Dan is highly regarded for his defense of product liability cases involving consumer products and deep knowledge of California’s consumer protection regulations and laws. He skillfully handles litigation, including class actions, around California’s Unfair Competition Law, Consumer Legal Remedies Act, and Safe Drinking Water and Toxic Enforcement Act (Prop 65), among others. He has served as a defense counsel in over 3,000 product liability cases involving pharmaceuticals, medical devices, food, cosmetics, over-the-counter drugs, and food and products marketed as containing natural ingredients. His client roster includes a wide range of life sciences and retail and consumer products companies.
Specific to consumer class action lawsuits, Dan has successfully defended clients in class actions alleging false or misleading labeling or advertising of foods, cosmetics, over-the-counter drugs, dietary supplements, and homeopathic products. These claims have involved probiotics, “natural” ingredients, “clinically-proven” results, lack of efficacy, lack of substantiation, and failure to disclose. Representative statutes addressed include:
- California’s Unfair Competition Law (Business & Professions Code § 17200) and similar unfair competition statutes in every state and the District of Columbia based on allegations of unfair competition or false advertising actions.
- California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65)
- Deceptive, False, and Misleading Advertising laws, such as California’s Business & Professions Code § 17500, and similar statutes proscribing advertising that contains false, deceptive, or misleading statements related to the sale of goods.
- Experience in other California state regulations and laws including Made in the USA claims, slack-fill claims, the California Automatic Renewal Law and ADA website access claims.
- Consumer Legal Remedies Act (CLRA), California Civil Code § 1750, which establishes a remedy for unfair methods of competition and unfair or deceptive acts in the sale of goods to a consumer. CLRA violations commonly alleged against food and drug companies include “representing goods that have characteristics, ingredients, benefits or qualities that they do not have,” and “representing that goods are of a particular standard, quality, or grade.”
- Breach of Express and Implied Warranties under state and federal laws, including the Magnuson-Moss Act.
His trial work also encompasses defense of pharmaceuticals & medical devices, sports equipment, commercial litigation and privacy and data security. Dan advises international companies in the pharmaceutical, medical device, food, over-the-counter drugs, homeopathic remedies, and dietary supplement, and sports industries. He has served as defense counsel in over 3,000 product liability cases and represented companies in both state and federal courts in California and the US. Dan also maintains a robust complex commercial litigation practice, in addition to counseling clients on trade secrets and misappropriation cases and breach of fiduciary duty disputes in state courts nationwide.
Dan routinely advises clients on regulatory matters as well as the selection of local counsel and lead trial attorneys. His commercial litigation practice has covered a wide spectrum of issues and included representation of several international companies based in Italy, Mexico, India, United Kingdom, Korea, Japan, Taiwan, Germany, Australia, and Switzerland.
Dan is highly regarded for his defense of product liability cases involving consumer products and deep knowledge of California’s consumer protection regulations and laws. He skillfully handles litigation, including class actions, around California’s Unfair Competition Law, Consumer Legal Remedies Act, and Safe Drinking Water and Toxic Enforcement Act (Prop 65), among others. He has served as a defense counsel in over 3,000 product liability cases involving pharmaceuticals, medical devices, food, cosmetics, over-the-counter drugs, and food and products marketed as containing natural ingredients. His client roster includes a wide range of life sciences and retail and consumer products companies.
Experience
- Successfully excluded expert witness report under Rule 702 involving alleged damages in a false advertising case, which resulted in denial of class certification in the Central District of California on behalf of a multinational restaurant chain.
- Successfully resolved a wrongful death action for the US subsidiary of a German-based manufacturer of cleaning equipment. We were brought in on the eve of trial and negotiated a favorable settlement for the client.
- Defended Similasan Corp. in a putative class action alleging false and misleading statements on labels of Children’s ear homeopathic products, brought under California (UCL, FAL, CLRA) consumer protection laws. Settled on terms very favorable to client before class certification briefed.
- Obtained a summary judgment in the US District Court for the Northern District of California in a medical device action.
- Successfully represented in Arbitration a supplier of component parts for a consumer product in breach of contract and breach of warranty claims arising from a nationwide CPSC recall.
- Represented several manufacturers of private label over-the-counter (OTC) consumer products in multiple “slack fill” cases and government investigations.
- Obtained defense verdict in a state superior court action alleging product liability and breach of contract claims.
- Successfully obtained summary judgment in the US District Court for the Northern District of California in a business defamation claim that led to new management obtaining control of a non-US based software company.
