Colleen Carey Gulliver

Consumer Class Actions

Contaminants

• Obtained dismissal on behalf of a leading pharmaceutical company in the first of sixteen putative class actions pending against the company alleging false advertising after a recall of a medicine due to the presence of a nitrosamine.  A judge in the Southern District of New York granted the company’s motion to dismiss the plaintiffs’ amended complaint in its entirety and with prejudice.  The Judge found that the plaintiffs had failed to state any of their seven claims, which included breaches of warranty and violations of New York and New Jersey consumer protection statutes
• Obtained dismissal on behalf of the same leading pharmaceutical company in a consolidated multi-district class action pending against the company alleging false advertising after a recall of a medicine due to the presence of a nitrosamine.  A judge in the Southern District of New York largely granted the company’s motion to dismiss the plaintiffs’ amended complaint on federal preemption under the Food, Drug and Cosmetics Act (FDCA)
• Obtained multiple strategic transfers on behalf of the same pharmaceutical company in the Southern District of Florida of similar consumer class actions to the Southern District of New York under the first-to-file rule and out of the plaintiffs' firms chosen jurisdiction.  In the first transfer decision, the Court determined that plaintiff's counsel, not the Company, was forum shopping. Plaintiff objected to the district judge, which sent the ruling back to the Magistrate Judge for further consideration. The Magistrate Judge recently reaffirmed his prior ruling, holding that transfer is appropriate under both the first-filed rule and in the interests of justice, which was reaffirmed by the district Judge
• Obtained dismissal on behalf of a food manufacturer in defense of a putative Racketeer Influenced and Corrupt Organizations Act nationwide class action brought by consumers in the District of Oregon alleging that manufacturers conspired to falsely advertise the presence of metals in baby food.  The plaintiff voluntarily dismissed the action after our motion to dismiss was fully briefed and the Court had heard oral argument on the motion
• Representing a food manufacturer in defense of twenty putative nationwide class actions brought by consumers in the Southern District of New York alleging false advertising related to the purported presence of heavy metals in baby food
• Representing a global water manufacturer in defense of a putative class action in Illinois federal court alleging false advertising related to the purported presence of microplastics and nanoplastics in the product
• Represented a textile manufacturer in defense of a demand notice alleging false advertising in regard to the presence of PFAS in its products
• Advising a food manufacturer on risks associated with new state regulations on the presence of PFAS in food packaging
  
   

Sustainability

• Obtained dismissal and attorneys’ fees sanctions on behalf of a global airline in defense of a putative class action challenging its “fly responsibly” campaign in the Southern District of New York.  The Court granted our motion to dismiss based on a factual challenge to standing because the plaintiff had not purchased her ticket through the airline but through a third party travel company.  The Court has ordered the plaintiff’s counsel to pay attorneys’ fees and costs from the filing of the motion to dismiss
• Obtained dismissal on behalf of the same global airline in defense of a putative class action challenging its “fly responsibly” campaign in the Eastern District of Virginia.  The Court granted our motion to dismiss in its entirety under Airline Deregulation Act (ADA) preemption  
• Representing same global airline in another copycat putative class action filed in the Eastern District of Virginia and Western District of Michigan challenging its “fly responsibly” campaign
• Representing an agricultural cooperative in a putative class action in California state court alleging false advertising regarding its sustainability statements
• Representing a leading food and beverage company in a putative class action filed in the Southern District of New York alleging that its carbon neutral certification is misleading
• Representing a global airline in an ESG litigation risk assessment
  
   

OTC

• Representing an OTC manufacturer in defense of a multi-district litigation involving numerous OTC manufacturers alleging false advertising due to the purported inefficacy of products containing phenylephrine 
• Representing vitamin manufacturer in defense of a pre-suit litigation demand alleging underdosing
• Obtained successful resolution of a putative class action filed in Oregon federal court on behalf of a supplement manufacturer alleging false advertising with regard to the serving size disclosure
• Obtained successful resolution of a pre-litigation demand alleging false advertising with regard to an OTC medication’s composition as compared to competitors 
  
   

