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State trial court data and analytics company Trellis lands Alon Shwartz, as Co-Founder and Chief Product Officer and closes an additional $4.4M dollar funding round, led by Craft Ventures.  Included in the flurry of progress and announcements for the state court data and analytics startup, Trellis also announced that David Sacks, Founding COO of Paypal, Founder/CEO of Yammer, and Co-Founder of Craft Ventures has joined the Trellis Board of Directors. 

Trellis new co-founder and CPO, Shwartz, is a career entrepreneur and prominent LA tech exec who previously co-founded Docstoc – an original TechCrunch40 company – that helped small businesses and professionals find the legal documents and content they needed to start, and grow, their businesses. As CTO at Docstoc, the startup grew rapidly and was ultimately acquired by Intuit (INTU) in 2013. Prior to founding Docstoc in 2007, Shwartz was a product manager at MySpace.

“I’ve gotten to know this team as an advisor since Trellis’ early days and there is no team with whom I’d rather be working!” Shwartz said in a statement.  “We are extremely fortunate to have Alon join our team.” says Clark. “His business experience and technical acumen have already had an immediate impact on the growth of our company.”  

Trellis’s recent funding round was led by Craft Ventures, a San Francisco based venture capital firm, founded by David Sacks, which has invested in startups such as Bird, Reddit, and SpaceX.  “David is widely known in the tech startup space as an entrepreneur’s entrepreneur – with an amazing knack for product vision and an instinct for spotting successful companies” said Nicole Clark, Trellis Co-Founder and CEO. “We’re lucky to have experienced board members like David who can weigh in on strategic decisions as we navigate growth.” 

“Trellis has made tremendous strides since graduating from TechStars LA in 2018, shaking up the legal research space and providing litigation professionals with an invaluable service,” said Sacks. “I look forward to working with Trellis’ talented leadership team to help them scale as they expand service to additional states.”

About Trellis

Trellis, named to the National Law Journal’s Emerging Legal Technology Companies of 2020, helps legal practitioners gain powerful insights on judges and opposing counsel by sifting through millions of state trial court records which have historically been inaccessible.  Trellis’s judicial analytics and Issues & Motion library help users prepare better filings and make more persuasive arguments in state trial court. Trellis was founded by Nicole Clark, a career litigator alongside Alon Shwartz as co-founder and CPO. Trellis has received funding from well known institutional investors including Craft Ventures, Okapi Venture Capital, Sequoia Scout, Revel Ventures and Intrepid Ventures. Trellis is also a graduate of Techstars LA 2018. For more information, visit trellis.law.

State trial court data and analytics company Trellis Research lands Alon Shwartz, as Co-Founder and Chief Product Officer. Shwartz is a career entrepreneur and prominent LA tech exec who previously co-founded Docstoc – an original TechCrunch40 company – that helped small businesses and professionals find the legal documents and content they needed to start, and grow, their businesses. As CTO at Docstoc, the startup grew rapidly and was ultimately acquired by Intuit (INTU) in 2013.  Shwartz was also the CEO and founder of unGlue, a modern parental control solution, as well as two other la based startups. Prior to founding docstoc in 2007, Shwartz was a product manager at MySpace.

Shwartz continues to be an active investor, advisor, and coach to multiple LA based startups helping to nurture the LA tech community.  “I’ve gotten to know this team as an advisor since Trellis’ early days and there is no team with whom I’d rather be working!” Shwartz said in a statement.  “We are extremely fortunate to have Alon join our team.” says Nicole Clark, Trellis’ CEO and Co-Founder.  “His business experience and technical acumen have already had an immediate impact on the growth of our company.”  

In addition to landing Shwartz, and putting in place the building blocks of a powerful executive team, Trellis just announced the closing of an additional $4.4M dollar funding round which was led by Craft Ventures.  Craft Ventures is a SF based venture capital firm founded by notable entrepreneur David O. Sacks which has invested in startups such as Bird, Reddit, and SpaceX. 

Clark, a career litigator, developed the platform for her own use while litigating in Los Angeles. Trellis currently operates the largest searchable database of California Superior Court records and judicial analytics. In 2020, Trellis will expand coverage to the state courts of New York, Texas, Florida, and Delaware allowing litigators to access historically inaccessible state court data and gain strategic insights on judges and opposing counsel.

