Morrison Foerster’s Class Dismissed blog provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class actions lawsuits and product liability issues that affect consumer-facing companies. Through Class Dismissed, attorneys from our nationally recognized Consumer Class Action and Products Liability practices offer a real-time assessment of the developments in matters that are shaping the industry. This blog examines the full spectrum of consumer-related class action and product liability lawsuits ranging from false advertising, privacy, consumer product safety, ADA, food misbranding, TCPA, environment, retail, and government actions as well as nationwide and multidistrict litigation class actions.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Partner

Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

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Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

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Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

Zak is an associate in the Litigation Department in Morrison Foerster’s New York office.Zak’s practice focuses on class actions, commercial litigation, white collar defense, government investigations, and antitrust litigation and counseling. He has represented clients before federal and state courts in complex commercial matters, as well as in arbitration tribunals.Zak received his J.D. from New York University School of Law in 2018, where he was inducted into the Order of the Barristers. During law school, Zak also served as the Marden executive editor for the NYU Law Moot Court Board. In 2013, Zak received his B.A. and M.A. in political science from Yale University, receiving honors in his major and the Ellsworth Prize for Best Senior Essay in the Social Sciences.

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Zak Newman

Mitchell A. Hokanson is an associate in the Litigation Department of Morrison Foerster’s San Diego office.Mitchell’s practice focuses on commercial litigation and consumer class actions. He has extensive experience with civil litigation, including managing day-to-day strategy, propounding and responding to discovery, taking and defending depositions, and engaging in motion practice. He also has experience providing regulatory advice to clients, including pro bono partners and multinational corporations. Mitchell maintains an active pro bono practice.After law school, Mitchell worked as a judicial clerk for Justice Susan M. Carney of the Alaska Supreme Court, where he drafted bench memoranda and opinions on a wide range of state and federal law topics. Prior to joining MoFo, Mitchell worked for another international law firm, where he was a member of the Complex Civil Litigation practice group, in Los Angeles, California.Mitchell received his J.D. from Columbia Law School, where he was honored as a James Kent Scholar and Harlan Fiske Stone Scholar. While in law school he was the senior executive editor of the Columbia Journal of Environmental Law and worked as a judicial intern for Judge Sandra S. Ikuta of the United States Court of Appeals for the Ninth Circuit and Judge George B. Daniels of the United States District Court, Southern District of New York. Prior to that, Mitchell earned his B.A. from Stanford University.

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Mitchell Hokanson

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Client Alert: Jury Returns Verdict in “Manufactured in the USA” False Advertising Case

Everyone Please Stand: Supreme Court to Consider Standing Requirements for Class Actions, With the Potential to Resolve Long-standing Multi-circuit Split.

A New Era of Climate Accountability: State Climate Superfund Laws Gain Momentum

APHIS Reinstates Legacy Biotechnology Regulations: Implications for CRISPR-Edited Plants

California Updates Prop 65 Short-Form Warning Requirements

A jury in California awarded $2.36 million to consumers after finding that R.C. Bigelow Inc. violated the Consumer Legal Remedies Act (CLRA), breached an express warranty, and made a false misrepresentation by labeling its tea products as “Manufactured in the USA 100% American Family Owned” despite sourcing and processing ingredients abroad. The rare trial verdict highlights increasing scrutiny of “Made in USA” claims and the legal risks of noncompliance.Read the <a href="https://www.mofo.com/resources/insights/250415-jury-returns-verdict-in-manufactured" target="_self">full client alert</a>.

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

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Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy mat

Claudia Vetesi

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class actions.

Claudia M. Vetesi

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Lena is an associate in the Litigation Department in Morrison Foerster’s San Francisco office. Lena’s practice focuses on commercial and class actions litigation, with an emphasis on false advertising, unfair competition, and antitrust. Lena regularly counsels clients in the food and beverage, dietary supplement, cosmetics, retail, and technology sectors.











