Plaintiffs’ Lawyers’ Laboratory – Novel Theories of Liability Proceed
Product Liability
All Eyes on California Supreme Court
The California Supreme Court is reviewing a lower court’s decision to embrace a novel theory of product liability. In Gilead Tenofovir Cases, Gilead Sciences v. Superior Court of the City and County of San Francisco, the trial court imposed, and the California Court of Appeal affirmed, a new duty to innovate on manufacturers. It found that even if a product is not defective or unreasonably dangerous, a company can be held liable if it was researching and developing another product that it “knew” was “safer” and did not release that product fast enough. While the case arose in mass tort litigation in San Francisco, unless overturned, its impact will be felt statewide.
Prescription drugs already are regulated by the Food and Drug Administration, whose multiple trials and approval processes can be barriers to innovation. It’s unclear how this new “duty-to-go-to-market” would complicate or interact with existing FDA approval processes. The Wall Street Journal has also pointed out that this theory could be used against any manufacturer, not just those that make prescription drugs: “Software, phone, car and medical-device manufacturers — the universe of potential defendants is endless.”
Benzene Litigation
It should come as no surprise that when plaintiffs’ lawyers went searching for a favorable jurisdiction to file a new wave of junk science litigation, they looked no further than California. In 2024, they filed a series of lawsuits in California federal court against Walgreens, Kenvue and Johnson & Johnson alleging that their acne products contain unhealthy amounts of benzene and that the companies failed to warn consumers of these dangers in the products’ labels.
The lawsuits came almost immediately after Valisure, a private lab, submitted a citizen’s petition to the FDA requesting an immediate recall of benzoyl peroxide (BPO) products following its detection of “high levels of benzene, a known human carcinogen, in many specific batches of BPO products…”
What follows should raise eyebrows for anyone considering the credibility of this litigation. The petition goes on to say, “the current evidence suggests that on-market BPO products could produce substantial amounts of benzene when stored at above-ambient temperatures, specifically 37°C (98.6°F), 50°C (122°F) and 70°C (158°F),” temperatures well above those found in a consumer’s home or storage space.
In March 2025, the FDA responded to Valisure’s petition and stated that, contrary to Valisure’s reporting, “more than 90% of tested products had undetectable or extremely low levels of benzene.”
“FDA has continued to raise concern that use of unvalidated testing methods by third-party laboratories can produce inaccurate results leading to consumer confusion.”
–— FDA in response to Valisure’s citizen’s petition
Following the FDA’s response, the plaintiffs’ lawyers voluntarily dismissed the lawsuits.
CIPA
Abusive litigation targeting local small businesses under the California Invasion of Privacy Act (CIPA) is thriving in courts in Los Angeles.
Enacted in the 1970s, CIPA is designed to protect consumers from unlawful recording, eavesdropping, or any other infiltration of their communications with others, including businesses. With the rise of online business platforms and the use of data saving and sharing technology, plaintiffs’ lawyers are now using the statute to pursue modern privacy invasion claims. Specifically, the lawsuits claim that companies violate CIPA when they use data tracking pixels (cookies) and send them to companies like Facebook to produce targeted ads. The law provides for statutory damages of $5,000 per violation, even if plaintiffs do not suffer any actual harm, making it an attractive tool for the plaintiffs’ bar.
Unlike the California Consumer Privacy Act (CCPA), CIPA applies to any business that maintains a website regardless of size or revenue. This places Los Angeles small businesses directly in the crosshairs. CCPA only applies to businesses that generate $25 million in annual revenue or that maintain data for over 50,000 consumers.
PAGA
Enacted in 2004, California’s Private Attorneys General Act (PAGA) has become known as the “Sue Your Boss” law. While its initial purpose was to protect workers, it has done little to help them. The plaintiffs’ bar has been the true beneficiary.
In 2024, a total of 9,448 PAGA notices were filed — an increase from 7,826 in 2023. Remarkably, nearly 4,000 more PAGA cases were filed in California alone than claims brought under the federal counterpart, the Fair Labor Standards Act (FLSA), across the entire country. Filings in 2025 continue the upward trend, with 7,987 PAGA notices filed between January 1 and November 5.
In July 2024, Governor Gavin Newsom signed two pieces of legislation aimed at addressing some of the problems around PAGA — A.B. 2288, authored by Assembly Member Ash Kalra, and S.B. 92, authored by Senator Tom Umberg. In the month immediately following enactment of the reforms, filings increased exponentially; however, filing activity decreased each month for the remainder of 2024, so there is hope that litigation abuse may stabilize moving forward.
Pepsi and HBO are among the many businesses facing new PAGA lawsuits in Los Angeles County in 2025.
Circumventing Arbitration Clauses
Los Angeles judges have been hesitant to apply agreements to arbitrate disputes in employment contracts and have permitted plaintiffs’ lawyers to file PAGA claims in court. On multiple occasions, Los Angeles judges have found companies’ arbitration agreements one-sided and unconscionable, and thus, unenforceable.
Unfortunately, California’s Second District Court of Appeal has upheld these liability-expanding decisions.