 

About Trellis: Legal Intelligence

Trellis: Legal Intelligence helps legal practitioners practice more strategically by gaining powerful insights from state trial court records which have historically been inaccessible.  Trellis also provides practical judicial biographies as well as actionable analytics on individual judges. Their Motion & Issues section and Ruling Analysis Reports on individual judges help users prepare better filings and make more persuasive oral arguments. Trellis was founded by Nicole Clark, a career litigator. Trellis has received funding from well known institutional investors including Craft Ventures, Okapi Venture Capital, Sequoia Scout, Revel Ventures and Intrepid Ventures. Trellis is also a graduate of Techstars LA 2018. For more information, visit trellis.law.

Examining CCP 170.6 Peremptory Challenges

Everyone knows that a lawyer must understand the legal thresholds applicable to their cases. However, it is just as important that a lawyer understands their judge—their background, their preferences, their tendencies. This is the information through which a lawyer can map an effective litigation strategy, a strategy that includes careful consideration of whether or not to “ding” a particular judge, meaning request assignment to a different judge through a CCP 170.6 peremptory challenge.

Between 2006 and 2018, the largest percentage of CCP 170.6 challenges filed in the Superior Court of Los Angeles County involved wrongful termination and other employment claims.

There are at least two ways we can perform a closer study of this diagram. We might, for example, add a temporal dimension to this data.

This move highlights the extent to which wrongful termination cases did not always come with the most CCP 170.6 challenges in Los Angeles County. In fact, in 2009, intellectual property claims elicited the largest percentage of peremptory challenges against judges.

We can also direct our attention to the parties issuing CCP 170.6 challenges.

Within the Superior Court of Los Angeles, more than half of all CCP 170.6 challenges have been filed by plaintiffs, with plaintiffs filing the highest percentage of CCP 170.6 challenges in writ and breach of contract claims.

These analyses underscore an interesting dynamic. The data presented thus far tell us little about the individual judges that have presided over cases in Los Angeles County. They tell us much more about how lawyers have acted on their own judicial inferences.

Let’s move to the Superior Court of Napa County. What can we learn about the judges that have presided throughout this county?

Between 2006 and 2018, breach of contract claims garnered the highest percentage of CCP 170.6 challenges in Napa County.

Yet despite facing the highest volume of peremptory challenges, as a whole, the five judges assigned to the most breach of contract cases have ruled fairly consistently between 2006 and 2018. Each judge has granted 70 to 71 percent of the causes of action (in breach of contract filings) over which they have presided.

A similar story emerges when it comes to demurrers in breach of contract filings. These same judges have shared similar ruling tendencies, overruling demurrers in 40 to 50 percent of filings. (Yet we can see that Judge C is a slight outlier. This judge has had the highest percentage of overruled demurrers and the lowest percentage of sustained demurrers.)

Even though each judge has ruled fairly consistently in breach of contract cases, there are noticeable differences in how litigators have dinged particular judges with CCP 170.6 challenges.

Judge B, for example, received 23 percent of all CCP 170.6 challenges filed in breach of contract claims; 16 percent of these filings were initiated by plaintiffs. This appears to make sense. Judge B was, after all, the judge with the highest percentage of sustained demurrers. But what about Judge C? Judge C received only 6 percent of all CCP 170.6 challenges filed in breach of contract claims. However, all of these challenges were filed by plaintiffs. This, despite the fact that Judge C comes with the highest percentage of overruled (and the lowest percentage of sustained) demurrers in breach of contract claims. That is to say, Judge C appears to have been relatively plaintiff-friendly in breach of contract filings.

This raises the question: Why has a judge like Judge C received so many plaintiff-initiated challenges when based on the data, Judge C tends to favor Plaintiffs?

Trends in judicial rulings are not the only significant pieces of information to consider. It’s also important to understand how lawyers have acted on the peer-sourced information they have collected, both on judges and each other. Relying on anecdotes alone (as lawyers have historically done) may no longer serve litigators or their clients. It’s important to integrate hard data and legal analytics into strategic decision making as peer sourced information may be out of date, distorted, and inherently biased.

Nicole Clark is the CEO/Co-Founder of Trellis: Legal Intelligence and a former business and employment litigator. 

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A new law will go into effect across California on January 1, 2020. California Senate Bill 188 revises the definition of race articulated in the Fair Employment and Housing Act (1959). This definition will now include hair texture and protective hairstyles—traits historically associated with race.

Senate Bill 188 creates an opportunity to review the ways in which the courts have—or have not—helped to enforce employment discrimination laws throughout California. Let’s begin by looking at the data for Los Angeles County.

The graph below outlines the number of trials for employment related cases in Los Angeles County from 2009 to 2018. It is easy to spot the outlier. The number of trials in employment discrimination cases increased by a whopping 100 percent from 2009 to 2016.