Lena Gankin

Client Alert: Jury Returns Verdict in “Manufactured in the USA” False Advertising Case

High Court Orders Rethink Of $9.7M Award After TransUnion

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On January 24, 2024, the Supreme Court granted certiorari in Laboratory Corp. of America v. Davis (“LabCorp”),[1] to consider “[w]hether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury.” This will be the first time that the Supreme Court has addressed Article III standing requirements in class actions since deciding TransUnion LLC v. Ramirez in 2021. And it presents an opportunity for the Justices to resolve significant confusion among federal district courts about the extent to which a class can be certified if there is evidence that putative class members did not suffer any injury.[2] If the High Court chooses to resolve the circuit split and require that all putative class members have suffered an Article III injury, it could raise the standard plaintiffs must meet to certify a class.The District Court Certifies a Class with Uninjured MembersLabCorp is a class action that was filed on behalf of all legally blind individuals who visited a LabCorp patient center and alleged that, due to their disability, they were unable to use LabCorp’s Self-Service kiosks. The California class asserted claims under California’s Unruh Civil Rights Act (Unruh Act), which provides for $4,000 in statutory damages for each violation.In certifying the California Class, the District Court found that common facts predominated the Unruh Act claim, but only addressed the named plaintiff’s standing. The District Court found that all class members were subject to the same injuring behavior, namely that the LabCorp Self-Service kiosks were inaccessible to them. The District Court also found that the named plaintiff’s injury met the typicality requirement, explaining that the Ninth Circuit’s permissive standard did not require that the named plaintiffs’ injuries be identical with those of the other class members, only that the unnamed class members have injuries similar to those of the named plaintiffs and that the injuries result from the same, injurious course of conduct.[3] In other words, the District Court did not require that plaintiff establish, at class certification, that all putative class members suffered an injury.The Ninth Circuit Affirms, Deepening a Split Among the Courts of AppealsThe Ninth Circuit affirmed. In its standing analysis, the Ninth Circuit only looked at whether the named plaintiff had met the Article III standing requirement and rejected defendants’ arguments that that many of the putative class members lacked Article III standing. According to Defendant, discovery revealed that many of the class members were not aware that the LabCorp facilities included Self-Service kiosks and therefore were not injured.But because the Ninth Circuit held that the named plaintiff had standing, the court only addressed Defendants’ argument in a footnote, stating that class certification was not defeated even if some potential class members may not have been injured. To support its position, the court cited Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 667 (9th Cir. 2022), which held that Rule 23 permits “certification of a class that potentially includes more than a de minimis number of uninjured class members[.]” But the court did not conduct any substantive analysis of whether the district court certified a class with more than a de minimis number of injured members.The Ninth Circuit’s standard, which allows for more than a “de minimis” number of uninjured class members, aligns with the Seventh and Eleventh Circuits, although the Ninth Circuit has not clarified what that number would be. See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 669 (9th Cir. 2022) (“we reject the dissent’s argument that Rule 23 does not permit the certification of a class that potentially includes more than a de minimis number of uninjured class members”). By contrast, the Seventh and Eleventh Circuits have held that the number of uninjured class members would have to be less than a “great many” or a “large portion” of the certified class. See Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 825 (7th Cir. 2012) (“There is no precise measure for ‘a great many.’”); Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1277 (11th Cir. 2019) (a class fails predominance only where a “large portion” of members lack injury).But other Circuits have taken different approaches.The DC and First Circuits have articulated a less permissive standard, holding that a class may be certified only if a “de minimis” number of the potential class members lack standing. See In re Nexium Antitrust Litig., 777 F.3d 9, 25 (1st Cir. 2015) (“a certified class may include a de minimis number of potentially uninjured parties.”); In re Rail Freight Fuel Surcharge Antitrust Litig. – MDL No. 1869, 934 F.3d 619, 627 (D.C. Cir. 2019) (denying class certification because more than a de minimis number of class members lacked any Article III injury).By contrast, the Second and Eighth Circuits have imposed a high bar and require that all potential class members must have Article III standing in order to be certified. See Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006) (“no class may be certified that contains members lacking Article III standing”); Halvorson v. Auto-Owners Life Ins. Co., 718 F.3d 773, 778 (8th Cir. 2013) (“In order for a class to be certified, each member must have standing.”).Key TakeawaysBy granting certiorari on the question of whether a 23(b) class action could be certified when some members of the proposed class lack any Article III injury, the Supreme Court will have the opportunity to resolve an important circuit split and provide guidance to courts that have struggled with how to apply TransUnion at class certification.Besides resolving the circuit split, this case will also present the Supreme Court conservative majority with an opportunity to take a more restrictive approach to class certification. Indeed, the same conservative majority that wrote the majority opinion in TransUnion could agree with the Second and Eighth Circuits and require all putative class members to establish Article III standing in order for a class to be certified. If so, this decision would raise the bar for all class actions and would be particularly important for privacy class actions, like TransUnion, where determining a cognizable injury can be difficult. The Court will also have the opportunity to address the implications for class certification where the class representative experienced a materially different, and more severe, injury than all or most other class members. Morrison Foerster will continue to follow this case.[1] <a href="https://www.supremecourt.gov/docket/docketfiles/html/public/24-304.html" target="_blank">No. 24-0304</a>.[2] TransUnion LLC v. Ramirez, 594 U.S. 413 (2021).[3] Davis v. Lab’y Corp. of Am. Holdings, 2022 WL 22855520, at *5 (C.D. Cal. June 13, 2022).

Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

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Tamara Wiesebron’s practice focuses on complex commercial litigation—including class actions, product liability and transactional disputes—across a variety of industries. Tamara has experience with drafting substantive motions, handling fact discovery, taking and defending depositions, and preparing witnesses for depositions and trial for antitrust and commercial litigation matters. 

Tamara Wiesebron

As climate adaptation and mitigation costs escalate, a wave of state climate superfund legislation is emerging across the United States. This novel approach to climate accountability, pioneered by Vermont and New York, imposes retrospective financial responsibilities on major carbon emitters to fund state climate resilience projects. Payment obligations under New York and Vermont’s laws will be established in 2026 and 2027, respectively.Five other states are now considering similar legislation, and Oregon is additionally considering creating a private cause of action against emitters for individuals harmed by extreme weather events. This trend of state superfund laws signals a growing interest by states to regulate climate issues at a time when the federal administration has indicated its intent to reduce regulation and enforcement in this area. While legal challenges may delay the implementation of these state laws or reduce their scope, states are unlikely to abandon their commitment to regulating emissions. Companies, particularly in the energy sector or high-emitting industries, must prepare for a patchwork of potentially overlapping and inconsistent regulations and financial obligations related to greenhouse gas (GHG) emissions.————Modeled after the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), state superfund laws utilize a “polluter pays” approach to hold fossil fuel companies financially accountable for their contributions to climate change. These laws focus on historical GHG emissions, requiring companies to contribute to superfunds regardless of the legality of their actions at the time of emissions.Vermont’s Climate Superfund Act, enacted in May 2024 following the catastrophic Great Vermont Flood,[1] targets companies that generated over one billion metric tons of GHG emissions between 1995 and 2024. The law requires the state Treasurer to assess the costs to the state and its residents of the emissions of GHGs during the stated period. Regulated companies will be required to pay an amount of the assessed costs proportional to their share of covered GHG emissions during the period, with the revenues to be used to fund critical climate mitigation and adaptation infrastructure.Vermont’s Treasurer must develop its cost assessment by January 15, 2026. The state is <a href="https://outside.vermont.gov/agency/anr/climatecouncil/Shared%20Documents/ANR-CAO_Climate_Superfund_RFI.pdf?_gl=1*7w8mjx*_ga*MTg0MTg1MjcwMi4xNzM5MjA4NzIx*_ga_V9WQH77KLW*MTczOTIwODcyMS4xLjEuMTczOTIwOTg2Ny4wLjAuMA.." target="_blank">currently seeking input</a> to determine which fossil fuel companies should be held accountable and how to calculate their share of climate-related costs. The methodologies to identify responsible parties and determine their applicable share of covered GHG emissions will be adopted by January 1, 2027.New York’s Climate Change Superfund Act (CCSFA), passed in December 2024, mandates an annual collection of $3 billion over 25 years. The statute targets fossil fuel companies active between the years 2000 and 2018. The New York State Department of Environmental Conservation has until December 26, 2025, to promulgate regulations implementing the law, including adopting methodologies to identify responsible parties, determine their covered GHG emissions, and issue notices of cost recovery demands. Payments are due on September 30, 2026, and annually thereafter.On January 8, 2025, an amendment was proposed to the CCSA. Among other changes, the amended law would set forth a new process for challenging the cost recovery demand, extend the covered period from 18 to 24 years, and remove a responsible party’s option to pay their cost recovery demand in annual installments. Additionally, New York authorities would be empowered to send requests to covered