FDA Labeling

• Obtained dismissal with prejudice for a food manufacturer in defense of a putative class action on behalf of New York, California and Illinois consumers in the Southern District of New York who asserted violations of those states’ consumer protection statutes and state law related to allegations of improper labeling of protein bars
• Obtained dismissal with prejudice for an agricultural cooperative in defense of a putative class action on behalf of New York consumers in the Eastern District of New York who asserted violations of New York consumer protection statutes and state law related to allegations of improper labeling of crackers.  Representing cooperative in defense of a copy-cat putative class action filed in New York state court
• Obtained dismissal of complaint for an agricultural cooperative in defense of a putative class action filed in the Southern District of New York who have asserted violations of New York consumer protection statutes, various state law claims and the Magnuson Moss Warranty Act related to allegations of improper labeling of related to the smoke flavoring of almonds.  First obtained dismissal on a motion to dismiss of the majority of the claims.  Court granted our motion to strike the plaintiffs’ only expert and our motion for summary judgment because the plaintiff had not demonstrated that he was injured or that any price premium existed for the product
• Obtained dismissal on a motion to dismiss of four copy-cat actions brought regarding the smoke flavoring of the same agricultural cooperative’s almonds.  The actions were filed in federal courts in Missouri, Florida, Wisconsin and Maryland.  Obtained further dismissal of two additional copycat actions in Pennsylvania and Connecticut
• Obtained dismissal with prejudice for an agricultural cooperative in defense of a putative class action on behalf of New York consumers filed in the Southern District of New York who have asserted violations of New York consumer protection statutes the Magnuson Moss Warranty Act and state law related to allegations of improper vanilla labeling. Several similar class actions are currently pending in the Southern and Eastern districts of New York and California federal court. A settlement resolving the actions received final approval in the Southern District of New York
• Obtained dismissal for a food manufacturer in a putative class action pending in the Southern District of New York where the plaintiff alleged the label statements “Delightfully Creamy” and “coffee creamer” on the client’s coffee creamer products were misleading because she believed the products contained cream or dairy instead of a milk derivative. Based on her subjective belief, the plaintiff asserted nine claims on behalf of herself and a class of all persons in Texas, Montana, Idaho, Alaska, Virginia, Kentucky, Kansas, Nebraska, North Dakota, Iowa, South Carolina, and Utah who purchased the products. Adopting largely all of our arguments, the Court dismissed the complaint in its entirety and with prejudice 
• Obtained dismissal on behalf of the same food manufacturer in a putative class action pending in the Northern District of Illinois where the plaintiff alleged the label statement “coffee creamer” on the client’s coffee creamer products was misleading because she believed the products contained cream or dairy instead of a milk derivative. The team moved to transfer the action to the Southern District of New York, where six months earlier the plaintiff’s counsel brought an identical suit. Even though the first-filed lawsuit had concluded, the Northern District of Illinois adopted our arguments and granted transfer to the Southern District of New York. The Court held that even though the pending litigation was recently dismissed, “this Court’s duplicative effort to become familiar with the controversy would be an obvious waste of resources.” After the transfer, DLA Piper e-mailed the plaintiff’s counsel with a summary of why the plaintiff had failed to state a claim. He voluntarily dismissed the suit that same day
• Obtained dismissal for CBD retailers in defense of a putative nationwide class action filed in the Southern District of Florida who have asserted violations of New York and Florida consumer protection statutes and state law related to allegations of improper labeling of CBD levels
• Successful resolution on behalf of CBD retailers of a putative class action filed in the Northern District of Illinois on behalf of Illinois residents who have asserted violation of the Illinois consumer protection statute related to allegations of improper labeling of THC levels
• Obtained dismissal on behalf of an agricultural cooperative in the defense of a putative class action pending in the Middle District of Florida asserting that its almonds are misleadingly labeled because they contain malic acid.  The plaintiff dismissed the complaint in advance of the oral argument on the motion to dismiss
• Representing an agricultural cooperative in defense of a pre-litigation demand related to the use of color additives
• Representing a global food manufacturer in defense of a putative class action pending 
  
   

Deceptive Practices

• Representing a gun manufacturer in defense of a putative class action pending in the Eastern District of Missouri asserting a consumer protection claim based on an alleged defect in a pistol

Breach of Contract

• Obtained dismissal with prejudice on behalf of a global airline in defense of a putative class action of nationwide consumers filed in the Northern District of Illinois who have asserted breach of contract claims related to Covid-19 and the airline's purported failure to refund.  The Court held, in an issue of first impression, that a consumer cannot sued in a U.S. court against an airline that incorporates European Regulation EU 261 into its contract of carriage because such incorporation effectively incorporates EU261's venue provision as well, which requires a customer to bring suit in a country within the European Union
• Obtained dismissal for a private non-profit university in defense of five nationwide putative class actions filed in the Southern District of New York who asserted breach of contract claims and various other state law claims related to Covid-19 and the university's purported failure to refund tuition and fees after its transition to remote learning. The fifth case was granted in part, with dismissal of the tuition claims, leaving only the fees claims.  The Court ordered expedited briefing of class certification and we obtained denial of class certification based on a lack of typicality, commonality, predominance and adequacy of the plaintiff and class counsel.  The plaintiff moved for reconsideration, which was also denied.  The sixth case is currently briefing class certification
• Obtained final approval of a class action settlement over an objection on behalf of a global airline in defense of two putative class actions of nationwide consumers filed in the Central District of California who have asserted breach of contract claims related to Covid-19 and the airline's purported failure to timely refund. Obtained dismissal of both original complaints. The amended complaints were sustained, and one of the two cases is on appeal to the Ninth Circuit
• Obtained final approval of a class action settlement for a global airline in defense of a nationwide class action in the Eastern District of New York. The complaint was brought on behalf of a nationwide class of members of the airline's frequent flyer program and alleged that the company breached its contract when it levied a fuel surcharge on reward tickets
  
