Legal Docket: Pet food and drug tests

NICK EICHER, HOST: It’s The World and Everything in It for this 4th day of November, 2024. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Time now for Legal Docket.

We have two Supreme Court arguments to analyze today. One is an employment dispute. The other concerns …

Pets, not people …

… and specifically …

Misbranded pet food …

a dispute over the food to be fed to a dog named Clinton, the pet of Anastasia Wullschleger.

Her beloved Clinton had some health problems. So the veterinarian she took him to put him on special dog food—the kind that requires a prescription.

Wullschleger says that’s bogus. Why a prescription when there’s no medication in the food?

The FDA didn’t evaluate it either, she says, so it’s really just a ruse to increase profit margins for pet-food companies.

EICHER: So Wullschleger filed a class-action complaint against two companies, Royal Canin and Nestle Purina.

She was joined in this by Geraldine Brewer who owns a cat named Sassie. The women accuse these companies of a conspiracy to drive up prices, to monopolize the market, and to mislead consumers with so-called “prescription” diets.

The accusations are tantalizing morsels of law, but the legal question for the Supreme Court is dry kibble, by contrast.

It’s highly technical and narrow: Where is this dispute rightly resolved—state court or federal court?

To be fair, it’s no small question, because each court system can only hear certain kinds of cases based on the laws involved. State courts generally handle local matters while federal courts handle disputes related to federal law or matters between citizens of different states.

And the procedures for each court differ.

REICHARD: This dog-food case bounced back and forth between state and federal court a few times.

The pet owners filed first. They went to state court. The companies moved the case to federal court—citing some federal claims included in the complaint. In response, the pet owners stripped out those references to federal law and so seek to move the case back to state court.

So given all that, does the federal court still retain the right to hear this case? Ashley Keller argued for the pet owners, saying of course not:

KELLER: The life of the law has not been logic. It has been experience. And experience should have taught us by now that a suit arises under the law that creates the cause of action. That should be the definitive test for arising under jurisdiction for at least three reasons.

EICHER: …reasons being the plain reading of the law, that’s one. Avoiding constitutional problems, two. And three, saving decades of pointless litigation over who hears what.

But the dog food makers argued the appeals court decision that went against her clients is an extreme outlier. Here’s lawyer Katherine Wellington:

WELLINGTON: Respondents cannot cite a single decision of this Court, a single decision of a court of appeals outside of the Eighth Circuit, or a single treatise that supports their position.

…p 71 And I think it's quite telling here that the Eighth Circuit reached the decision it did by apparently missing all of the footnotes that it should have read, including in Rockwell but also in the Second Circuit and the Eleventh Circuit decisions that it cited. So I think that's the reason we're here today.

….in particular, a footnote written by the late Justice Antonin Scalia.

After Wellington brought that up … it led to a back and forth on the importance of footnotes—and how the justices ought to think about them.

Here’s an exchange among Justices Samuel Alito and Sonia Sotomayor, and Wellington, the lawyer:

JUSTICE ALITO: Well, do you think that—that courts of appeals read our decisions differently than we may? I mean, you know, I'm—I was on a court of appeals for 15 years. If I saw a strong dictum in a Supreme Court decision, I would very likely just salute and move on. But, here — (Laughter.) We have —

JUSTICE SOTOMAYOR: Not now. (Laughter.)

JUSTICE ALITO:—more of an obligation—it depends, Justice Sotomayor — (Laughter.) both when we're considering—you know, when we're considering what we've written—we know how these things are written. You know, we know how these footnotes are written. Can—do we have liberty to read them a little bit differently?

WELLINGTON: Of course, the Court has the liberty to read its footnotes how it would like. But (laughs)...but I do think it is important to keep in mind here that the question is what did Congress intend?

REICHARD: Then there’s the matter of what’s known in the legal profession as “forum shopping.” Known, but frowned upon. To “forum shop” is to look for the most favorable legal venue and get the case heard there. Wellington for the dog-food makers warned against that, but it didn’t seem persuasive to Chief Justice John Roberts:

JUSTICE ROBERTS: I don't see how that's a problem here. They wanted --they start in state court; they want to go back to state court. They're not trying to manipulate anything.

WELLINGTON: So we think that it is forum manipulation, particularly in this case, where they waited almost two years to amend the complaint after they lose in the Eighth Circuit.

Listening to the full arguments, though, it seemed to me the justices were flummoxed by both sides.