entities inquiring into, among other things, “past practices, production, extraction, refining, emissions, or other historical information” needed to make responsibility determinations. The amended law would delay the issuance of cost recovery demands to June 30, 2028, and responsible parties’ payments would be due by December 30, 2028.Other Pending Climate Superfund LegislationIn September 2024, Sen. Van Hollen (D-MD) and Rep. Nadler (D-NY-12) introduced the Polluters Pay Fund legislation to establish a unified federal framework for climate liability. The bill mirrors the state laws by requiring large fossil fuel companies to pay into a fund based on their proportional share of historical emissions. The bill has not advanced beyond the initial committee referral and is unlikely to gain traction under a Republican-controlled Congress in 2025.Despite likely federal inaction on climate liability, several states are considering legislation similar to Vermont and New York, indicating a growing trend toward holding fossil fuel companies financially responsible for the impacts of climate change:California: The Polluters Pay Climate Cost Recovery Act (<a href="https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202320240SB1497&showamends=false" target="_blank">S.B. 1497</a>) would require the California Environmental Protection Agency to determine the total costs incurred by the state due to climate change and potential mitigation and adaptation expenditures through December 31, 2045. The agency would assess cost recovery against fossil fuel companies based on their proportional share of emissions between January 1, 2000, and December 31, 2020. The bill did not advance in 2024 but is expected to be reintroduced this year, particularly in light of the devastation caused by recent wildfires in the Los Angeles area.Maryland: Maryland’s Responding to Emergency Needs from Extreme Weather Act (<a href="https://mgaleg.maryland.gov/2024rs/bills_noln/hb/fhb1438.pdf" target="_blank">H.B. 1438</a> and <a href="https://mgaleg.maryland.gov/2024RS/bills/sb/sb0958F.pdf" target="_blank">S.B. 958</a>) would establish a climate change superfund to recover $9 billion in costs for climate-related adaptation expenses. The bill targets companies with GHG emissions exceeding one billion metric tons of CO2-equivalent emissions between 2000 and 2018. The bill is early in the legislative process, as it was first read in committee on January 8, 2025.Massachusetts: Massachusetts’ Climate Change Adaptation Cost Recovery Act (<a href="https://malegislature.gov/Bills/193/H872" target="_blank">H.B. 872</a> and <a href="https://malegislature.gov/Bills/193/S481" target="_blank">S.B. 481</a>) proposes a $75 billion fund over 25 years to be financed by major fossil fuel companies. The bill targets companies with GHG emissions exceeding one billion metric tons of CO2-equivalent emissions between 1995 and 2024. The bill was filed for consideration in the current legislative session on January 17, 2025.New Jersey: New Jersey’s Climate Superfund Act (<a href="https://www.njleg.state.nj.us/bill-search/2024/S3545" target="_blank">S.B. 3545</a> and <a href="https://www.njleg.state.nj.us/bill-search/2024/A4696" target="_blank">A.B. 4696</a>) would impose liability on fossil fuel companies responsible for more than one billion metric tons of GHG emissions between January 1, 1995, and the act’s effective date. The State Treasurer would be tasked with assessing the state’s damages related to GHG emissions, which would then be apportioned to the responsible entities based on their contribution to total emissions. The bill was introduced in September 2024 and referred to the committee in December.Oregon: The Oregon legislature is considering two bills establishing strict liability for emitters. Both bills are currently before the state’s Senate Committee on Energy and Environment.The Oregon Climate Change Recovery Fund Act (<a href="https://legiscan.com/OR/text/SB682/2025" target="_blank">SB682</a>) mirrors other state superfund laws by imposing strict liability for fossil fuel companies responsible for more than one billion metric tons of GHG emissions between January 1, 1995, and December 31, 2024. The bill would establish the Climate Superfund Cost Recovery Program within the Department of Environmental