Leslie A. Brueckner

The Coast Guard’s 1990 Letter

The Illinois courts held that federal law barred the claim. Under the Federal Boat Safety Act of 1971, the Coast Guard sets safety standards for recreational boats, and in May 1988 it decided that propeller accidents merited a special study. After eighteen months, a subcommittee of the National Boating Safety Advisory Council recommended that the Coast Guard “should take no regulatory action to require propeller guards,” because “[n]o simple universal design suitable for all boats and motors in existence” had been proved feasible. In 1990 the Coast Guard agreed that the available accident data did not support such a regulation and said that it would keep reviewing new information.

Brueckner, who had graduated summa cum laude from the University of California, Berkeley, in 1983 and magna cum laude from Harvard Law School in 1987, argued for Rex Sprietsma on October 15, 2002, with Michael J. Quirk as co-counsel. The United States argued on the same side, and the attorneys general of seventeen states filed briefs supporting the claim. She told the justices that “the Coast Guard letter itself lacks the force of law regardless of its content,” and that if the Court ruled for Mercury Marine, “we have a victim here who would be left without any compensation whatsoever.”

On December 3, 2002, the Court ruled for the family nine to zero. Justice John Paul Stevens wrote that the Act’s preemption clause did not reach common-law claims, noting its saving clause: compliance with the Act “does not relieve a person from liability at common law or under State law.” Although the Coast Guard’s decision “was undoubtedly intentional and carefully considered,” he wrote, “it does not convey an ‘authoritative’ message of a federal policy against propeller guards.” The Court reversed the Illinois Supreme Court. Rex Sprietsma and his family, Brueckner said that day, “will finally have their day in court.”

A Fresh Organic Label

By 2015 Brueckner was a senior attorney at Public Justice, as Trial Lawyers for Public Justice had been renamed. There she founded the Food Project, which used litigation to address abuses in industrial animal agriculture. She has taught appellate advocacy at Georgetown University Law Center and American University Washington College of Law.

Michelle Quesada alleged that Herb Thyme Farms, a large California herb grower with one certified-organic farm and several conventional ones, processed organic and conventional herbs together at the same packing and labeling facility, sold the blend under a “Fresh Organic” label and packaged some entirely conventional herbs as organic. She had paid a premium, believing the herbs were 100 percent organic. The lower courts held her California claims preempted by the federal Organic Foods Production Act of 1990.

Brueckner argued for Quesada in the California Supreme Court. On December 3, 2015, the court reversed unanimously, and Justice Kathryn Mickle Werdegar wrote: “We hold a state law claim that produce is being intentionally mislabeled as organic is not preempted.” Suits like Quesada’s, she wrote, “promote, rather than hinder” the purposes of the federal act.

Twins and the Brethine Label

Novartis made the brand-name drug Brethine and held its federal approval until December 2001, when it transferred the rights to a subsidiary of aaiPharma. Under federal law, makers of generic terbutaline, Brethine’s equivalent, had to use the same label. In September 2007 a pregnant woman was given generic terbutaline to suppress premature labor; her twins, born that October, sued Novartis through their father, alleging that the company had known or should have known of the drug’s risks to fetal brain development and had failed to update the label.

Brueckner and Benjamin I. Siminou, then of Thorsnes Bartolotta McGuire in San Diego, represented the twins in the California Supreme Court. While the case was pending, she wrote that the risk of tort liability “creates an incentive for drug companies to change their labels when new risks emerge.” On December 21, 2017, Justice Mariano-Florentino Cuéllar wrote for the court that a brand-name manufacturer “owes a duty of reasonable care in ensuring that the label includes appropriate warnings,” whether a patient receives the brand-name drug or its generic equivalent, and that its liability for its own negligence did not automatically end when it transferred its rights in the drug to a successor. The court affirmed the Court of Appeal, which had allowed the twins to amend their negligence and negligent misrepresentation claims.

North Carolina’s Property Protection Act

Under North Carolina’s Property Protection Act, enacted in 2015, an employer could sue a worker who entered nonpublic areas of the workplace for reasons other than the job and captured documents or data, or recorded images or sound, and used them to breach the worker’s duty of loyalty. PETA planned an undercover investigation of testing laboratories at the University of North Carolina at Chapel Hill. In 2016 PETA and seven food-safety, animal-welfare, worker-accountability and public-interest organizations challenged the Act in federal court, and Chief Judge Thomas D. Schroeder dismissed the suit for lack of standing.

Brueckner was on the groups’ brief in the Fourth Circuit with David S. Muraskin of Public Justice, who argued the appeal. On June 5, 2018, Judges William B. Traxler Jr., Henry F. Floyd and Dennis W. Shedd reversed. “We cannot say that the claimed ‘chilling’ effect of the Act is objectively unreasonable,” the court wrote, finding “a credible threat that the Act will be enforced against them if they proceed with their plans.”

The case went back to the district court and returned to the Fourth Circuit. On February 23, 2023, Senior Judge Floyd wrote for the court that “recording in the employer’s nonpublic areas as part of newsgathering constitutes protected speech,” and the court held the Act unconstitutional when applied to bar the newsgathering PETA planned. On October 16, 2023, the Supreme Court declined to review the decision.