On the other hand, the pets here: Clinton the dog and Sassie the cat? I think they just want dinner.

EICHER: This case may seem inconsequential, but however the court decides, there are big implications. State courts want to retain their authority to say what their own laws mean, while individual litigants do like to forum shop when they can.

Alright, now for that employment dispute.

This case concerns a commercial truck driver by the name of Douglas Horn. He lost his job because he tested positive for THC, the substance in marijuana that creates “the high.”

Horn says he didn’t know he’d ingested THC.

He said he was in pain and sought out a remedy. He said he found and took a CBD product made by Medical Marijuana, Inc that advertised zero THC. He’d researched that claim and called the company’s customer service line to confirm it.

REICHARD: After random testing showed otherwise, he sent the product for independent testing. That’s when he learned the product did contain THC.

So he sued the companies that made the CBD oil he’d ingested. His lawsuit alleged mislabeling. He brought the case under a federal law called RICO, the Racketeer Influenced and Corrupt Organizations Act.

EICHER: But here the question for the Supreme Court is: can he sue under a law that was designed to fight organized crime?

His lawyers, of course, think so and they point to the words in the RICO statute. Namely, any plaintiff can sue for what the law spells out as “injury to business or property by reason of” the defendant’s criminal actions.

Note that phrase: injury to business or property. Nothing in there about bodily harm.

So the CBD companies argue Horn has a personal injury claim, not a RICO claim. Lisa Blatt represents the companies:

BLATT: Let's just start with the text. I don't think there's a response to the fact that the other side is reading this as any person injured in his person, business, or property can recover three times the economic damages. So they're adding the word "injury," a personal injury, to the injury requirement, and they're adding the economic restriction to the damages. It completely flips this statute on its head. And this is the way the Clayton Act has been read since eternity, that personal injuries are not recoverable.

Justice Clarence Thomas invited Horn’s lawyer Easha Anand to explain:

JUSTICE THOMAS: Okay. So just walk me through factually what is the injury here.

ANAND: So the injury here is we were fired. That's the injury to our business. Now, as a measure of compensation for that, the damages we claim are an amount equal to the salary we would have made and the other economic benefits we would have gotten had we remained employed.

JUSTICE THOMAS: But Medical Marijuana did not fire you.

…correct, Anand replied, but loss of income from being fired is a business injury.

Justice Ketanji Brown Jackson carried that line of questioning even further, pointing out that it was Horn’s boss that fired him, not the CBD company.

You’ll hear Justice Jackson interrupt Blatt:

BLATT: But, if I ate poppyseed bagels and failed a drug test, it's a personal injury. If I took a medicine like doxycycline, which is an antibiotic, and I can't be out in the sun and I lose my job as a lifeguard, it's a personal injury claim.

JUSTICE JACKSON: But why are you saying that? You can --I mean, you're just saying that. I'm asking you, you know –

BLATT: Why am I saying it?

JUSTICE JACKSON: --there are there are personal injury claims that derive from a person being harmed by --by the ingestion of the product, right? They're bodily, physically harmed because they have taken this thing. I don't read this claim to be that kind of injury. He's not saying that the product itself injured him in any way.

BLATT: I think it is inconsistent with all of tort law to say a bodily invasion is not a personal injury just because you didn't have to go to the hospital or cough.

JUSTICE JACKSON: He voluntarily took the product.

BLATT: Well, we all do. We all take products that can be mislabeled. We take them and we either get sick or we don’t.

EICHER: Justice Brett Kavanaugh expressed concern that any lawsuit about false advertising could easily become a RICO case. And that would expand an already difficult area of law.

Anand for the truck driver tried to assuage that worry:

ANAND: And I think, most importantly, again, the mine-run of cases, the big chunk of recovery is pain and suffering or economic distress, and you cannot get those in --under civil RICO, right? Those are not injuries to business or property.

I just want to say that my bottom-line position here is defendants have come to this court for decades and said the sky is going to fall if you interpret RICO the way its text literally says it should be interpreted. The sky hasn’t fallen. This court has, time after time including unanimously in Bridge said, you know, Congress probably wrote a statute that’s a little too broad in some ways, but here we are and it should stay the course here.

REICHARD: My bottom line is the court must grapple with the difference between two complex things:

What’s the difference between suffering a personal injury versus suffering injury in one’s business?

They’re not the same thing, and the justices will need all the tools of statutory interpretation to get this right.

And that’s this week’s Legal Docket!

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