Jim is the Founding Co-Chair of Shook's Class Action Practice Group and the Co-Chair of Shook's Food & Beverage Practice Group. He has twenty years of experience successfully defending class actions and multidistrict litigation throughout the country. The leader of numerous litigation teams, Jim has successfully defended more than 100 consumer and third-party payor class actions alleging false advertising, unfair business practices, consumer fraud, product liability and RICO. Jim has tried class actions, successfully argued class action appeals, and resolved purported class actions early and efficiently. He teaches and lectures on class actions and is widely recognized for his experience defending class actions as well as legal and trial strategy.
After interviewing general counsel and legal decision-makers, BTI Consulting Group named Jim a "2016 and 2017 Client Service All-Star," one of approximately 300 attorneys nationwide to receive the honor. BTI’s Client Service All-Stars are leaders in their field who receive this designation because corporate counsel singled them out for "outperforming all other attorneys" in client service. Jim has represented ConAgra Foods, Inc., Goya Foods, Inc., The J.M. Smucker Company, Pinnacle Foods Group LLC, Source Naturals, Inc., Unilever United States, Inc., Allergan, Inc., Aventis Pharmaceuticals Inc., Bayer Corporation, Bausch & Lomb Inc., Delta Air Lines, Inc., GlaxoSmithKline LLC, Lindsay Manufacturing Co., Lorillard Tobacco Company, Inc., Nissan North America, Inc., Pfizer Inc., Philip Morris USA Inc., 7-Eleven, Inc., QuikTrip Corp., Sanofi Synthelabo Inc., and Simon & Schuster Inc., among others, in class action litigation.
As first chair trial counsel, Jim successfully defended what may be the first Rule 23(c)(4) issue class action jury trial involving state consumer fraud allegations in the country, in which the jury returned a unanimous defense verdict. Wilson v. Ampride, Inc. (In re Motor Fuel Temperature Sales Practices Litig.), 2012 U.S. Dist. LEXIS 145976 (D. Kan. Sept. 24, 2012). He served as trial counsel for Lorillard Tobacco Company in a statewide class action trial in which the jury rejected plaintiffs' medical monitoring claim, in one of the first medical monitoring cases to go to trial. Scott v. American Tobacco Co., 949 So.2d 1266 (La. Ct. App. 2007).
Jim enjoys looking for creative and cost-effective ways to resolve class action litigation. Recently, he persuaded plaintiffs’ counsel to dismiss several purported class actions alleging improper "Natural" and greenwashing claims, based on an analysis of FTC Green Guides. His clients appreciate his creative and common sense approach to problem solving. Jim’s philosophy is to focus on the early resolution of matters before trial, to minimize the cost and business disruption to his clients.
Jim is a former chair of Shook's Diversity & Inclusion Committee and he is a past recipient of Shook's Mosaic Award for his commitment to diversity in the legal profession. He is also very involved in pro bono efforts, having led a team in securing a significant civil rights victory for a class of 11,000 special needs foster and adopted children. Senior U.S. District Judge Scott O. Wright observed that the suit was among the most important cases he has addressed in his 27-year career on the bench. Utilizing an attorneys' fee award donated by the firm, Jim then established "Lawyers for Kids," a charitable foundation that has contributed nearly $500,000 to foster and adopted children and their parents.
Missouri Lawyers Media recognized Jim as a 2012 Legal Champion for his role in the successful defense of fuel retailers in the nationwide "Hot Fuel" litigation. Jim's litigation accomplishments have been recognized in The Best Lawyers in America, Missouri & Kansas Super Lawyers and The Best Lawyers in Kansas City. He resides in Kansas City with his wife, two kids and their fun and energetic dogs, Rita and Rocco.
Food & Beverage Class Actions, “A Practitioner’s Guide to Class Actions, Third Edition,” American Bar Association, November 2021 (with Melina Manetti, Amir Nassihi and Kevin Underhill).
Bush v. WellPet, LLC, 2021 WL 1408118 (D. Mass.). The court granted the defendant’s motion to dismiss a purported nationwide class action, finding the phrase “grain free” was not misleading to reasonable consumers merely because laboratory testing found some undisclosed amount of gluten in the products.
