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October 2011

San Francisco Team Obtains Dismissal of Consumer Class Action Suit

Partner Brian Mooney obtained a dismissal with prejudice of a consumer class action in the Eastern District of California on behalf of an international medical device and pharmaceutical company. The plaintiff in that case had alleged various causes of action on behalf of herself and certain class members, including violations of California Business Professions Code sections 17200 and 17205, who purchased powdered baby formula products manufactured and distributed by the defendant which had been recalled due to the potential of contamination by insects at the defendant's manufacturing plant. Mr. Mooney, with co-counsel at Patterson Belknap Webb & Tyler in New York, filed a motion to dismiss the plaintiff's lawsuit pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing to the District Court that the plaintiff's claims were rendered moot by a refund program initiated by the defendant that offered customers reimbursement in full for the recalled products. Plaintiff argued that such refund program was ineffectual and did not moot her claims, as it did not fully compensate customers such as herself who purchased recalled baby formula products but did not keep proof of those purchases. The District Court granted the motion to dismiss, concluding that the defendant had "made a full offer of restitution to plaintiff for the recalled containers of Similac plaintiff alleges she purchased, even as to those for which she provides no evidence," and that such offer "moots plaintiff's claims and strips this court of jurisdiction." Accordingly, the court entered dismissal in favor of Gordon & Rees's client as to the entire lawsuit.

Brian J. Mooney



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