Quality, which is tasked with assessing the financial impacts of GHG emissions in Oregon.By contrast, the Climate Change Superfund Act (<a href="https://olis.oregonlegislature.gov/liz/2025R1/Downloads/MeasureDocument/SB679/Introduced" target="_blank">SB679</a>) would allow individuals harmed by climate disasters or extreme weather events to bring an action against emitters to recover damages. All entities having emitted over one billion metric tons of CO2-equivalent since January 1, 1965, would be held jointly, severally, and strictly liable for the damages.Anticipated Legal and Implementation ChallengesState climate superfund laws are expected to encounter substantial legal challenges.The U.S. Chamber of Commerce and the American Petroleum Institute filed suit against Vermont’s Climate Superfund Act in December 2024, arguing that the law is preempted by the Clean Air Act and violates the Dormant Commerce Clause.On February 6, 2025, a coalition of 22 states led by West Virginia filed a lawsuit against New York, challenging that state’s recently enacted CCSFA. The plaintiff states contend that the law is unconstitutional because it is preempted by the Clean Air Act, which designates the federal government as the primary authority for establishing interstate emissions standards.While the superfund laws generally include language limiting their reach to emitters with sufficient connection to the state to satisfy constitutional requirements, the laws are still likely to be challenged on Due Process and Commerce Clause grounds. Notably, none of the laws, as enacted or proposed, require the emissions to originate in or reach the legislating state. Thus, in addition to Dormant Commerce Clause challenges, the laws are vulnerable to the claim that they exceed the state taxing power under the Commerce Clause because there is an insufficient nexus between the taxed activities and the taxing state.Concerns have also been raised about the constitutionality of imposing retroactive liability on companies for actions that were legal at the time and on limiting liability to only a subset of polluters. However, courts have repeatedly upheld the model of retroactive liability pioneered by CERCLA.[2]Finally, the superfund laws require state agencies to apply attribution methodologies to allocate responsibility for historical emissions. This process relies on climate-attribution science, a complex and evolving branch of science that seeks to isolate the effect of human influence on the climate. The laws tie cost recovery to state expenditures rather than damages, which avoids the difficult task of assigning a specific dollar value to the damages attributable to a particular entity. However, state lawmakers need to justify the cost recovery estimates, including by using attribution research to show that recovery costs are attributable to climate change.While advances in attribution science have paved the way[3] for this flurry of state legislative action, representatives of the fossil fuel industry have already called into question[4] the validity of attribution science, going so far as to characterize it as “<a href="https://www.eenews.net/articles/a-superfund-for-climate-these-states-are-pushing-for-it/" target="_blank">a conspiracy of the Rockefeller Family Fund.”</a> — — —The new presidential administration appears to be ushering in a period of federal deregulation on climate issues, leaving a regulatory void for states committed to pursuing climate accountability, mitigation, and adaptation measures. The administration <a href="https://www.whitehouse.gov/presidential-actions/2025/01/unleashing-american-energy/" target="_blank">directed the EPA</a> to review the “legality and continuing applicability” of its 2009 GHG endangerment finding. This finding is the basis for EPA’s authority to regulate GHG emissions from vehicles and power plants under the Clean Air Act, and its revocation could significantly weaken climate regulations. The administration has also indicated an intent to terminate the use of the social cost of carbon in federal decision‑making and to revoke California’s state emissions waiver, which has allowed California to establish its own more stringent tailpipe emission standards.Despite this expected federal rollback of regulation on climate issues, state superfund laws indicate a renewed interest by states in creating and enforcing climate-related obligations. California has enacted mandatory climate-related disclosures for businesses, and several other state legislatures have considered similar requirements.