- Assisted multiple manufacturers, retailers and distributors in the food and beverage industries in responding to a CLRA demand letter alleging false and misleading statements on labels of food products brought under California (UCL, FAL, CLRA) consumer protection laws. Settled favorably before lawsuit filed.
- Defended Pinnacle Food Group in a putative class action alleging false and misleading statements on labels of food products brought under Vermont consumer protection laws. Settled on terms very favorable to client before class certification briefed.
- Defended a national retail pharmacy chain which manufactures, retails and distributes a private label of homeopathic products in a putative class action alleging false and misleading statements on labels of private label homeopathic products, brought under California (UCL, FAL, CLRA) consumer protection laws. Settled on terms very favorable to client before class certification briefed.
- Represented a lumber supplier in a class action alleging false “Made in USA” labeling of consumer products. We secured a favorable settlement involving no contribution by our client to the claim fund.
- Successfully defended a fuel distribution company against California Proposition 65 claims involving the alleged distribution of leaded aviation fuel gas from private airports.
- Represented a supplier of do-it-yourself sewing, quilting, home decorating and crafts products in negotiations with the State of California regulatory agencies to limit fines and penalties in violation of the California Air Resources Board, and also Proposition 65.
- Successfully represented adidas America Inc. in arguing against certification of a class action suit alleging a defect in one of the company’s popular running shoes in the Southern District of New York.
- Defended a consumer goods corporation in a putative class action alleging false and misleading statements on labels of various home care products, brought under New York (GBL §§ 349, 350) consumer protection laws.
- Represented a New York manufacturer of consumer healthcare products under California Proposition 65 allegations, obtaining a favorable settlement for our client.
- Successfully resolved California Unfair Competition claims (17200) against manufacturers of dietary supplements, foods, cosmetics, and homeopathic medicine products.
- Favorably settled purported three purported state class actions alleging product liability and contract claims in state court.
- Successfully resolved a putative Illinois class action alleging violations of Illinois unfair trade practices act re use of advertising term “Natural” re personal care products.
- Serving as national coordinating counsel for a Fortune 500 multinational company that is a global supplier of silicone and silicone-based technology. In this role we oversee litigation pertaining to a medicinal remedy found in many dietary supplements. We also serve as this client’s regional counsel in litigation related to silicone breasts implants and small joint orthopedics.
- Successfully defended a California grocery retailer in a state court lawsuit and on appeal. The lawsuit was filed by three Union for Food and Commercial Worker-employed plaintiffs alleging that the retailer violated the Rosenthal Roberti Item Pricing Act.
- Represented a publicly traded distributor of personal care products, in California regarding Prop 65 (Safe Drinking Water and Toxic Enforcement Act) cases and Consumer Legal Remedies Act (CLRA) claims. All cases have been resolved through favorable settlements approved by the court.
- Obtained complete dismissal of product liability, RICO action relating to medical devices through a motion to dismiss in the Southern District of Ohio.
- Successfully represented a semiconductor equipment supplier against allegations of breach of contract, lack of good faith and fair dealing, fraud, and unfair competition. The plaintiff had sought approximately $200 million in damages. The defense verdict was selected as one of the Top Defense Verdicts of The Year by the San Francisco Daily Journal and was upheld on appeal.
- Successfully obtained a pre-judgment attachment in the amount of $45 million in breach of contract action in the US District Court for the Northern District of California on behalf of a non-US based technology company.
- Favorably settled action in the US District Court for the Northern District of California alleging breach of earnout provision of stock purchase agreement after preliminary injunction hearing.
viewpoints
The AI Search Engine Doctor Is Always In: What Are the Regulatory and Legal Implications?
March 14, 2023 | Blog | By Benjamin Zegarelli, Daniel Herling
The information age in which we live is reaching a new milestone with the development and ready access to conversational artificial intelligence based on advanced transformer algorithms, or AI chatbots, including their upcoming integration into multiple Internet search engines. This development creates exciting opportunities and potentially terrifying risks in the health care space. Inevitably, people will ask AI chatbot-enabled search engines for information on diseases, conditions, medicines, or medical devices and use the response in some way to make certain medical decisions. But what happens when the AI chatbot’s response is inaccurate or even provides advice that may lead to harm if the user follows it? Can AI chatbots be regulated by the U.S. Food and Drug Administration (FDA)? What are the liability implications if a user is harmed? We provide some initial thoughts on such legal issues in this post.