The Ready Set Pool

James Noel bought a Kids Stuff Ready Set Pool for his grandchildren at a Rite Aid in San Rafael. The photograph on the box suggested that it could hold several adults; set up, it was much smaller. He sued for California purchasers under the state’s unfair competition, false advertising and consumer legal remedies laws, and discovery showed that Rite Aid had sold 20,752 of the pools in California during the class period, for $949,279.34, and that 2,479 had been returned.

The Marin County Superior Court refused to certify the class because Noel had offered no evidence of how its members would be identified, and the Court of Appeal affirmed. Noel died while the case was on appeal, and his widow, Diana Nieves Noel, took his place.

Brueckner argued the case in the California Supreme Court. On July 29, 2019, Chief Justice Tani G. Cantil-Sakauye wrote for a unanimous court that a class is ascertainable when it is defined “in terms of objective characteristics and common transactional facts,” and that a representative plaintiff “need not introduce evidence establishing how notice of the action will be communicated to individual class members.” The court reversed the Court of Appeal.

Hardeman: Holding the Roundup Judgment

Edwin Hardeman used Roundup from the 1980s until 2012 and was diagnosed with non-Hodgkin’s lymphoma in early 2015. He sued Monsanto in 2016, one of about 5,000 federal Roundup cases consolidated before Judge Vince G. Chhabria in San Francisco, and in 2019 his case was tried in two phases. The jury found that his exposure to Roundup was a “substantial factor” in causing his cancer and that Monsanto had failed to warn of the risk, and it awarded him $5,267,634.10 in compensatory damages as well as punitive damages.

Brueckner was on Hardeman’s brief in the Ninth Circuit with David J. Wool, who argued the appeal, Aimee H. Wagstaff and Jennifer A. Moore. On May 14, 2021, Judge Ryan D. Nelson wrote for the court that Hardeman’s failure-to-warn claims were “equivalent to, and fully consistent with,” the misbranding provisions of the Federal Insecticide, Fungicide, and Rodenticide Act and were not preempted, that the district court had acted within its discretion in admitting his experts’ causation testimony, and that “substantial evidence was presented to the jury that Monsanto acted with malice.” The court affirmed the judgment, and on June 21, 2022, the Supreme Court denied Monsanto’s petition for review.

Z Syndrome

In September 2014 Marjorie Glover of Connecticut had cataract surgery on both eyes, and a Bausch & Lomb Trulign lens was implanted in each. Weeks later she lost significant vision. Her physician diagnosed Z syndrome, a complication of that lens in which part of it moves forward while another part stays in place or moves backward; more surgeries followed, and fragments of the lenses remain. She alleged that the company had known of numerous Z syndrome cases before her surgeries and had failed to report them all to the Food and Drug Administration on time, had failed to complete on time a postmarket safety study the agency required, and had changed the labeling after her surgeries to reflect how often the complication occurred.

A federal district court dismissed her product-liability claims as preempted, and the Second Circuit asked the Connecticut Supreme Court whether state law recognized a claim based on a manufacturer’s failure to report adverse events to the FDA. Brueckner was on the plaintiffs’ briefs in that court with Wendy R. Fleishman of Lieff Cabraser Heimann & Bernstein. On June 7, 2022, Chief Justice Richard A. Robinson wrote for the court that the Connecticut Product Liability Act recognizes such a claim. On August 8, 2022, the Second Circuit, in an opinion by Judge Gerard E. Lynch, held that the claims were not preempted, vacated their dismissal and returned the case to the district court.

2,600 Wells

In July 2018 and May 2020, EQT transferred more than 12,000 West Virginia oil and gas wells to Diversified Energy for about $642 million. Under West Virginia law, a well idle for twelve months must be plugged promptly, and Diversified had agreed with the state Department of Environmental Protection to plug or return to production at least fifty wells a year. Landowners from Harrison, Nicholas, Preston and Wetzel counties sued in 2022 over unplugged, abandoned wells on their land, alleging that Diversified had taken on plugging obligations costing more than $2 billion, and sought damages for nuisance, trespass and negligence.

Judge John Preston Bailey denied Diversified’s motion to dismiss in April 2023, writing that its agreement with the agency was “simply an exercise” of the agency’s authority and “has no effect” on the landowners’ property rights. That June he ruled that the agency was not a required party, because the landowners sought only money damages, and the defendants appealed. Brueckner, who had joined Bailey & Glasser in April 2022 as a partner co-leading its appellate and Supreme Court practice, argued for the landowners on May 8, 2024, against John C. O’Quinn of Kirkland & Ellis. On August 5, 2024, Judge Paul V. Niemeyer, joined by Judges Allison Jones Rushing and Toby J. Heytens, granted the landowners’ motion to dismiss the appeal, holding that the district court’s order “did not rule on any immunity issue” and that the collateral-order doctrine did not apply.

That September Brueckner joined Singleton Schreiber as a partner in San Diego. In November 2024 the court preliminarily approved a settlement for landowners in six states where Diversified had owned or operated wells, and by the end of May 2025 it had given final approval and dismissed the case. Class members who raise a “bona fide human health, safety, or environmental concern” may apply for expedited cleanup of up to ten wells a year. Under its existing state agreements, Diversified would have plugged 580 wells. The settlement requires it to plug 2,600 in West Virginia, Ohio, Kentucky, Pennsylvania, Virginia and Tennessee by December 31, 2034.