   

Former Pricing

• Obtained dismissal of both an original and amended complaint on behalf of a computer manufacturer in defense of a putative class action in the Southern District of New York alleging false advertising in regards to former pricing of computers.  Motion to dismiss the second amended complaint is currently pending

Data Privacy and Data Breaches

• Obtained dismissal for global airline in a putative nationwide class action filed in the Eastern District of New York related to its cyber attack at a pre-motion conference and dismissal of its amended complaint after full briefing. The plaintiff asserted four state law claims and the court granted the airline's motion to dismiss on standing and preemption grounds. The Second Circuit affirmed the decision
• Obtained dismissal of a putative class action complaint without the necessity of a motion to dismiss in state court in California on behalf of all California residents who called its customer service line while in California on behalf of a global airline. The complaint asserted one cause of action for violation of California's Invasion of Privacy Act, and in particular California penal code section 632.7, unlawful recording or monitoring of calls

Statutory Violations

• Obtained favorable settlement for a global entertainment company in defense of a putative class action filed in the Southern District of New York asserting a violation of New York’s Arts & Cultural Affairs Law for a purported failure to disclose processing fees when purchasing tickets.  The settlement is currently awaiting a decision preliminary approval
• Obtained favorable settlement for a fitness company in a putative class action filed in the Central District of California. The plaintiff asserts claims for alleged violations of federal and state gift card laws (including the Credit Card Accountability Act and the Electronic Funds Transfer Act and certain California protection statutes). The Court granted in part and denied in part our motion to dismiss and after discovery, we obtained a favorable settlement, which the Court finally approved
• Represented the same fitness company in a putative class action filed in the Central District of California. The plaintiff asserts claims for alleged violations of California's health studio contract law and California's consumer protection statute
• Obtained a favorable resolution on behalf of a franchise of restaurants in a putative class action in California state court alleging improper gift card practices
• Representing a parent company of an operating amusement venue in defense of a putative class action filed in the Northern District of New York asserting a violation of New York’s Arts & Cultural Affairs Law for a purported failure to disclose fees when purchasing tickets or reserving rooms.  A motion to dismiss is currently pending

Securities Class Actions

• Obtained a favorable settlement for a Canadian pharmaceutical company in a securities fraud class action filed in the Southern District of New York
• Represented a financial institution in a multi-district litigation securities fraud class action filed in the Southern District of Texas and various opt-out actions. Obtained dismissal of the action after appeal to the Fifth Circuit
• Obtained favorable settlement for a leading defense and technology company and its officers and directors in a securities fraud class action filed in the Southern District of New York. The Court granted in part and denied in part our motion to dismiss and after summary judgment, we obtained a favorable settlement, which was finally approved
• Represented the same defense and technology company in follow on shareholder derivative actions. Obtained dismissal with prejudice of the shareholder derivative action filed in the Southern District of New York
• Obtained favorable settlement on behalf of officers and directors of a telecom company in a securities fraud class action filed in the Southern District of New York and shareholder derivative actions

Business Litigation and Dispute Resolution

• Obtained favorable resolution for a financial services company in a breach of contract dispute in New York state court
• Obtained favorable resolution for a global airline in an ERISA action brought by a former employee in the Southern District of New York
• Obtained a favorable out of court resolution on behalf of a Canadian investment company in a breach of contract dispute. After negotiations, obtained complete abandonment of claims
• Obtained favorable resolution for a global clothing retailer in a breach of contract dispute in New York federal court
• Represented a global media company in New York federal court in asserting claims for copyright infringement

Corporate Governance

• Represented a co-founder and director of a privately-held company in a proceeding seeking books and records of the company

White Collar, Corporate Crime and Investigations

• Represented a financial institution in insider trading cases brought by the US Attorney for the Southern District of New York and the SEC
• Represented a global pharmaceutical company regarding an internal review of potential violations of the Foreign Corrupt Practices Act