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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 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

  • Best Lawyers in America: Product Liability Litigation (2012 – 2020)
  • Litigation and Product Liability Guide: Leading Practitioners in Product Liability (2016)
  • Expert Guides: Product Liability Litigation (2014)
  • Northern California Super Lawyers: Class Action (2004 – 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

  • Vice Chair, Products Liability Section, Federation of Defense & Corporate Counsel
  • 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

Viewpoints

Prop 65 Preliminary Injunction and "Fake News"

March 5, 2018 | Blog | By Daniel Herling

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.
Read more
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.
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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. 
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California's Prop 65: More Form Over Substance

July 31, 2017 | Blog | By Daniel Herling

California’s Safe Drinking Water & Toxic Enforcement Act of 1986 (affectionately known as “Proposition 65”) has long been the subject of discussion, both pro and con. Much of the conversation is on various issues surrounding the enforcement of Proposition 65.
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The Turn of the “Made in America” Claim Enforcement

July 24, 2017 | Blog | By Daniel Herling

It has recently been reported that President Donald Trump is looking for ways to defend American-made products by certifying legitimate U.S. goods and aggressively going after imported products unfairly sporting the "Made in America" label, the White House said on July 18, 2017.
Read more

Stuck in the Middle with the FTC

October 19, 2016 | Blog | By Daniel Herling

Legal actions regarding “Made in the USA” claims, whether prosecuted by the Federal Trade Commission (FTC) or through various state unfair trade practices acts, often settle early in the proceedings. 
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California Prop 65: More Unintended Consequences

October 11, 2016 | Blog | By Daniel Herling

Last month, the California Office of Environmental Health Hazard Assessment (“OEHHA”) adopted new Proposition 65 warning regulations.  Much of the discussions regarding these new regulations have centered on the warning requirements that become effective, after an approximately two-year phase-in period, in August 2018.
Read more

Preemption Defense in the Ninth Circuit Is “Not Dead Yet”

February 19, 2016 | Blog | By Daniel Herling

Monty Python and the Holy Grail (1975) contained a scene where bodies of plague victims were brought out to the curb for collection via a cart whether or not they properly belonged there. One living fellow insists on not being dead by exclaiming: “I’m not dead yet.”  Unfortunately for him, his protestations go unheeded and he is placed in the cart of the dead.
Read more
The first round goes to the industry: on December 9, 2015, the Central District of California dismissed the complaint in Barber v. Nestle USA, a key bellwether case in a new wave of class action litigation related to California’s Transparency in Supply Chains Act.
Read more

Settlement Looms for "Made in USA" Jeans Suit

December 9, 2015 | Blog | By Daniel Herling

A courtroom battle concerning a manufacturer’s alleged false marketing of allegedly foreign-produced products as “Made in USA” is potentially nearing a resolution. 
Read more

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.
Press Release Thumbnail
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.  

California court hangs out a welcome sign: Drug makers can be sued here

August 30, 2016 | https://www.statnews.com/pharmalot/2016/08/30/california-lawsuit-drug-makers-jurisdiction/ STAT News

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 | http://www.law360.com/articles/834257/plavix-ruling-cements-calif-as-center-for-mass-torts Law360

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
Sep
16
2019

Product Responsibility Summit 2019

Promotional Products Association International

Alexandria, Virginia

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