On February 21, 2023, the Supreme Court declined to review a California court’s decision imposing $344 million in civil penalties on a medical-device manufacturer for marketing its pelvic mesh product within the State. The decision was a setback for WLF, which filed an amicus brief in the case detailing how a series of statutory and prosecutorial overreaches have radically transformed California’s well-intentioned consumer-protection laws into a trap for the wary and unwary alike. As WLF’s brief showed, California law fails to put the public on fair notice of what kind of conduct constitutes a violation. With no definition of a “violation” for purposes of assessing penalties, courts are left to interpret and apply amorphous, elastic, and imprecise language—such as whether a practice is “unlawful,” “unfair,” or “fraudulent”—on a case-by-case basis. WLF’s brief was prepared with the pro bono assistance of Elizabeth Andrews, Dane Chanove, Kaitlin O’Donnell, and Moses Tincher of Troutman Pepper Hamilton Sanders LLP.
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