or before March 15, 2019 as known to the state to cause cancer, that are created by and inherent in the processes of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.”  OEHHA announced the approval of the coffee exemption regulation on Twitter and confirmed that the new rule will take effect on October 1, 2019.

Continue Reading Industry Insights: Coffee Products Exempted from Proposition 65

With fifteen new cases filed in April, total filings on the year are slightly down from last year—there have been sixty-nine total new filings in 2019 compared with seventy-seven by this time last year. Most new filings were in California. Only one new case was filed in New York, down from six last month.

Most of the new cases were false labeling cases, with only one slack fill and two all-natural cases.  Plaintiffs in Shand v. Original New York Seltzer, 19STCV14020 (La. Supp. Ct.), alleged that defendant seltzer beverages are labeled as though they are a product of New York, when the drink is neither bottled in New York nor contains New York water. Shand adds to a recent trend of similar “origin” lawsuits, including several suits last month challenging coffee manufacturers’ characterization of beans as “Kona-style” when they were not grown on the Big Island. Tea beverages were under fire in April. Plaintiffs in several cases alleged that defendants misleadingly labeled their tea products as providing energy from ginseng when the products do not contain detectable amounts of ginseng.

On the natural front, plaintiffs in one case alleged that defendants misleadingly labeled their parmesan cheese product as “all natural” when it contains starch and potassium sorbate. In another, plaintiffs claim defendant misleading labeled its tapenade as “all natural,” even though it contains xanthan gum.
Continue Reading PC Food Litigation Index: April 2019

On March 25, 2019, Judge Gary L. Sharpe of the Northern District of New York dismissed a putative class action against CVS and Lang Pharma alleging that the labeling of defendants’ CVS Omega-3 Krill Oil is deceptive and misleading.  Plaintiff in the lawsuit, James Gaminde, alleged that CVS Omega-3 Krill Oil contained only sixty percent

As you all know, the Northern District of California jury found earlier this week that Monsanto’s Roundup herbicide product was a “substantial factor” in causing a plaintiff’s non Hodgkin lymphoma. The defendants and industry were all very optimistic that the trial, which focused solely on causation and not knowledge or company conduct, would result in an impartial scientific analysis. Unfortunately, the jury ignored a very substantial body of literature that glyphosate, the active ingredient in Roundup, is safe. It also ignored the conclusions of virtually every regulatory or public health group, including the Environmental Protection Agency (EPA), subcommittees off the World Health Organization (WHO) and the European Food Safety Authority (EFSA). Unfortunately, hundreds of similar cases are pending and a state court jury in Alameda also rendered a verdict against Monsanto.

Continue Reading Notable Ruling: Glyphosate Verdict—Implications for Food Litigation

Perkins Coie is pleased to present its third annual Food Litigation Year in Review, offering a summary of the year’s key litigation outcomes, regulatory developments, and filing data. Last year, pointing to uncertainty at the appellate level, Perkins Coie predicted continued litigation in 2018. Using metrics from our proprietary database, developed by our food

Each month we will be sharing the PC Food Litigation Index, a summary of latest class action filings in the food and beverage industry. This data is compiled by Perkins Coie based on a review of dockets from courts nationwide.

August 2018 continued this year’s trend of higher monthly filings than in 2017. False advertising, slack-fill and health maintenance claims were filed this month. Some claims were filed in batches. For instance, two class action suits were filed in the Central District of California in two days, Garcia v. Himalayasat-Sustainable Sourcing, LLC, et al. and Garcia v. Frontier Natural Products Coop., et al., alleging that salt is a mineral and not an agricultural product so therefore salt cannot be identified as organic. Thus, Erika Garcia claims, the defendants’ mislabeling falsely and deceptively induced her to purchase the product based on misrepresentations.

In addition, the Center for Food Safety filed a slew of claims in late August against multiple grocery chains claiming the chains sold peanut and almond butter products that contain acrylamide, a substance “known to the state of California to cause cancer,” and despite exposing its customers to the chemical, the chains fail to provide the required Proposition 65 warning.  These filings continued into the month of September.

Continue Reading PC Food Litigation Index: August 2018

Last week, the California Court of Appeal held that a plaintiff’s suit seeking to require Proposition 65 acrylamide based cancer warnings on 59 popular breakfast cereals was pre-empted by federal nutrition policies aimed at encouraging Americans to consume more whole grains and by FDA letters stating that any warnings should be deferred given the uncertain science on the risks to humans of acrylamide in food. This conflict pre-emption ruling should help convince courts in other contexts that state warning requirements should defer to more carefully articulated federal policies.

Acrylamide, which forms in many foods during high-temperature cooking (e.g., frying, roasting, baking), has been a Proposition 65 listed substance since 1990, though its presence in food was not discovered until 2002. As the FDA has stated, there is much uncertainty if the levels of acrylamide in food pose any risk to humans.
Continue Reading Notable Ruling: Precedent-Setting Proposition 65 Pre-emption Decision Involving Breakfast Cereal

food-lit-imagePerkins Coie has published its first Food Litigation Year in Review, covering key developments and trends in food litigation for calendar year 2016.  The Year in Review’s key insights include data-driven assessments of how (and where) the plaintiffs’ bar has continued its assault on the food industry in 2016. That data reflect the filing

Amnesty International recently released a report alleging that supply chains for production of palm oil—a common ingredient in many consumer products—are tainted by forced and child labor. In the nearly 150-page report titled “The Great Palm Oil Scandal: Labour Abuses Behind Big Brand Names,” Amnesty International accuses several major brand-name consumer goods companies of sourcing palm oil from suppliers that operate plantations where the alleged abuses took place.

The report has already received substantial media attention, including articles published by Forbes, The Washington Post, Reuters and Yahoo News. Although the accuracy of the report’s assertions have not been tested, it nonetheless emphasizes the growing importance of proper diligence in supply chain management and compliance with associated legal obligations for a company’s disclosures about its supply chain practices.

Continue Reading Palm Oil Supply Chain Abuses Reported by Amnesty International: Steps to Mitigate Legal Risk