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Courts Being Used to Challenge Efficacy of Recalls
November 23, 2020 | Blog | By Daniel Herling
There’s a new class action trend consumer product companies need to be aware of that is not only causing additional stress when faced with a recall but also increased expense and adverse publicity.
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FDA Places Two Food Orders on Restaurants’ Tables
April 8, 2020 | Blog | By Daniel Herling
The food industry has been upended by the recent COVID-19 pandemic – restaurants and bars are scrambling to adjust to a new way of life after governors across America issued statewide “stay at home” orders in response to the coronavirus pandemic. Restaurants are now only permitted to serve take-out or drive-thru orders, and some restaurants have transformed themselves into neighborhood markets, or bodegas, selling food items not labeled for retail.
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Federal Government Provides Liability Immunity to Manufacturers and Distributors in Fight Against COVID-19: What Companies Need to Know
April 7, 2020 | Blog | By Brian Dunphy, Daniel Herling, Alain Mathieu
Over the past several weeks, the Firm has received a number inquiries from clients (on both coasts) who are interested in manufacturing or selling test kits, respirators, masks, and other PPE in response to the COVID-19 pandemic, with respect to potential liability risks associated with such activities.
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Do You Want Fries With That?
October 11, 2019 | Blog | By Daniel Herling
The old joke of “what do Philosophy majors ask at their first job?” takes on a new meaning in the world of Prop 65. On October 7, 2019, the California Chamber of Commerce filed a lawsuit in Federal court for the Eastern District of California (Complaint) challenging Proposition 65 warnings for food that contain the chemical Acrylamide.
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Highlights of the FTC’s Workshop on Made in the USA Claims
October 3, 2019 | Blog | By Daniel Herling, Margaret Jewett
In Fleetwood Mac’s magnum opus, “Landslide,” Stevie Nicks croons, “Well, I’ve been ‘fraid of changin’ ‘cause I’ve built my life around you.” The FTC’s recent workshop on Made in the USA claims reveals a similar hesitancy to evolve, although panel discussions may presage altered approaches to enforcement of these claims. This workshop, held on September 26, consisted mainly of three panel discussions on various aspects of this issue.
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FTC Identifies Concerns With Plaintiff’s Lawyers Advertisements Concerning Risks Associated With Pharmaceutical Drugs
September 27, 2019 | Blog | By Daniel Herling
I suspect that we’ve all had this experience. You’ve finished a long day of work, had dinner, and have cozied up on the couch with a glass of wine to watch a re-run of your favorite TV show. The show goes to commercial and all of a sudden, plastered across your screen, there is an “important consumer alert” concerning the alleged dangers of a particular prescription drug and that “if you or a loved one have been injured” to contact this law firm.
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CA Prop 65 Coffee Issues Still Brewing
September 4, 2018 | Blog | By Daniel Herling
As has been widely reported, in May 2018, a Los Angeles Superior Court judge ruled that Prop 65 warning labels are required to be placed on “ready-to-drink” coffee products. Acrylamide, a Prop 65 listed chemical that allegedly is a carcinogen, forms during the coffee roasting process.
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California Supreme Court Ends Glyphosate Debate, for the Time Being
August 20, 2018 | Blog | By Daniel Herling
One week after a San Francisco jury decided against Monsanto and awarded a plaintiff $289 million due to the alleged exposure that caused his cancer, the California Supreme Court refused to hear any further challenges by Monsanto.
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Stricter Automatic Renewal Law in California Commences July 1, 2018
June 21, 2018 | Blog | By Daniel Herling
On July 1, 2018, California’s revised Automatic Renewal Law (ARL), Cal. Bus. & Prof. Code § 17600 et seq., goes into effect.
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News & Press
Mintz is pleased to announce that 120 firm attorneys have been recognized as leaders by Best Lawyers® in the 2024 edition of The Best Lawyers in America©.
How Purging of Classes Could Cost Peloton Big
February 3, 2021
Mintz Member and Co-chair of the firm’s Product Liability Practice Daniel J. Herling was quoted in an article published by Front Office Sports on a class action lawsuit filed against Peloton claiming that the fitness brand’s mass deletion of its music library in 2019 in response to copyright allegations led to “false and misleading advertising.”
In Growing Trend, Companies Being Whipsawed by Regulators and Courts
November 19, 2020
In the third edition of Stericycle’s 2020 Recall Index, Mintz Member and Co-chair of the firm’s Product Liability Practice Daniel J. Herling authored an article examining a new wave of legal challenges facing consumer product companies related to recall programs negotiated with the U.S. Consumer Product Safety Commission.