Wingate v. Barkman Honey, LLC, 2021 WL 50987 (D. Kan.). The District Court granted summary judgment in a purported class action in which the plaintiff alleged that the defendant deceived consumers into thinking its honey was “raw.” The court found that the plaintiff had failed to produce any admissible evidence to support his claims.
Schulte v. Unilever United States, Inc. (E.D. Mo. 2020) | District court granted defendants’ motion to dismiss a purported nationwide class action with prejudice, saying plaintiff’s “pink tax” claim as to the pricing of antiperspirant was “not amenable to judicial resolution. Her remedy lies with legislation not litigation.” The Eighth Circuit affirmed the decision in April 2021.
Ehlers v. Ben & Jerry’s Homemade Inc., 2020 WL 2218858 (D. Vt., May 2020). A consumer brought a nationwide class action alleging that Ben & Jerry’s deceived consumers into thinking it sourced its milk from “happy cows” in its “Caring Dairy” Program only, when it was alleged most of the milk comes from industrial farms. The district court granted our motion to dismiss, finding that the plaintiff did not plausibly allege that reasonable consumers would make their purchasing decisions exclusively based on a single phrase in a webpage heading that a consumer would need to access before his or her purchasing decision.
Korte v. Pinnacle Foods, 2019 WL 4305464 (S.D. Ill., Sept. 11, 2019). District court denied class certification on the grounds of lack of adequacy, finding the “record suggests that no other potential class members share [the plaintiff’s] . . . idiosyncratic claim.”
Hackman v. Goya Foods, Inc., No. 2018 WL 6419943 (D.C. Super. Ct., Oct. 2, 2018, reconsideration denied, Dec. 3, 2018). Court dismissed plaintiff's private attorney general complaint, finding the complaint failed to allege facts establishing actual harm.
Gustavsen v. Alcon Laboratories, Inc., 2018 WL 4057381 (1st Cir., Aug. 27, 2018). Appeals court affirmed dismissal by district court, holding that purported multistate class action was preempted by federal law.
Robinson v. Unilever United States, Inc., 2018 WL 6136139 (C.D. Cal., 2018). The district court granted our motion to dismiss “Made with 100% Natural” ingredients claims.
Sabo v. Wellpet, 282 F. Supp. 3d 1040 (N.D. Ill. 2017). District court dismissed plaintiff's proposed nationwide class action because plaintiff failed to plausibly allege actual damages.
Gustavsen v. Alcon Laboratories, Inc., 272 F. Supp. 3d 241 (D. Mass. 2017). Court dismissed purported multistate class action based upon federal preemption.
Sabo v. Wellpet, 2017 WL 1427057 (N.D. Ill. Apr. 21, 2017). District court granted defendant's motion to dismiss putative nationwide class action based on plaintiff's failure to plead actual injury under the Illinois Consumer Fraud and Deceptive Businesses Act.
Eike v. Allergan, 850 F. 3d 315 (7th Cir. 2017). Appeals court vacated the grant of class certification for failure to plead an actionable injury and remanded to the district court with directions to dismiss the case with prejudice.
Pepper v. Boulder Brands, Inc., No. 16-06512 (S.D.N.Y. Oct. 27, 2016). Plaintiff voluntarily dismissed a slack-fill class action complaint after we filed a motion to dismiss.
Thornton v. Pinnacle Foods Group LLC, 2016 WL 5793193 (E.D. Mo. Sept. 30, 2016). Court granted motion to stay a "Nothing Artificial" claim based upon the primary jurisdiction of the FDA.
Sensenig v. WellPet, No. 16-50021 (N.D. Ill. June 17, 2016). Plaintiff voluntarily dismissed purported multistate class action after defendant filed a motion to dismiss and to strike class allegations.
George v. Blue Diamond Growers, 2016 WL 1464644 (E.D. Mo. Apr. 14, 2016). Court granted motion to stay “All Natural” claim based upon the primary jurisdiction of the FDA.
