Fishkin Lucks Wins Reconsideration and Dismissal in the Philadelphia Court of Common Pleas

The Philadelphia Court of Common Pleas granted the Firm’s motions for reconsideration of its February 2020 orders overruling the Firm’s clients’ Preliminary Objections (“POs”) and dismissed with prejudice, for lack of personal jurisdiction, the plaintiff’s complaint against Firm clients Texaco Inc. and Union Oil Company of California. Plaintiff, an out-of-state resident whose claims arose outside the Commonwealth, had initially defeated the Firm’s POs by arguing that the court had jurisdiction over Texaco and Union Oil based on their registration to do business in Pennsylvania. In overruling the POs, the court declined to credit the Firm’s arguments that “registration-based” personal jurisdiction is unconstitutional based on a series of decisions beginning with Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S.915, 919 (2011), where the United States Supreme Court held that the exercise of general jurisdiction based on a foreign corporation’s contacts with the forum state is constitutional only where the corporation’s “affiliations with the State” are “so ‘continuous and systematic’ as to render [it] essentially at home in the forum state,” and continuing with Daimler AG v. Bauman, 571 U.S. 117, 139 n. 19 (2014), where the Supreme Court reaffirmed and clarified Goodyear’s “essentially at home” test, explaining that where a corporation is neither incorporated nor has its principal place of business in the forum, jurisdiction should only be exercised in the most “exceptional” circumstances. However, in December 2021, in Mallory v. Norfolk Southern Railway Co., 266 A.3d 542 (Pa 2021) the Pennsylvania Supreme Court agreed with the Firm’s arguments that premising personal jurisdiction on a foreign corporation’s registration to do business in the Commonwealth is unconstitutional. The Firm successfully argued on reconsideration that, based on Mallory, Goodyear, and Daimler, there was never any basis for the Court of Common Pleas to exercise personal jurisdiction over Texaco or Union Oil, which were not and are not “essentially at home” in the Commonwealth.

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Fishkin Lucks Wins Motion to Dismiss in Western District of Pennsylvania

The Firm scored an early victory today in the United States District Court for the Western District of Pennsylvania, securing an order dismissing the Firm’s client, a publicly traded chemical distributor, from a third-party action for contractual indemnification and common law contribution. After a lengthy hearing, the Court found that a forum selection clause in the parties’ agreement mandated that the action be litigated in Virginia, notwithstanding the third-party plaintiff’s arguments that the clause was unreasonable and otherwise unenforceable.

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Fishkin Lucks Scores Voluntary Dismissal in Eastern District of Pennsylvania

The Firm secured a voluntary dismissal in the United States District Court for the Eastern District of Pennsylvania of all claims brought against our client, a leading manufacturer of protective paints and coatings. Plaintiff had alleged that our client’s floor stain product had caused a spontaneous combustion event leading to a fire that substantially damaged plaintiff’s investment property. Plaintiff alleged that the floor stain was defective for failing to adequately warn about the alleged dangers of spontaneous combustion.

Trying to avoid the consequence of an earlier judgment the Firm secured on its client’s behalf in the United States District Court for the Central District of California, holding that the stain product’s label met all requirements of the Federal Hazardous Substances Act (FHSA)insofar as warning about the risk of spontaneous combustion, plaintiff moved for partial summary judgment, arguing that her warning claims were not governed by the FHSA. We opposed plaintiff’s motion, arguing that the claims were both expressly and impliedly preempted by the FHSA and that plaintiff was collaterally estopped from contesting that fact. After considering the parties’ multiple rounds of briefing, and hearing from the parties at a lengthy argument, the Court (Hon. Edward G. Smith) telegraphed that it was likely to rule in our client’s favor. Rather than risk the precedential effect another adverse decision would have on other “spontaneous combustion claims” pending against our client, plaintiff voluntarily dismissed her claims with prejudice

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Fishkin Lucks Names New Partners

Fishkin Lucks is pleased to announce that Erin O’Leary and Aaron Loterstein have been elevated to Partner.

Erin, a commercial litigator, joined the Firm as a senior associate in 2018 and was elevated to counsel in 2021. Before joining the Firm, Erin was a senior associate at a top national firm. Erin earned her J.D., with honors, from the University of Connecticut School of Law, where she was a published member of the Connecticut Insurance Law Journal and a decorated member of the Moot Court Board, and her B.A. from the University of Richmond, magna cum laude. Erin is admitted to practice in New York, New Jersey, Connecticut, and Massachusetts state and federal courts.  

