Daniel J. Herling

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Practice Areas

  • Consumer Product Safety
  • Complex Tort & Product-Related Litigation
  • Product Risk Management & Response
  • Health Care Enforcement Defense
  • E-Discovery & Records Management
  • Medical Technology
  • Health Care
  • Life Sciences
Contact InfoTelephone: 415.432.6103
Fax: 415-432-6001
Internet: Each Attorney's Internet Address takes the following form: first initial, last name @mintz.com (e.g., rmintz@mintz.com)

University University of Dayton, B.S.
Law SchoolUniversity of Dayton School of Law, J.D.
Admitted1979, Pennsylvania; 1982, California; United States Court of Appeals for the Federal Circuit


Dan's practice is focused on product liability issues relating to pharmaceuticals and medical devices, commercial litigation, and antitrust matters. His trial work also encompasses class actions, intellectual property litigation, privacy and data security, and professional liability.

Dan advises international companies in the pharmaceutical, medical device, food, over-the-counter drugs, homeopathic remedies, and dietary supplement 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.

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.

• 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.


• Sixty-Three Mintz Levin Attorneys Included in The Best Lawyers in America, 2014 Edition, (08.15.2013)

• Mintz Levin's Daniel Herling Appointed Chair of Drug, Device and Biotechnology Section of Federation of Defense & Corporate Counsel, Inc., (07.29.2013)

• Quoted inSo the JPML Spurned Your MDL Bid. Now What?,Law360 (07.11.2013)

• Featured inMintz Hires Product Liability Pair in San Francisco,Law360 (04.05.2013)

• Mintz Levin Continues Strategic Growth in San Francisco with Addition of Members Daniel J. Herling and Michelle Gillette, (04.05.2013)

• Featured inMintz Hires Product Liability Pair for S.F. Office,The Recorder (04.04.2013)

Recognitions & Awards

Expert Guides:Product Liability Litigation (2014)
Northern California Super Lawyers: Business Litigation (2004 - 2013)
Best Lawyers in America: Product Liability Litigation (2012 - 2014)
• Lead trial counsel in breach of contract/indemnity action case selected as a Top 10 Defense Verdict byThe Daily Journal (2010)
• Martindale-Hubbell AV Preeminent


Co-author,Food Fight over GMOs and the 'Right to Know',Law360 (06.19.2014)

• Co-author,FDA Releases Final eMDR Rule and Deadline for Compliance,Medical Technology Alert (02.13.2014)

Speaking Engagements

Speaker,April MCLE: The Fine Print Matters - Boilerplate Contract Clauses Through the Litigator's Lens, ACC America, San Diego, CA (04.17.2014)

• Speaker,California Green Chemistry: What Retailers should Expect and Prepare for in 2014, Mintz Levin, Webinar (12.03.2013)

• Speaker,Keynote: The Changing Landscape and the Global Impact & Regulatory Updates,SAI Global Food Safety Symposium, Los Angeles, CA (05.09.2013)

• Speaker,Fast, Fat Free, or Fraudulent: Latest Developments in False Advertising and Labeling Class Actions, DRI, Webinar (04.16.2013)

Reported CasesRepresentative Matters: Successfully represented a semiconductor equipment supplier against allegations of breach of contract, lack of good faith and fair dealing, fraud, and unfair competition. The plaintiff had sought approximately $200 million in damages. The defense verdict was selected as one of the Top Defense Verdicts of 2010 by the San Francisco Daily Journal and was upheld on Appeal. Obtained complete dismissal of product liability, RICO action through a motion to dismiss in the Southern District of Ohio. Successfully defended a California grocery retailer in a state court lawsuit and on appeal. The lawsuit was filed by three Union for Food and Commercial Worker-employed plaintiffs alleging that the retailer violated the Rosenthal Roberti Item Pricing Act. Obtained a summary judgment in the US District Court for the Northern District of California in a medical device action. Successfully represented in Arbitration a supplier of component parts for a consumer product in breach of contract and breach of warranty claims arising from a nationwide CPSC recall. Successfully resolved California Unfair Competition claims (17200) against manufacturers of dietary supplements, foods, cosmetics, and homeopathic medicine products. 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. Successfully obtained summary judgment in the US District Court for the Northern District of California in a business defamation claim that led to new management obtaining control of a non-US based software 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. Favorably settled purported three state class actions alleging product liability and contract claims in state court. Obtained defense verdict in a state superior court action alleging product liability and breach of contract claims.

Documents by this lawyer on Martindale.com

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California Reenters the GMO Food Labeling Arena; This Time Through the Legislature
Daniel J. Herling, March 17, 2014
Not to be left behind and not dependent on any other state action (Connecticut and Maine notwithstanding), a bill has been introduced (SB 1381) on February 21, 2014 that requires any food, with certain exceptions (more on that later), offered for retail sale in California to be labeled...

FDA Releases Final eMDR Rule and Deadline for Compliance
Joseph Hammang,Daniel J. Herling, February 17, 2014
The Food and Drug Administration (FDA) announced and is promulgating today the Final Rule on Electronic Medical Device Reporting (eMDR). Originally proposed in 2009, the rule is now final and a deadline for compliance has been identified. The rule impacts device manufacturers and importers and...

As Maine Goes, So Goes The Nation?
Daniel J. Herling, January 15, 2014
“As Maine goes, so goes the nation” was a phrase that described Maine’s reputation as a bellwether state for presidential elections from 1832 through approximately 1936.

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Office Information

Daniel J. Herling

44 Montgomery Street, 36th Floor
San FranciscoCA 94104


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