“We’re looking for a
way to win outright.”
A commitment to ‘find a way’ opened a First Amendment strategy to defend the rights of home appliance manufacturers.
A creative strategy in a consumer class action in California saved the day for our client, a manufacturer of gas stoves. For the first time in a consumer-warning case involving home appliance manufacturers, a WTO team invoked established First Amendment principles to prohibit a group of plaintiffs from compelling product warnings that lacked scientific consensus.
“The ‘playbook’ strategy for a case like this is to seek dismissal for various technical reasons without challenging the core merits of the claims. That strategy rarely delivers a full victory and often leads into costly discovery, driving up the price of resolution,” said partner Drew Unthank. “But we don’t just follow the playbook when we see a better way. We’re looking for a way to win outright. And our clients trusted that approach.”
A New Path
In most consumer products class actions, plaintiffs claim misrepresentation, omissions, or both. In this case, after our team had dispatched the plaintiffs’ misrepresentation claims, the judge allowed plaintiffs to amend their pleading, in which they refocused on claims of omissions – asserting that our client had failed to provide proper warnings about the alleged health risks of household gas stoves.
At that point, Drew saw his opportunity. He argued in briefing and oral argument that the First Amendment protected our client from such compelled speech, and the judge ultimately ruled in our client’s favor, earning the client a full dismissal of the case.
The California victory has led WTO to representing a manufacturers’ trade association in a nationwide strategy to protect the speech rights of gas stove manufacturers from state laws and regulations that would force them to post and disseminate misleading, scientifically unproven disclaimers concerning their products. Partner Fred Yarger, former Solicitor General of Colorado, has teamed up with Drew to lead those cases, and in December, their team won a preliminary injunction preventing state enforcement of a Colorado law that singles out new gas stoves for warning labels.
KNow The Science
“These wins don’t happen without the scientific expertise our lawyers have built handling cases over many years,” said Fred. “Drew has worked with experts in dozens of cases and can immediately spot the weakness in their claims. He can tell when bold headlines or assertions aren’t supported by the facts and is brilliant at explaining the science in plain English to a judge or jury. And (of counsel) Diane Duero and Herman Hoying have years of experience litigating tough cases and rebutting shaky science as it relates to epidemiology—including, for example, in the Zoloft cases. So, our team is able to marry science and Constitutional law in a unique way.”
“Our clients were accused in the media of having buried the science, but what we showed instead was that the media was ignoring the full spectrum of available science and that when considered in full it became clear to two courts now that these claims have no basis.” said Drew.
