Bryan A. Merryman

A large majority of Bryan Merryman’s caseload is defending companies facing class actions in a wide variety of areas, including antitrust, consumer complaints, securities, contracts, unfair competition and business torts.

One of his current class action matters — about oil companies’ responsibility for climate change — has made law on the question of state versus federal jurisdiction, and another, about the sale of prescription pet food, could do so as well.

In the first, Merryman represents Italian “supermajor” oil company Eni S.p.A. in some of the most high-profile climate change litigation in the nation. Several California cities and counties contend oil companies “for decades misled consumers about the nature of their oil production” and how their carbon emissions damage the environment, he said. County of San Mateo v. Chevron Corp., 17-CIV-03222 (San Mateo Super. Ct., filed July 17, 2017).

But before the parties could litigate the merits, the cases went “up to the [U.S.] Supreme Court twice just trying to figure out whether the cases would proceed in state or federal court,” Merryman said. In April, the high court declined to rule on the issue of whether a federal court may hear state-law claims about global environmental damage, so the litigation is back in state court.

A California federal court dismissed the antitrust class action over pet food, leading the plaintiffs to refile in Missouri, where Merryman’s client Purina is based. There, the issue is whether a federal court can retain jurisdiction after the plaintiffs amended their complaint to remove federal causes of action. The Eighth Circuit said no, which Merryman said is not how other circuit courts have ruled. Wullschleger v. Royal Canin U.S.A. Inc., 22-1796 (8th Cir., dec’d July 31, 2023).

He has petitioned the Supreme Court to hear the case. “We think it’s an important jurisdictional issue given the circuit split,” he said.

A high-profile issue that has kept Merryman very busy the last couple of years is whether baby food contains heavy metals that cause neurological damage. In late 2022, he won the dismissal of some 30 potential class actions consolidated against Gerber. In re: Gerber Products Company Heavy Metals Baby Food Litigation, 1:21-cv-00269 (E.D. Va., filed March 3, 2021).

More recently, he and counsel for other baby food companies obtained a summary judgment against an individual personal injury case in Los Angeles after he first won a ruling excluding several of the plaintiff’s experts. N.C. v. Hain Celestial Group Inc., 21STCV22822 (L.A. Super. Ct., filed Sept. 7, 2021).

“The companies are adamant that their products are safe, and to the extent there are any heavy metals in some foods they’re naturally occurring,” Merryman said.

— Don DeBenedictis