Let’s take a closer look at this increase. By disaggregating employment discrimination cases into different categories, we can see that disability discrimination cases and racial discrimination cases accounted for the majority of this growth.

But how have these trials concluded?

After reviewing the outcomes in employment discrimination cases tried to verdict, a somewhat surprising trend appears. It’s clear that the courts have sided with defendants in almost every single type of employment discrimination case. That is, except for gender discrimination cases. Or, to put things differently, plaintiffs have been far more successful in proving gender discrimination claims in jury trials, than any other type of employment discrimination claim, in Los Angeles County between 2009 and 2018.[1]

Placing these outcomes next to those for all employment-related cases provides some perspective. By zooming out, we learn that plaintiffs and defendants fared similarly in retaliation and wrongful termination trials, with plaintiffs experiencing a slight advantage between 2009 and 2018. The story changes with sexual harassment cases. And it changes even more with employment discrimination cases.

Historically speaking, federal courts have been the primary place for relief in employment discrimination claims. In fact, employment discrimination claims have sometimes represented “the largest single category of civil litigation cases in federal court.”[2]

This, however, is no longer the case. It has now become common knowledge that the federal courts tend to disfavor employment discrimination plaintiffs. In Bell Atlantic Corp. v. Twombly (2007), the Supreme Court of the United States adopted a new, more stringent plausibility standard, one that increases the burdens a plaintiff must bear in an employment discrimination case. It has become much more difficult for a plaintiff to counteract a motion to dismiss an employment discrimination claim in a federal court.

Not only that, but many state courts have more plaintiff-friendly employment discrimination laws. For example, the Fair Employment and Housing Act of the State of California offers protections for employees that do not exist at the federal level. In California, employment discrimination is defined more broadly, adding sexual orientation, gender identity, and marital status to its list of protected categories. It is also applicable to a larger number of businesses. Many federal anti-discrimination statutes cannot be triggered until a business has at least fifteen employees. However, in California, these statutes can apply to businesses with five or more employees.

The result? The changing landscape of federal pretrial policies, along with more favorable state law statutes, have pushed employment discrimination cases away from federal courts, with most plaintiffs opting to file their claims in the state court system.

There is at least one reason why such a change might matter. The life tenures granted to federal judges affords a level of judicial independence that does not exist at the state level. California Superior Court judges must be elected by their county’s voters every six years, a situation that can expose the rulings of state court judges to more political pressures than those of federal court judges.

How will the expanded definition of race embedded within Senate Bill 188 affect these trends? The moves of policymakers suggest that employment discrimination filings are difficult to win because of the way the law is written. Legal analytics, however, suggests that there are more complex structural issues at play, issues that involve the politics of judicial independence.

[1] This analysis is specific to cases that have made it through to verdict. It should be noted that the low verdict success rates for plaintiffs may be tied to defendants settling cases that they believe have merit, long before they actually go to trial.

[2] Schneider, Elizabeth M. 2010. The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases. University of Pennsylvania Law Review 158(2):517-570.

Nicole Clark is the CEO/Co-Founder of Trellis: Legal Intelligence and a former business and employment litigator. 

How the Community Redevelopment Law Paves the Way for a Gentrified Los Angeles

Crossroads_of_the_World (1)

Its design resembles an ocean liner, with rounded edges and porthole windows. The building is surrounded by a small village of bungalows, a commercial complex constructed in 1936 by Robert V. Derrah, the architect behind the Coca-Cola Building in Los Angeles. This is the Crossroads of the World.

This cluster of buildings began as a shopping center. Then, in the 1940s and 1950s, it transitioned into offices, housing Standard Oil, American Airlines, and the Screen Actors Guild. Now, it is slated for redevelopment.

The Crossroads Hollywood Project is a $1 billion project designed to bring 950 units of residential housing to Sunset Boulevard. However, before it can build these units, the project must demolish several old structures, including 82 units of rent-stabilized housing within the historic Selma-Las Palmas Courtyard Apartments.

Located in the Hollywood Section of the City of Los Angeles, the Selma Apartments are a complex of three, two-story courtyard-apartment buildings. As a property type, these courtyard apartments represent Hollywood in the 1920s, an example of the neighborhood’s transition towards higher-density forms of housing. They are also icons of the Hollywood Regency Revival style, a style characterized by “the bold use of color and contrast.” With its metallic and glass accents, the Selma Apartments signify “both opulence and comfort,” looking both frivolously overdone and sleekly modern.