Mintz Member and Co-chair of the Product Liability Practice Daniel J. Herling and Associate Nicole V. Ozeran co-authored a Bloomberg Law Insights article on the U.S. Food and Drug Administration (FDA)’s recent orders regarding food labeling, which are aimed at helping the food industry during the COVID-19 pandemic.
Suspicion and Threats of Increasing Legislation Loom in The Midst of Glyphosate Debate
April 13, 2018
San Francisco Litigation Member Dan Herling provides commentary in this feature article discussing California's Proposition 65, also called the Safe Drinking Water and Toxic Enforcement Act.
Best Lawyers named 85 Mintz attorneys to its 2018 list of The Best Lawyers in America. In addition, Mintz attorneys Matthew J. Gardella and Samuel M. Tony Starr were named “Lawyer of the Year” in their respective practice areas.
'Made In America' — What You Need To Know Now
August 10, 2017
Dan Herling, a Member in the San Francisco office, and Richard Maidman, an associate in the Boston office, authored a Law360 article discussing some of the important issues concerning “Made in America” labeling for U.S. companies to consider.
Prop 65: If it’s on the list, you mustn’t resist
March 24, 2017
Daniel Herling authored this column concerning the Safe Drinking Water and Toxic Enforcement Act, which requires businesses to provide warning to Californians about significant exposure to chemicals that cause cancer, birth defects, or other reproductive harm.
States step up when feds step down
February 23, 2017
Will FDA Adverse Event Data Release Mean More Lawsuits?
January 18, 2017
In this Law360 feature article, Joanne Hawana and Dan Herling discuss the release of data regarding adverse events received by the FDA’s Center for Food Safety and Applied Nutrition, whether the timing of the release matters, and what greater AER transparency means for litigations risks.
‘Tis the season to give someone a basket of processed meats
December 22, 2016
Dan Herling, a Mintz Member, authored an article in the Daily Journal on the distribution of processed meats during the holiday season.
Pop goes the regulation
November 17, 2016
Dan Herling is a Member of the San Francisco office whose practice is focused on product liability issues relating to consumer products. He recently authored this column for the California-based Daily Journal on regulation.
Less pepper than before? No slack for more slack-fill
October 28, 2016
Dan Herling, a Litigation Member in the Mintz San Francisco office, authored an article in the Daily Journal on regulatory crack-down on product “slack-fill”, which is the empty space in a package filled to less than its total capacity.
Dole Buyers Get Mixed Win In 9th Circ. Natural Label Ruling
October 3, 2016
Dan Herling, a Litigation Member, was quoted in this Law360 article on the mixed results derived from the Ninth Circuit’s decision in favor of the consumers bringing a major false advertising complaint against Dole for falsely labeling their frozen berry products as “all-natural.”
Mintz Achieves Denial of Class Certification for adidas America Inc.
September 09, 2016
Mintz attorneys successfully represented adidas America Inc. in arguing against certification of a class action suit involving one of the company’s popular running shoes. The U.S. District Judge ruled the plaintiff did not present sufficient evidence that adidas’ Springblade shoes were defective.
Dan Herling, a Litigation Member in the Mintz San Francisco office, is quoted in this STAT News piece on the California Supreme Court’s ruling that out-of-state users of the Plavix blood thinner claiming harm could sue the drug-maker, Bristol-Myers Squibb.
Plavix Ruling Cements Calif. As Center For Mass Torts
August 30, 2016
Dan Herling, a Litigation Member in the Mintz San Francisco office, is quoted in this Law360 article about the California Supreme Court’s ruling in favor of the out-of-state plaintiffs in their case against Bristol-Myers Squibb Co. and their blood-thinner drug, Plavix.
Lawsuits challenge FDA e-cigarette rules
August 22, 2016
Member Dan Herling authored an article in the Daily Journal discussing the response to the FDA’s rule regulating all tobacco products, including e-cigarettes, going into effect. In the face of new regulations, several lawsuits have been filed against the FDA across the U.S.
Best Lawyers named 73 Mintz attorneys to its 2017 list of The Best Lawyers in America. Mintz attorneys selected for inclusion in this year’s list span 44 practice areas.
Food Safety Regulations Will Affect California Tort Law
July 13, 2016
Dan Herling, a Litigation Member in the Mintz San Francisco office, and FDA attorney Joanne Hawana authored this San Francisco Daily Journal article covering the predicted impact of the FDA's food safety regulations on California tort law.