Aaron, also a commercial litigator, joined the Firm as an associate in 2017, after spending several years as an associate at Davis Polk. Aaron earned his J.D. from the University of Michigan Law School, magna cum laude, where he served as an Articles Editor for the Michigan Law Review and was a member of the Order of the Coif, and he received his B.A. from Yeshiva University, summa cum laude. Aaron is admitted to practice in the New York state and federal courts. 

Erin and Aaron are extraordinarily talented lawyers and fierce advocates for our clients. Their well-deserved elevation reflects the Firm’s ongoing commitment to organic growth by promoting from within.

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Fishkin Lucks Prevails in Central District of California

The Firm won summary judgment in the United States District Court for the Central District of California, which dismissed all claims brought against our client, a leading manufacturer of protective paints and coatings. Plaintiff’s claims arose out a serious fire that plaintiff had argued was caused by the spontaneous combustion of rags containing our client’s floor stain product. Plaintiff argued that our client’s product was “misbranded” under the Federal Hazardous Substances Act (FHSA) for failing to adequately warn about alleged dangers relating to spontaneous combustion.

Following extensive discovery, the Firm moved for summary judgment, primarily arguing that, although our client’s product bore a clear spontaneous combustion warning, it was not required to because spontaneous combustion is not a “principal hazard” as defined by the FHSA, and the FHSA requires that labels warn only about principal hazards.

The District Court (Hon. Stephen Wilson) issued an interim ruling (i) agreeing with the Firm’s argument that spontaneous combustion is nota “principal hazard” as defined in the FHSA, but (ii) finding that the avoidance of spontaneous combustion nevertheless is a “precautionary measure” that was required to have been addressed on the product label pursuant to a different provision within the FHSA. Thus, the court ordered the parties to file supplemental briefing solely on the discrete issue of whether the spontaneous combustion warning was appropriately “prominent” and “conspicuous,” as is required for “precautionary measures” under the FHSA.

In its supplemental briefing, in addition to addressing the discrete issue identified by the court, the Firm argued (again) that the spontaneous combustion warning was not required in the first place. The Firm cited authority supporting the proposition that “precautionary measures” were required under the FHSA only with respect to avoiding “principal hazards,” which the court had already ruled spontaneous combustion was not.


The court ultimately agreed with the Firm’s arguments and awarded our client summary judgment. Reversing in part its earlier ruling, the court agreed that, although the relevant product had a spontaneous combustion warning, that warning was not required, for the reasons the Firm had argued. The court further held that even assuming a spontaneous combustion warning were required, our client’s product would not be “misbranded” under the FHSA, because its spontaneous combustion warning met or exceeded the FHSA’s prominence and conspicuousness requirements.

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Fishkin Lucks Defeats Putative Class Action in the District of New Jersey

Fishkin Lucks prevailed on a motion to dismiss a putative class action brought against its client, Western Union, in the United States District Court for the District of New Jersey.  The named plaintiff, who resides in France, filed the action in the Superior Court of New Jersey (Morris County), asserting claims on his own behalf and on behalf of a global class of all consumers who sent money transfers from Western Union locations outside the United States to the United States, or paid for money transfers with funds debited from a United States bank account.  The plaintiff asserted common law misrepresentation and omission claims and a statutory cause of action brought under the New Jersey Consumer Fraud Act, challenging the sufficiency of Western Union’s disclosures concerning the foreign exchange rate that it applied to money transfers.  The Firm removed the action pursuant to the Class Action Fairness Act and then moved to dismiss, arguing that for several reasons, the plaintiff had failed to state a viable claim.  

In response to the Firm’s motion, plaintiff amended his complaint to narrow the putative class to Western Union customers who sent money transfers from France to the United States, or to other countries when using funds debited from a United States bank account.  The Firm moved to dismiss the amended complaint on two independent grounds.  First, we argued that given the inherently France-centric nature of the plaintiff’s claims, his lawsuit belongs, if anywhere, in France, and it should therefore be dismissed under the doctrine of forum non conveniens.  Second, we demonstrated that as in the complaint, the claims in the amended complaint failed as a matter of law (under both New Jersey and French law), because the plaintiff had failed to identify any actionable misrepresentation or omission, or violation of the New Jersey Consumer Fraud Act.  

In a detailed opinion, the Court (McNulty, J.) granted our motion to dismiss on the basis of forum non conveniens, agreeing that given the French-focused nature of plaintiff’s allegations, the claims belong, if anywhere, in France.  Moreover, the Court noted that while it did not need to reach our arguments that the plaintiff had failed to state a claim, it is “far from obvious” that his claims would have survived a motion to dismiss.

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