On 19 February 2019 AIDS Healthcare Foundation and Livable LA commenced proceedings against the City of Los Angeles, the Community Redevelopment Agency of Los Angeles, and CRE-HAR Crossroads SPV. The filing demands a writ of mandate, compelling the City of Los Angeles to comply with the affordable housing requirements of the Hollywood Redevelopment Plan and the Community Redevelopment Law in its approval of the Crossroads Hollywood Project.

According to the petitioners, the Crossroads Hollywood Project fails to follow Health and Safety Code Section 33413 of the Community Redevelopment Law, as it makes no provisions to ensure that at least 15 percent of all new housing units developed within the Hollywood Redevelopment Area are affordable ones. They continue, stating that only 11 percent of the project’s residential units are set to be available to low- and moderate-income residents. In other words, the petitioners argue that the Crossroads Hollywood Project will exacerbate the affordable housing shortage, removing 37 affordable housing units from the area.

In a judicial move that illuminates the limitations of the Community Redevelopment Law, Judge Daniel S. Murphy of the Superior Court of Los Angeles County denied the request in a tentative ruling issued on June 10, 2019. His ruling is instructive, for it highlights the legal technicalities through which redevelopment projects are able to displace low- to moderate-income residents, all against the Community Redevelopment Law’s provisions to do otherwise.

The stated purpose of the Community Redevelopment Law is to ensure that redevelopment expands the supply of low- and moderate-income housing; increases employment opportunities for jobless, underemployed, and low-income persons; and provides an environment for “the social, economic, and psychological growth and well-being of all citizens.”

Judge Murphy reminded the relevant parties that the requirements for affordable housing do not apply to individual projects. As it is written, the Community Redevelopment Law does not require that the Crossroads Hollywood Project set aside 15 percent of its 950 dwelling units for low- to moderate-income individuals. The law applies to the entire Hollywood Redevelopment Area. This means that these affordable housing requirements are the responsibility of the City of Los Angeles to distribute as it sees fit. They are not the responsibility of the designers of any particular project. Legally, the Crossroads Hollywood Project is allowed to proceed, even if it will exacerbate the affordable housing shortage in the Hollywood Redevelopment Area.

As the Crossroads Hollywood Project materializes, the gap in affordable housing is expected to rise, moving the Hollywood Redevelopment Area further away from the 15 percent requirement. The City of Los Angeles will need to offset this shortfall in affordable housing somewhere else within the redevelopment area. It is unknown where and when this will happen, leaving residents sitting and waiting, all in the hopes that someday the City of Los Angeles will find a way to alleviate an ever-expanding shortfall.

Nicole Clark is the CEO/Co-Founder of Trellis: Legal Intelligence and a former business and employment litigator. 

A Case of Gender Pay Discrimination in Silicon Valley

As a Director of Sales Operations of Hewlett-Packard Enterprise Company (HPE), R. Ross regularly encountered financial and personnel documents, some of which revealed confidential details about the salaries of her male colleagues.

She began to notice a pattern.

It appeared as though the base pay of male employees consistently exceeded those of female employees who were hired at HPE at the same, a disparity that existed even when the female employees had more extensive work experience. This pattern quickly became personal. Her superiors had drawn similar conclusions about her own compensation, noting to Ross that her salary was less than her male colleagues—individuals who were performing similar work under similar conditions.

Turning Observations into Allegations

The information uncovered by Ross is at the heart of a putative class action filed against HPE in the Superior Court of Santa Clara County late last year, which alleges gender-based pay discrimination in violation of the California Equal Pay Act (EPA).

As a multinational corporation headquartered in Palo Alto, HPE is the next tech giant in line to face a lawsuit regarding gender discrimination. Other companies to face similar gender discrimination class claims include DisneyOracleRiot Video Games. Like most large technology companies, HPE is largely composed of men. Women make up only one-third of its workforce, filling 81 percent of its administrative support jobs, 17 percent of its technician jobs, 22 percent of its sales jobs, and only 17 percent of its management jobs. HPE has left its pay grades information opaque to employees in each of these categories, even instructing them “to keep their compensation to themselves” and not “compare their compensation to coworkers during salary negotiations.” Following amendments to the Equal Pay Act, companies can no longer prohibit employees from discussing information about their wages with co-workers.