Cottrell v. Alcon Laboratories Inc., 2016 WL 1163163 (D.N.J. Mar. 24, 2016). Court granted the defendants' motion to dismiss a purported multistate class action based upon lack of Article III standing.
DeMaria v. Nissan North America, Inc., 2016 WL 374145 (N.D. Ill. Feb. 1, 2016). Court dismissed a purported nationwide class action filed by 18 plaintiffs from nearly as many states, ruling it did not have jurisdiction over the out-of-state plaintiffs.
Dougherty v. Source Naturals, Inc., 148 F. Supp. 3d 831 (E.D. Mo. Dec. 8, 2015). Court granted the defendant’s motion to dismiss a purported class action based on federal preemption of the plaintiff’s claims that a multivitamin contained less nutrient levels than the labeled amounts.
In re Avandia Marketing, Sales Practices & Prods. Liab. Litig., MDL No. 1871, 100 F.Supp.3d 441 (E.D. Pa. Apr. 16, 2015). Court granted the defendant's motion to dismiss a class action complaint for failure to allege ascertainable loss under the consumer fraud claims.
Bray v. Simon & Schuster, Inc., No. 14-258 (W.D. Mo. June 25, 2014). Plaintiff voluntarily dismissed a purported class action.
Hussain v. Delta Airlines, Inc., No. 14-333 (W.D. Mo. June 19, 2014). Plaintiff dismissed a purported class action with prejudice.
New England Carpenters Health & Welfare Fund v. GlaxoSmithKline, 2014 WL 4119410 (E.D. Pa. 2014). Court granted the defendant’s motion to dismiss a purported class action based on lack of Article III standing.
Thompson v. Allergan USA, Inc., 993 F.Supp.2d 1007 (E.D. Mo. 2014). Court granted the defendant's motion to dismiss a third-party payor class action based, in part, on federal preemption.
Levy v. Pfizer, Inc., No. 12-2266 (E.D. Mo. Sept. 30, 2013). Plaintiff dismissed case after the court granted the defendant's motion to strike the class allegations.
Levy v. Pfizer, Inc., 719 F.3d 884 (8th Cir. 2013). Appeals court reversed district court and held that the defendant met the Class Action Fairness Act jurisdictional requirements.
McLaughlin v. ConAgra Foods Inc., No. 1216 - CV 20904 (Cir. Ct. of Jackson Cty. Mo. 2013). Plaintiff voluntarily dismissed a purported class action after the defendant filed a motion to dismiss.
American Fiber and Cabling LLC, v. BP Products North America Inc., No. 07-2053 (D. Kan. Sept. 24, 2012). Unanimous jury verdict in favor of the defendants in statewide consumer fraud class action.
Rohrbough v. Pinnacle Foods Group, No. 12-757 (W.D. Mo. 2012). Plaintiff voluntarily dismissed a purported class action.
Bryant v. Pinnacle Foods Group, No. 12-5817 (C.D. Cal. 2012). Plaintiff voluntarily dismissed a purported class action.
Astra USA, Inc. v. Santa Clara County, 131 S.Ct. 1342 (2011). Dismissal of drug pricing overcharge claims; unanimous U.S. Supreme Court held that the plaintiff did not have a cause of action against the defendants.
Judy v. Pfizer, Inc., No. 042-01946-02, 2010 WL 3001745 (Mo. Cir. Ct. July 27, 2010). Class certification denied.
Arlt v. Lindsay Corp., No. C109-324 (Neb. 5th Dist. Ct. Apr. 23, 2010). Class certification denied.
County of Santa Clara v. Astra USA, Inc., 257 F.R.D. 207 (N.D. Cal. 2009). Class certification denied.
In re Neurontin Marketing, Sales Practices, and Product Liability Litig., 257 F.R.D. 315 (D. Mass. 2009). Class certification denied.
In re Neurontin Marketing, Sales Practices, and Product Liability Litig., 244 F.R.D. 89 (D. Mass. 2007). Class certification denied.
In re Pharmaceutical Indus. Average Wholesale Price Litig., 230 F.R.D. 61 (D. Mass. 2005). Class certification denied.
