Weil successfully represented Procter & Gamble (P&G) as lead counsel in a high-profile MDL in U.S. District Court for the Southern District of Florida in which plaintiffs allege that they were injured through their use of the popular denture cream, Fixodent. Specifically, plaintiffs allege that zinc contained in the denture creams manufactured by P&G and others caused neurological problems. Plaintiffs filed numerous Florida state law claims, including strict product liability, negligence, intentional misrepresentation, breach of express warranty, implied warranty, and violation of Florida’s Deceptive and Unfair Trade Practices Act. In 2014, Weil won a significant victory before the Eleventh Circuit that affirmed the trial court’s Daubert and summary judgment orders in the lead case, which excluded plaintiffs’ expert testimony and resultantly found that plaintiffs could not sustain their burden of proof. While the Chapman case was on appeal, the remaining plaintiffs in MDL 2051 were granted an opportunity to proffer new experts and any new science in support of their causation theory. P&G again challenged plaintiffs’ new experts and purported new science through the submission of additional Daubert motions. In January 2015, the trial court granted P&G’s motion to exclude all of the plaintiffs’ general causation experts, a decision that led to the dismissal with prejudice of 62 plaintiffs’ complaints in April 2015. In June 2016, the Eleventh Circuit once again affirmed the trial court’s Daubert order and orders of dismissal. Plaintiffs’ petition for certiorari to the U.S. Supreme Court was denied on October 25, 2016. P&G then moved for summary judgment in approximately six cases in which plaintiffs argued that they were not subject to the district court’s Daubert ruling. The district court granted summary judgment in all of these cases, bringing seven years of litigation to a close on October 25, 2016.The Eleventh Circuit dismissed subsequent appeals by five of these six plaintiffs in November 2016 and January 2017.
Weil also served as lead trial counsel for P&G in a consumer fraud class action in federal court in Ohio. Prior to our retention, the five-state class of purchasers of P&G’s best-selling probiotic dietary supplement, Align, had been certified, and subsequently upheld by the Sixth Circuit. Plaintiffs alleged that P&G’s marketing of Align was misleading, and sought a full refund, with total damages totaling hundreds of millions of dollars. In early October 2017, on the eve of trial, P&G was able to settle the seven-year litigation on very favorable terms.
Weil represents Sterling Jewelers in Jock v. Sterling, a class arbitration widely recognized as the largest private Title VII class action in the country, and a corresponding gender bias EEOC suit. In Jock, which is being litigated by the well-known plaintiffs’ firm Cohen Milstein, Weil successfully defeated class certification of all of the disparate treatment gender discrimination claims, substantially narrowing the scope of the remaining claims against Sterling. In late July 2017, Weil obtained a significant victory for Sterling when the Second Circuit vacated an earlier decision of the U.S. District Court for the Southern District of New York and remanded the case to Judge Rakoff to address whether the arbitrator in fact had the power to bind tens of thousands of absent class members who had never opted into the litigation.
Weil also secured a major victory for Sterling in the EEOC litigation by obtaining a complete dismissal on the basis that the EEOC had failed to produce any evidence demonstrating that it had complied with its Title VII pre-suit obligation of conducting a nationwide investigation of Sterling’s employment practices. This decision was subsequently overturned by the Second Circuit in September 2015, thereby reviving the EEOC’s nationwide gender bias suit. Weil petitioned the U.S. Supreme Court to undo this Second Circuit decision. Weil successfully negotiated a virtually unprecedented settlement of the EEOC’s largest matter with no payment to the government being required by our client.
Weil was retained to defend Tuesday Morning Inc., a national retailer, in a large putative California wage and hour class action involving nearly 4,000 potential class members in a matter before Judge Edward Chen in the Northern District of California (McMahon v. Tuesday Morning, Inc.). Plaintiff asserted class claims for failure to provide rest breaks, failure to timely pay all final wages, violation of California’s unfair competition law, and civil penalties under the Private Attorneys General Act (PAGA), seeking to recover substantial eight-figure damages. At an early court-ordered mediation, Plaintiff’s counsel refused to settle the case for less than eight figures, but following a big victory by Weil on a key dispositive motion, Plaintiff agreed to settle the case for a six-figure number. This case also involved a ground-breaking ruling on how PAGA settlement funds should be allocated to the class versus the state of California.
Weil obtained the dismissal, with prejudice, of a separate putative California wage and hour class action filed against TMI, in which plaintiffs asserted class claims for failure to pay wages without discount in violation of California Labor Code Section 212 on behalf of TMI’s entire California workforce based on TMI’s use of payroll debit cards, failure to provide meal and rest periods, and failure to pay hourly wages, as well as other derivative California wage-based claims. Plaintiff then filed an appeal with the Ninth Circuit Court of Appeals, but before TMI was required to file its response, the parties reached a settlement whereby the matter was resolved on an individual basis for a nominal sum.
Weil also hired as replacement counsel in a third California state court wage and hour class action following a series of adverse rulings – including the granting of Plaintiffs’ motion for class certification and the denial of Defendant’s subsequent motions for decertification and summary judgment. Among other California wage and hour claims, plaintiffs challenged TMI’s practice of providing “on-duty” meal periods to its California Senior Sales Associates, an issue that is not frequently litigated and on which there is limited and ambiguous legal authority. The certified class included current and former employees of all 87 of TMI’s California-based stores. Following our retention as counsel, we negotiated an extremely favorable resolution for our client by, among other things, developing and marshalling the discovery record in a manner that evinced compliance on TMI’s part with the DLSE’s standards for “on duty meal periods” and virtually eliminating any PAGA penalty exposure through a novel but substantiated interpretation of that statute.
Weil also successfully settled another California-based putative wage-and-hour class action filed against the company, and obtained an early dismissal on a motion to dismiss of another California-based putative class action brought against TMI involving claims under the Fair Credit Reporting Act and the California corollary background and credit check statutes.
On July 22, 2016, Weil achieved a decisive win for VOXX International Corporation and its CEO and CFO in a securities fraud class action pending in the U.S. District Court for the Eastern District of New York, when Judge Joanna Seybert dismissed all of plaintiff’s claims.
The plaintiff in this action alleged, largely on the basis of statements made by a confidential witness, that VOXX made false or misleading statements regarding the financial performance of VOXX’s “premium audio” segment, as well as the value of goodwill and other intangible assets. Agreeing with Weil’s arguments, the Court granted VOXX’s motion to dismiss, ruling in a 27-page opinion that the complaint failed to plead any actionable false or misleading statements. In particular, the Court held that the statements and opinions attributed to plaintiff’s confidential witness – allegedly a former VOXX employee – “are too vague to form the basis of a fraud claim,”and that plaintiff’s allegations regarding intangible assets failed to meet the steep requirements regarding misstatements of opinion enshrined in the U.S. Supreme Court’s Omnicare decision. Plaintiffs were given 60 days to file a second amended complaint, but ultimately never did so. The Court entered a “take nothing” judgment in favor of VOXX in November 2016, closing the case.