The Demurrer: An Opportunity for Judicial Analytics to Impact Equal Pay Case Trajectories

The EPA, which was codified into Section 1197.5 of the California Labor Code, states:

An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions, except where the employer demonstrates the wage differential is based upon one or more of the following factors: a seniority system; a merit system; a system that measures earnings by quantity or quality or production; a bona fide factor other than sex, such as education, training or experience.

In other words, once a plaintiff has made a prima facie showing in support of a gender-based pay discrimination claim, the burden then shifts to the employer, who must demonstrate that the wage differential is based on one of the exceptions listed above.

Before tackling this burden, HPE initially responded to the lawsuit with a demurrer to the complaint. According to HPE, the plaintiffs lacked a claim because they failed to identify a specific male “comparator.” Some federal courts have made this a requirement for a prima facie showing in gender-based pay discrimination cases, asserting that a plaintiff must demonstrate that she was paid lower wages than a male “comparator” for similar work. Some state courts have followed suit requiring comparator evidence be sufficiently alleged.

And, with this, HPE’s demurrer was sustained as to the plaintiff’s individual claims.

Contextualizing the Demurrer – Insights on Use of Early Dispositive Motions in Equal Pay Cases

From a judicial analytics perspective, this outcome is not particularly surprising. Within the Superior Court of Santa Clara County, demurrers have been sustained more often than they have been overruled. Not only that, but the presiding judge, the Hon. Brian C. Walsh, has tended to rule more favorable on demurrers than some of his peers, sustaining nearly 88 percent of recent demurrers filed within his court, while still granting leave to amend.

This, however, is only the beginning of the story. For HPE, the defendant’s demurrer was sustained, but with a caveat. The judge’s decision in this matter was partially informed by comparator requirements. Instead, it was largely informed by the plaintiffs’ counsel’s position that plaintiffs did not seek to pursue individual claims under the EPA in this matter. Rather, according to the plaintiffs, the purpose of this complaint was to set forth a pattern and practice of discrimination; it was never intended to present individual claims.

And thus, even with a sustained demurrer, the judge granted leave to amend, and the case will proceed. Judge Walsh concluded that the “plaintiffs are not required to identify specific comparators at the pleading stage, with regard to their individual or their class claims.” That is to say, a resolution to the comparator issue is not required—at least not yet. However, it is an issue that will need sufficient evidentiary support once the plaintiffs seek class certification.

There is much more to this case than the final outcome of the demurrer. Instead, the demurrer is a single step in a long journey towards resolution of a complex and evolving issue wherein judicial interpretation of the amended EPA is only beginning to weave its way through our lower courts.

Although the positive outcome on demurrer in this case didn’t shield the defendants from continued litigation, the successful use of offense as defense is an example of ways in which quantitative data can affect and transform the trajectory of a case. In this case, although the plaintiff’s were allowed to amend their pleadings, the defense got valuable insights into the judge’s thinking on “comparator” requirements in EPA cases.

Tracing the paths of judicial reasoning, is just as important as identifying their quantitative tendencies. Researching analysis in trial court rulings, such as the Hon. Walsh’s reasoned analysis on demurrer in Ross v. HPE, helps to clarify and contextualize the outcome in the instant matter, but more importantly, it provides valuable insights into judicial interpretation of the rapidly evolving Equal Pay landscape for litigators who find them themselves on either side of the EPA fence.

Nicole Clark is the CEO/Co-Founder of Trellis: Legal Intelligence and a former business and employment litigator. 

The Legal Lessons Learned from the Fight against Big Tobacco

You may have heard the commercials, the ones that end with the dramatic warning:
NICOTINE IS BRAIN POISON.

Launched by the Tobacco Control Program of the California Department of Public Health, the Flavors Hook Kids campaign seeks to educate the public about the country’s newest epidemic—teen vaping. Listeners learn that teen vaping is on the rise. According to the latest preliminary results from The National Youth Tobacco Survey by the Centers for Disease Control and Prevention, 27.5 percent of high school students reported using an e-cigarette in the past 30 days. (That is 7 percentage points higher than it was in 2018.) Commentators have been quick to blame their youthful flavors, suggesting that cotton candy, gummy bear, and graham cracker flavored e-cigarettes have helped fuel their popularity among middle and high school students.

Switch the channel. You might hear a news update about the mysterious outbreak of a pneumonia-like lung ailment affecting young, otherwise healthy, individuals. As of September 19, 2019, 530 medical cases of severe lung damage have been reported across the country, which experts have linked to the use of e-cigarette products.

Vaping is everywhere. It is in our schools, on our radios, in our hospitals. And increasingly, it is also in our courtrooms.