Cocca v. Philip Morris Inc., 2001 WL 34090200 (Ariz. Sup. Ct. July 21, 2001). Class certification denied.
Aksamit v. Brown & Williamson Tobacco Corp., No. 97-3636-23, 2000 U.S. Dist. LEXIS 18880 (D.S.C. Dec. 29, 2000). Class certification denied.
Hansen v. American Tobacco Co., 1999 U.S. Dist. LEXIS 11277 (E.D. Ark. 1999). Certification of medical monitoring class denied.
Emig v. American Tobacco Co., 184 F.R.D. 379 (D. Kan. 1998). Class certification denied.
Publications and Presentations
Food & Beverage Class Actions, American Bar Association’s A Practitioner's Guide to Class Actions, November 2021 (with Amir Nassihi, Melina Manetti, and Kevin Underhill).
The Food Court: Developments in Litigation Targeting Food and Beverage Marketing, U.S. Chamber Institute for Legal Reform, August 2021 (with Cary Silverman and Adriana Paris).
TransUnion Ruling Should Help Curb D.C. Consumer Claims, Law360, August 10, 2021 (with Cary Silverman).
Will the Supreme Court Finally Resolve the Circuit Split over Rule 23(C)(4) Issue Class Actions?, Mealey's Litigation Report: Class Actions, June 4, 2021 (with Timothy E. Congrove & Daniel E. Cummings).
Courts Should Not Substitute Party Status for Personal Jurisdiction in Class Actions, Corporate Disputes, January-March 2021 (with Naoki Kaneko and Kyle Steingreaber).
Why Honey Is a Sweet Target for Consumer Litigation, Law360, January 28, 2021 (with John Johnson III).
Rule 23(c)(4) Issue Certification: Reconciling the Conflict With Rule 23(b)(3)'s Predominance Requirement: Growing Circuit Split on Issue Certification, CLE Webinar, Strafford, November 4, 2020.
The Misuse of Food Forensics in Class Action Litigation, Gradient Trends Webinar - Food Safety, June 19, 2019.
The Cannabis Conundrum: The Evolving Landscape and Risk Mitigation for Hemp & CBD, Momentum FoodBev Exchange Webinar, June 18, 2019 (with Michael Barnett and Lindsey Heinz).
Product Testing Program Implementation: Balancing Transparency and Risks, Grocery Manufacturers Association 2019 Legal Conference, March 5, 2019.
Class Action Litigation Update—Highlighting Recent Substantive Trends and Rule 23 Procedural and Doctrinal Developments, FoodBev Exchange Conference, October 17, 2018 (with Tom Sullivan).
Trends in Consumer Goods Class Action Litigation, Grocery Manufacturers Association 2018 Legal Conference, February 28, 2018 (with Naoki Kaneko).
BMS Personal Jurisdiction Decision and Implications for Defeating Purported Nationwide Class Actions, Grocery Manufacturers Association Litigation Group, September 27, 2017.
Update on Glyphosate Litigation, Grocery Manufacturers Association Litigation Group, July 26, 2017.
Update on Consumer Fraud Class Action Trends and Legislative Response, Update of the Law CLE, June 22, 2017 (with Cary Silverman).
Handling the Consumer Fraud Class Action, International Association of Defense Counsel Webinar Presentation, May 24, 2017.
The Food Court: Trends in Food and Beverage Class Action Litigation, (U.S. Chamber Institute for Legal Reform, February 2017) (with Cary Silverman).
Recipe for Primary Jurisdiction Goes "Natural," Law360, Nov. 21, 2016 (with Elizabeth Fessler).
Oversize Drug Packaging Suits Are A 'Waste' For Plaintiffs, Law360, March 10, 2016 (with Lori McGroder & Iain Kennedy).
"All Natural" Class Action Consumer Litigation Update, Agricultural Business Council of Kansas City, January 21, 2016.
James P. Muehlberger & Iain L. Kennedy, The Glass Half-Empty Class Action: Slack-Fill Litigation, Law360, August 3, 2015.