Mintz Litigation Member Dan Herling authored this Bloomberg BNA Daily Report for Executives article discussing the Senate’s favorable vote on a controversial GMO Labeling Bill, which would move it forward to the House of Representatives.
Symantec Ruling Raises Bar For Consumer Fraud Claims
June 22, 2016
Dan Herling, a Mintz Litigation Member, is quoted in this Law360 column on the Ninth Circuit’s ruling in a fraud case brought against Symantec Corp. for allegedly violating California’s unfair competition law.
Events & Speaking
Speaker
Speaker
Sep
16
2019
Product Responsibility Summit 2019
Promotional Products Association International
Alexandria, Virginia
Speaker
Speaker
May
4
2018
Speaker
Apr
4
2017
What Young Lawyers Need to Know When Looking For an Expert Witness
ABA Young Lawyers Subcommittee, Products Liability Committee
Speaker
Oct
25
2016
Panelist
Panelist
Apr
21
2016
The Fine Print Matters – Boilerplate Contract Clauses Through the Litigator’s Lens
Association of Corporate Counsel - San Diego Chapter
San Diego, CA
Speaker
Sep
30
2015
PPAI Product Responsibility Summit
Promotional Products Association International
Hyatt Regency Bethesda, MD
Speaker
Read less
Dec
3
2013
California Green Chemistry: What Retailers should Expect and Prepare for in 2014
Mintz Levin
Webinar
Dan is highly regarded for his defense of product liability cases involving consumer products and deep knowledge of California’s consumer protection regulations and laws. He skillfully handles litigation, including class actions, around California’s Unfair Competition Law, Consumer Legal Remedies Act, and Safe Drinking Water and Toxic Enforcement Act (Prop 65), among others. He has served as a defense counsel in over 3,000 product liability cases involving pharmaceuticals, medical devices, food, cosmetics, over-the-counter drugs, and food and products marketed as containing natural ingredients. His client roster includes a wide range of life sciences and retail and consumer products companies.
Recognition & Awards
Best Lawyers in America: Product Liability Litigation (2013 – 2024); Commercial Litigation (2021-2024); Mass Tort Litigation/Class Actions - Defendants (2021-2022, 2024)
Best Lawyers in America: San Francisco Mass Tort Litigation / Class Actions - Defendants, Lawyer of the Year (2021, 2024)
Litigation and Product Liability Guide: Leading Practitioners in Product Liability (2016)
Expert Guides: Product Liability Litigation (2014)
Northern California Super Lawyers: Class Action (2004 – 2020)
Lead trial counsel in breach of contract/indemnity action case selected as a “Top 10 Defense Verdict” by The Daily Journal (2010)
Martindale-Hubbell AV Preeminent
Dan is highly regarded for his defense of product liability cases involving consumer products and deep knowledge of California’s consumer protection regulations and laws. He skillfully handles litigation, including class actions, around California’s Unfair Competition Law, Consumer Legal Remedies Act, and Safe Drinking Water and Toxic Enforcement Act (Prop 65), among others. He has served as a defense counsel in over 3,000 product liability cases involving pharmaceuticals, medical devices, food, cosmetics, over-the-counter drugs, and food and products marketed as containing natural ingredients. His client roster includes a wide range of life sciences and retail and consumer products companies.
Involvement
- Vice Chair, Products Liability Section, Federation of Defense & Corporate Counsel
- Fellow, American Bar Foundation
- Member, Federation of Defense and Corporate Counsel
- Arbitrator, San Francisco Municipal and Superior Courts
- Member, University of Dayton School of Law Advisory Counsel
- Board Member, San Francisco Legal Aid At Work
- Member, San Francisco Chamber of Commerce Leadership Program Alumni Council
- Part Board Member, San Francisco Center for Economic Involvement
- Past Delegate, Northern California KOTRA APEC Investment Mart in Seoul, Korea
- Past Delegate, San Francisco Mayor’s Trade Commission to Mexico
- Past Board Member, San Francisco Chamber of Commerce
- Past Chair, International Committee, San Francisco Chamber of Commerce Board of Directors
- Past Board of Editors, Law Journal Newsletter, Products Liability Law and Strategy
- Past Board Member, San Francisco School Volunteers
Recent Insights
Mintz is pleased to announce that 120 firm attorneys have been recognized as leaders by Best Lawyers® in the 2024 edition of The Best Lawyers in America©.