From Medical Case to Legal Case

Edith Anne and Robert Petrucci initiated legal action against a series of e-cigarette manufacturers and distributors on February 26, 2018. Filed in the Superior Court of Los Angeles County, the complaint concerns alleged injuries (bronchiolitis obliterans with organizing pneumonia) sustained as a result of exposure to the toxic chemicals found in e-cigarettes. The plaintiffs have eight causes of action, ranging from negligence, strict liability (failure to warn), and fraudulent concealment to intentional misrepresentation and negligent misrepresentation.

This case should sound familiar, an echo from the era of big tobacco litigation, when smokers, their families, and government entities filed hundreds of claims against tobacco companies. In the early 1950s, scientific reports began to emerge identifying a link between cigarette smoking and cancer. Then, from 1954 to 1973, smokers and their families filed individual lawsuits against cigarette manufacturers, claiming negligence, breach of warranty, and misrepresentation (e.g., Ross v. Philip Morris CompanyCooper v. R.J. Reynolds Tobacco Co.Pritchard v. Liggett & Myers Tobacco CompanyGreen v. American Tobacco Company).

The response? Tobacco companies refused to settle out of court, maintaining that even if tobacco is harmful to smokers (an assertion they continued to deny), users assumed the risk of cancer each and every time they lit up their cigarettes; tobacco manufacturers lacked sufficient knowledge of any causal links between smoking and cancer, a lack which precluded them from any duty to warn their customers.

These arguments worked. And they continued to work into the 1980s, after a second wave of lawsuits introduced failure to warn and strict liability elements. In the era of the Public Health Cigarette Smoking Act (1970), these plaintiffs argued that tobacco companies failed to take reasonable care to warn consumers about the potential dangers of cigarettes. The tobacco companies repeated the same refrain: smokers assumed the risk of cancer and other health problems when they started smoking (e.g., Cipollone v. Liggett GroupGalbraith v. R.J. Reynolds Tobacco Co.Roysdon v. R.J. Reynolds Tobacco Co.).

But things changed in the 1990s. This was the decade of class action suits (e.g., Engle v. Liggett GroupMoore v. American Tobacco CompanyUnited States v. Philip Morris, Inc.). Plaintiffs began to have more success in their claims against tobacco companies, especially when those plaintiffs were government entities. At this time, dozens of states sued tobacco companies under state consumer protection and antitrust laws, noting the significant financial burden placed on public health systems as a result of the health problems associated with tobacco use. They also cited the tobacco industry for its deceptive and fraudulent marketing, highlighting its tactics of targeting children and concealing the negative health effects of smoking. Tobacco companies could no longer rely on their tried-and-true defense about individual responsibility.

From Big Tobacco to Big Vape

Let’s return to the Petrucci case. In response to their filing, the defendants submitted a series of demurrers to the fraudulent concealment and intentional misrepresentation claims. The plaintiffs claimed that they started using e-cigarettes as a way to stop smoking cigarettes. They continue, stating that they would not have adopted e-cigarettes if they were aware of the toxic chemical contained within them. Much like tobacco litigation in the 1980s, the plaintiffs alleged that e-cigarette manufacturers and suppliers had a duty to warn consumers about the toxic chemicals contained within their products.

Here, the plaintiffs adopt another set of legal techniques, the ones successfully deployed in the third wave of tobacco litigation—allegations of deceptive and fraudulent marketing. According to their filing, e-cigarette manufacturers published misleading advertisements. Fontem, for example, promoted its e-cigarettes with slogans like “Take back your freedom with Blue eCigs the smart alternative to cigarettes,” “Freedom to have a cigarette without the guilt,” and “Rise from the ashes.” Such slogans, the plaintiffs argued, misrepresented e-cigarettes by suggesting they are safer to use than conventional cigarettes.

So far, the Petrucci case has survived demurrers against the fraudulent concealment and intentional misrepresentation claims. The case, however, is still young. The vaping illness outbreak has highlighted the gaps in scientific knowledge about the health impacts of vaping, both in the short-term and in the long-term. Much like the scientific research about tobacco in the 1950s, the causal links between vaping and lung diseases are still murky. Which toxic chemical(s) was responsible for the plaintiff’s injuries? What knowledge did the defendants have about their toxicity? How does that level of knowledge affect their duty to reasonably warn their consumers? Already, we can see that a historical analysis of tobacco litigation allows us to anticipate some of the difficulties the plaintiffs and the defendants might expect.

Nicole Clark is the CEO/Co-Founder of Trellis: Legal Intelligence and a former business and employment litigator.