Litigation Highlights

Megan O'Neill

Founding Partner, Litigation Chair

“In prior Year in Reviews, I focused on what was new (e.g., a new office in New York, a new practice area, etc.). For DTO Litigation though, 2024 was less about “newness” and more about strengthening. We deepened our CPG (consumer packaged goods) client roster by adding two of the country's most prominent names. We continued to handle major, brand-impact class actions, further solidifying that practice. We also deepened our bench in New York and Silicon Valley with crackerjack litigators. And, as has been DTO’s hallmark since its inception, we saw clients come back to us for matter after matter because we put their needs first. (We win too, which helps.) As we look forward to 2025, we will be focused on resisting complacency, instead pushing ourselves to new levels of excellence.”

Class Action

Representing automobile company in a putative class action in which Plaintiffs allege certain vehicles suffer from a safety defect. Specifically, Plaintiffs allege certain vehicles have a defective R44 VTC Actuator which can malfunction, causing damage to engine components, including the timing chain and timing chain tensioner, and ultimately leading to catastrophic engine failure. DTO was able to eliminate the nationwide class claims, limiting certification to three classes: one in California and two in Illinois. At summary judgment, DTO persuaded the court to enter judgment against one of the Illinois classes (the largest of the three classes). Trial occurred and automobile company prevailed on the California claim. Both sides have appealed the verdict to the Ninth Circuit.

Representing Plaintiff in a trademark lawsuit against entertainment company in connection with the use of an infringing mark in a major movie picture. After both the district court and the Ninth Circuit ruled in favor of Defendant, DTO filed a cert petition with the United States Supreme Court. Recently, the Supreme Court granted the petition, and the case has been remanded back to the district court for further proceedings. The district court reversed its prior order and ordered the case to proceed to trial. Defendant's motion for reconsideration is still pending.

Trademark Litigation

Class Action

Representing Defendant, a hair care company, in a putative nationwide class action in which Plaintiffs argue Defendant has falsely advertised its entire product line. Specifically, Plaintiffs allege Defendant's decades-long advertisement that its products are "not tested on animals" is untrue because Defendant sold products in China during a time period when China required animal testing of certain cosmetic products. The case is currently in discovery.

Defended automobile company in a putative nationwide class in which Plaintiffs claimed Defendant's vehicles had a defective tow hitch wiring harness that was susceptible to catching on fire. After a series of Rule 12(b)(6) motions was able to reduce the scope of the case, a recall was issued which mooted Plaintiffs' claims. Plaintiffs proceeded to file an Attorneys’ Fees Motion, arguing they were the "catalyst" for the recall, while Defendant opposed arguing that was simply untrue. Ultimately, the court denied the motion, finding, inter alia, there was no evidence to suggest Plaintiffs were, indeed, the catalyst for the recall. The decision is one of the few in which a court denied catalyst fees in the automotive context. Following the ruling on the Plaintiffs’ motion, all remaining claims were voluntarily dismissed.

Class Action

CIPA

Successfully defeated wiretapping claims at the pleading stage in a case alleging violation of the California Invasion of Privacy Act. One of a flood of similar cases across the country, Plaintiff alleged that Defendant’s—a greeting card company—use of a third-party online chat feature constitutes wiretapping under California law. The court sustained Defendant’s demurrer to the original complaint, agreeing with DTO’s arguments that the allegations were entirely conclusory and showed nothing more than the chat feature acting as a tool in furtherance of company’s own operations. Nonetheless, Plaintiff pressed forward with an amended complaint. However, upon receiving notice that Defendant intended to demur once again, Plaintiff quickly requested dismissal of the lawsuit.

Represented tech company in a putative class action alleging Defendant falsely advertised its printers as compatible with non-brand ink cartridges—and then deployed post-purchase firmware updates to prevent the use of such cartridges. Plaintiff asserts consumer-protection claims under the laws of all 50 states, as well as computer-hacking claims based on the firmware updates. DTO filed a motion to dismiss Plaintiff’s claims on the basis that (a) he failed to allege any actionable misrepresentation, (b) Defendant had no duty to disclose the information on which the fraudulent omission claims were based, and (c) he lacked standing to assert any non-California law claims and also lacked standing to represent owners of other printers. DTO succeeded after two motions to dismiss in narrowing the case in two significant aspects: (a) all affirmative misrepresentation claims were dismissed without leave to amend, and (b) the Plaintiffs’ claims related to 97% of the printers at issue in the complaint were dismissed with prejudice. After minimal discovery, the case settled on an individual basis.

Class Action

Represented a biotech company in three separate matters. In a putative wage-and-hour class action, the Plaintiff, a lab technician, alleged that the company failed to provide adequate meal and rest breaks or pay all overtime wages due, among other claims. In a representative action brought under California’s Private Attorneys’ General Act, the Plaintiff, a lab technician, alleged that the company did not provide adequate meal and rest breaks, itemized wage statements, or overtime compensation and sought to recover penalties on behalf of the other employees and the California Labor Commissioner. In a putative wage-and-hour class action, Plaintiff alleged that the company did not provide adequate meal and rest breaks, itemized wage statements, or overtime compensation and sought to recover past wages and penalties on behalf of all non-exempt employees in California.

All matters resolved favorably at mediation in November 2024.