Lemon Law
Los Angeles courts are flooded with lawsuits filed under California’s Song-Beverly Consumer Warranty Act, known as the California lemon law. In 2024, attorneys filed more than 25,000 lemon law cases in California, a notable increase from the 22,000 filed in 2023.
A handful of law firms have established a niche market using the lemon law to target manufacturers. This is particularly a problem in Los Angeles County, where judges reported 700 to 800 lemon law-related cases on their individual dockets in recent years.
Prop-65
Proposition 65, a well-intentioned law enacted in 1986, has become one of the plaintiffs’ bar’s favorite tools to exploit. Baseless Prop-65 litigation unjustly burdens companies that do business in California.
A troublesome part of the law allows private citizens, advocacy groups, and attorneys to sue on behalf of the state and collect a portion of the monetary penalties and settlements, creating an incentive for the plaintiffs’ bar to pursue these types of lawsuits. Law firms identify serial plaintiffs who are willing to file multiple lawsuits despite not suffering any injuries or harm.
Each year, plaintiffs’ lawyers send thousands of notices to companies threatening Prop-65 lawsuits and demanding a settlement. As of November 12, 2025, this year’s out-of-court Prop-65 settlements totaled more than $43.7 million in response to 1,204 notices of violation, with a total of 4,549 60-day notices filed. This partial-year data represents a nearly 60% increase in the dollar amount of out-of-court settlements when compared with 2024’s totals, which saw 1,082 settlements amounting to $26.7 million. In total, 5,398 60-day notices were filed in 2024 — a more than 30% increase when compared with 2023.
Nearly 90% of funds from out-of-court settlements go to attorneys’ fees and costs — more than $38 million pocketed this year already by California trial lawyers. Total annual payouts in Prop-65 out-of-court settlements have increased more than 350% since 2020 when payouts totaled a comparatively miniscule $9.3 million.
Prop-65 Serial Plaintiffs
Food and beverage companies are among the prime targets for Prop-65 litigation. This includes allegations that products contain traces of heavy metals, such as lead, cadmium, and arsenic. The key product categories for notices relating to heavy metals include seafood products, spices, and protein supplements. Los Angeles courts have been a preferred venue for this litigation.
This year, the Consumer Advocacy Group, a well-known serial plaintiff, filed several Prop-65 claims against food and beverage companies, as well as a grocery store chain, in Los Angeles County.
This summer, the Initiative for Safer Cosmetics filed several lawsuits in Los Angeles alleging that 30 cosmetic companies failed to include Prop-65 warnings on dozens of products indicating the presence of diethanolamine, which state officials have listed as a carcinogen.
The serial plaintiffs’ filings summarized in the accompanying chart have accounted for more than 75% of out-of-court settlements and roughly 70% of out-of-court settlement dollars paid out in 2025 at the time of publication. CalSafe Research Center Inc. alone received almost 45% of the total settlements.
The money companies spend on compliance and litigation unnecessarily drives up the cost of goods for California consumers. It also harms small businesses that do not have the in-house expertise or means to evaluate the need for mandated warnings or handle litigation.
Environmental Litigation
Environmental litigation has been an active area of business for the trial bar in recent years, especially in California. From climate change litigation to cases alleging PFAS contamination, plaintiffs’ lawyers have sought to regulate industries through litigation while simultaneously lining their own pockets.
Plastics
Now, plaintiffs’ lawyers are partnering with local and state governments, NGOs and environmental activists to target corporations they allege are responsible for the “plastics pollution crisis.”
Los Angeles is among the local governments pursuing plastics litigation. In late 2024, Los Angeles County filed a lawsuit against PepsiCo and others, alleging that the companies manufactured and sold single-use plastic bottles that were not as recyclable as advertised and that often ended up as litter on county sidewalks, streets, beaches, parks, waterways, and other property.
The defendants sought to remove the case to federal court, but the plaintiffs successfully secured a remand to state court in early 2025.
Another plastics case in Los Angeles involves Last Beach Cleanup, a non-profit organization that promotes recycling efforts and sustainable business practices. In 2022, the group filed suit against a grocery chain over its use of plastic grocery bags. The complaint was amended several times to include multiple pollution-related allegations against the chain. After a trial was scheduled in Los Angeles County Superior Court for mid-2026, the parties settled.
California, a perennial Judicial Hellhole®, has appeared on the list almost every year since its inception. While little has improved across the state, this year, lawsuit abuse and judicial bias in Los Angeles have set it apart, propelling the jurisdiction to the very top of the list.
Los Angeles was the site of a billion-dollar talc verdict awarded to the estate of an 88-year-old plaintiff and an eye-popping multi-million-dollar award in a spilled tea case. This summer, RICO filings brought to light extensive alleged fraud in Los Angeles courts. The jurisdiction also continues to serve as a breeding ground for abusive lawsuits under the Americans with Disabilities Act and Proposition 65 claims, as well as privacy lawsuits that target small businesses. Courts have allowed novel theories of product and environmental liability to move forward, and lemon law cases routinely deliver windfall recoveries to plaintiffs’ attorneys.
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