James Muehlberger, Jennifer Stevenson & Madeleine McDonough, The Rise of Consumer Fraud Class Action Lawsuits Against Cosmetic Companies and Tips for Defending Them, Who's Who Legal, June 2015.
Food and Beverage Industry Litigation Update, Grocery Manufacturers Association Consumer Complaints Management Conference (May 15, 2015).
James P. Muehlberger & Jeff Lingwall, The Satisfaction of A Refund, Or Your Class Action Back, Law360, April 29, 2015.
Early Resolution Strategies for Class Action Litigation, 2015 Grocery Manufacturers Association Litigation Conference (February 25, 2015)
James P. Muehlberger & Jeff Lingwall, Plaintiffs Look Beyond Labels And Toward Product Testing, Law360, February 23, 2015.
Move Over Caveat Emptor, Meet Caveat Venditor, Law360, January 2, 2015.
Panelist, Good Law, Bad Practice: Misuse and Abuse of Missouri's Merchandising Practices Act, American Tort Reform Association and Missouri Chamber Legal Foundation CLE Program (November 5, 2014).
How To Fight The Rising Tide Of Cosmetic Class Actions, Law360, June 3, 2014.
Making an Issue Out of It: The Trial of a 23(c)(4) Class, 2013 DRI Class Actions Conference (July 26, 2013).
Scott Lauck, Hot Fuel Team: Shook, Hardy & Bacon, Legal Champions, Missouri Lawyers Weekly, Jan. 2013.
Does 'Wal-Mart' Doom Expansive Reading of Rule Authorizing Class Actions for 'Particular Issues'?, The National Law Journal, July 11, 2012.
Food-Related Class Action Litigation: What's Hot?, Agribusiness/Food Safety CLE Webcast (May 24, 2011).
Elaine Meyer, Plaintiffs Lose Class Cert. Bid in Mo. Neurontin Case, Law 360, July 2010.
Missouri Class Actions and the Merchandising Practices Act, Missouri Judicial Advanced Trial Skills/Complex Litigation Seminar Course (April 30, 2010).
How Product-Related Risk Management Can Be a Lifeline for Your Company, Sixth Annual Update of the Law (June 25, 2009).
Managing Class Action Litigation Challenges: Winning Strategies for Tackling Certification, Experts, Damages, International Class Actions and CAFA, American Conference Institute’s Managing Complex Litigation: The 6th National In-House Senior-Level Defense Litigation Forum (February 27, 2009).
Analyzing the Provisions of and Differences Between State Consumer Protection Statutes To Develop an Aggressive Defense Strategy, Drug and Device Forum on Defending Consumer Fraud Claims (September 23, 2008).
Analysis of New Developments and Trends in Class Action Certification, ACI Forum on Positioning the Class Action Defense for Early Success (September 26, 2007).
Certification Claims Come Under Tighter Scrutiny, The National Law Journal, December 4, 2006.
Lawsuits Without Injury: The Rise of Consumer Protection Claims, Harris Martin Litigation Watch, October 2006.
Eighth Circuit Joins Growing Number of Circuit Courts in Rejecting the Eisen Rule in the Class Certification Determination, Missouri Association of Defense Counsel Newsletter, Summer 2005.
Class Action Appeals: Rule 23(f) and its Jurisprudence, ABA Class Action and Derivative Suits, Summer 2005.
Court's Use of Daubert-Lite Standard During Class Certification Proceedings is Analytically Less Filling, ABA Class Action and Derivative Suits, Fall 2004.
Missouri Court Leads the Way in Utilizing Full Daubert Analysis During Class Certification Proceedings, Missouri Organization of Defense Lawyers Newsletter, Fall 2004.
An Overview of Lone Pine Orders in Toxic Tort Litigation, Defense Counsel Journal, October 2004.
Misplaced Reliance on Eisen and ‘Lower’ Daubert Standard Leads to Certification of Historic Class, For the Defense, September 2004.
Kansas Supreme Court Clarifies Class Certification Standards, Kansas Association of Defense Counsel Newsletter, Summer 2004.