People usually think it's a good thing to be "on a roll." But that is not always the case. We have defended client depositions where there was nothing worse than a witness on a roll, especially if that was a roll of Yeses ("Q: You have worked at the company since 2002, right? A: Yes. Q: And you obtained a degree in biochemistry from Rollins College, right? A: Yes. Q: And you think puppies are adorable, don't you? A: Yes. Q: And your company has a responsibility to warn of all known risks, right? A: Yes. Q: And your IFU omits a number of key risks, doesn't it? A: Yes. Q: And don't you hate it when people talk during movies? A: Yes. Q: And the court ought to direct a verdict against your company, right? A: Yes. Q: And would it be fair to say that this is a splendid case for punitive damages? A: Yes. Q: And don't you agree that an Audemars Piguet Royal Oak watch would look great on my wrist, especially if that wrist was wrapped around the wheel of a Maserati Quattroporte? A: Yes." Etc.)
Sometimes courts can get on a bad roll, too. When a court is determined to deny a defense motion to dismiss claims, it will find a way to tube every argument in sight, even those oozing merit. That's what happened in Hwang v. OHSO Clean, Inc., 2013 WL 1632697 (N.D. Cal. April 16, 2013). In Hwang, the plaintiff brought a purported class action on behalf of a nationwide class of consumers who purchased the defendants’ sanitizing products. The issue was whether the labels on the cleaners overstated the efficacy of the products – by saying, for example, that the cleaners “kill 99.9% of the harmful germs that can make you sick.” The legal claims sounded in various theories, including: 1) breach of express warranty; 2) deceit; 3) concealment; (4) False Advertising Law (“FAL”); 5) California's notorious Unfair Competition Law (“UCL”); 5) Consumers Legal Remedies Act ("CLRA"); and 6) the federal Magnuson Moss Act.