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Daniel J. Herling

Member / Co-chair, Product Liability Practice

[email protected]

+1.415.432.6103

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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.

Dan’s practice is focused on product liability issues relating to consumer products.

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.
  • 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 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.

Education

  • University of Dayton School of Law (JD)
  • University of Dayton (BS)

Experience

  • 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 a manufacturer 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 a food retailer 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 Clif Bar in a putative class action alleging false and misleading statements on food products, brought under California (UCL, FAL, CLRA) consumer protection laws. After extensive negotiations, complaint never served and dismissed for failure to prosecute case.
  • 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 Jamba Juice in a putative class action alleging false and misleading statements on labels of smoothie kits, brought under California (UCL, FAL, CLRA) consumer protection laws. Settled on terms very favorable to client before class certification briefed.
  • Defended a national retail pharmacy chain 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.
  • 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 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.
  • Successfully resolved a putative nationwide class action alleging violations of the NY and other state unfair trade practices acts regarding the use of the advertising term “Natural” in personal care products.
  • 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 2010 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. 
     

Recognition & Awards

  • Litigation and Product Liability Guide: Leading Practitioners in Product Liability (2016)
  • Expert Guides: Product Liability Litigation (2014)
  • Northern California Super Lawyers: Class Action (2004 – 2018)
  • Best Lawyers in America: Product Liability Litigation (2012 – 2019)
  • 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

Involvement

  • Fellow, American Bar Foundation
  • Member, Federation of Defense and Corporate Counsel
  • Member, Drug and Medical Device Committee of the Defense Research Institute
  • Arbitrator, San Francisco Municipal and Superior Courts
  • Member, University of Dayton School of Law Advisory Counsel
  • Delegate, Northern California KOTRA APEC Investment Mart in Seoul, Korea
  • Board Member, San Francisco Legal Aid At Work
  • Delegate, San Francisco Mayor’s Trade Commission to Mexico
  • Member, San Francisco Chamber of Commerce Leadership Program Alumni Council
  • 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

News & Press

Viewpoints

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. 
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.
On July 1, 2018, California’s revised Automatic Renewal Law (ARL), Cal. Bus. & Prof. Code § 17600 et seq., goes into effect.
Recently, a federal judge sitting in the Eastern District of California (Sacramento), for the first time, refused to require a manufacturer to place a Prop 65 warning on its product based on a finding that the requirement would violate the company’s First Amendment rights. We have been following this developing issue for some time.
Fresh off a victory in the CA primary, California Attorney General Xavier Bacerra filed suit on June 7, 2018 against Nutraceutical Corporation of Park City, Utah and Graceleigh, Inc. dba Sammy’s Milk of Newport Beach, CA, alleging violations of California’s Proposition 65 and California’s consumer protection laws.
As this space has addressed before (see here and here), the California Transparency in Supply Chain Act (Civ. Code section 1714.43), enacted in 2010, requires large retailers and manufacturers (those with worldwide sales in excess of $100 million) doing business in California to disclose on their websites.

Prop 65: GET THE LEAD OUT!

May 29, 2018| Blog

As this space has discussed on several occasions, there are many issues with California's Prop 65.
A recent Federal Court decision on the issue of whether to grant a preliminary injunction in the ongoing saga of the appropriateness of adding the pesticide Glyphosate to the CA Prop 65 list has become the grist for the "Fake News" phenomenon.
Much of the recent discussion regarding Prop 65 has been focused on the regulatory changes going into effect in August of 2018. And that makes sense since there will be significant changes to the warnings, responsibility, and labeling obligations on product websites.
With the start of college football season around the corner, attention turns to off-season shake ups in coaching staffs. One controversial change involved defensive coordinator Robert H. Shoop. 

News & Press

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.
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.
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.
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.
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.  
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.
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 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.
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.
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. 
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.
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

Speaker
May
4
2018

Legal Direct Reports (L2) Committee Meeting

Retail Industry Leaders Association

San Francisco, CA

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

2016 Retail Law Conference

Retail Litigation Center

InterContinental Buckhead Atlanta, Atlanta, GA

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