[5] Even if state superfund laws are successfully challenged in court, states are likely to reinstate them with a more limited scope—such as by limiting their reach to emissions produced within the state’s borders—or to attempt other measures to cap emissions or tax large polluters. For example, <a href="https://www.pewtrusts.org/en/research-and-analysis/articles/2024/11/21/states-are-exploring-paths-to-finance-climate-resilient-infrastructure" target="_blank">fourteen states</a> now operate some type of cap-and-trade emission reduction system.While the ultimate legal status of the superfund laws remains uncertain, these laws mark a significant escalation in environmental regulation, potentially establishing a template for retroactively requiring polluting industries to internalize the environmental costs of their products. This escalation constitutes an emerging regulatory risk for sectors that originate pollution, such as fossil fuel companies, the industrial agriculture sector—which directly generates large quantities of methane emissions from livestock—and the plastics industry—which produces large amounts of nonbiodegradable waste.However, broad state action to internalize the externalities of pollution will likely face political barriers, in additional to legal challenges, if forcing industries to absorb the costs of their climate impacts drives up the end-cost of certain consumer products.MoFo’s environmental and climate litigation and regulatory attorneys continue to monitor climate-related obligations at the state and federal level and are available to advise companies navigating this evolving regulatory landscape.On February 21, 2025, California lawmakers introduced the Polluters Pay Climate Superfund Act of 2025 (<a href="https://leginfo.legislature.ca.gov/faces/billStatusClient.xhtml?bill_id=202520260SB684" target="_blank">SB 684</a> and <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202520260AB1243" target="_blank">AB 1243</a>), which would task the California Environmental Protection Agency with assessing compensatory fees on fossil fuel companies responsible for more than 1 billion tons of greenhouse gas emissions from 1990 to 2024 for their portion of emissions during that period. Under the Act, the fees would be used for wildfire prevention, solar panel deployment, firefighter assistance, and other climate resilience projects. The Act’s sponsors emphasized the urgent need for this financial accountability for climate impacts in the wake of recent devastating wildfires in Los Angeles that are expected to cost Californians at least $250 billion. [1] The Great Vermont Flood of 2024 came after an already historic flood in the state in 2023. The 2024 flood destroyed over a dozen bridges and 40 homes, damaging over 3,500 acres of farmland and causing more than $15 million of damage to public infrastructure. See, John Goff & Pete Banacos, Extreme Nocturnal Rainfall and Flash Flooding in Vermont’s Northeast Kingdom: 30 July 2024, National Weather Service (Oct. 9, 2024), <a href="https://www.weather.gov/btv/Extreme-Nocturnal-Rainfall-and-Flash-Flooding-in-Vermonts-Northeast-Kingdom-30-July-2024" target="_blank">https://www.weather.gov/btv/Extreme-Nocturnal-Rainfall-and-Flash-Flooding-in-Vermonts-Northeast-Kingdom-30-July-2024</a>; Vermont Requests Federal Assessment of July 10-11 Storms and Flood Damage, Office of Governor Phil Scott (July 13, 2024), <a href="https://governor.vermont.gov/press-release/vermont-requests-federal-assessment-july-10-11-storms-and-flood-damage" target="_blank">https://governor.vermont.gov/press-release/vermont-requests-federal-assessment-july-10-11-storms-and-flood-damage</a>; July 2024 Flood Loss & Damage Survey, Vermont Agency of Agriculture, Food & Markets, (last visited, Feb. 10, 2025), <a href="https://app.powerbigov.us/view?r=eyJrIjoiODg2NWI2ODQtZTEyOC00NTg1LWJjNDAtZTVmYmMwZjc4ZGM2IiwidCI6IjIwYjQ5MzNiLWJhYWQtNDMzYy05YzAyLTcwZWRjYzc1NTljNiJ9" target="_blank">https://app.powerbigov.us/view?r=eyJrIjoiODg2NWI2ODQtZTEyOC00NTg1LWJjNDAtZTVmYmMwZjc4ZGM2IiwidCI6IjIwYjQ5MzNiLWJhYWQtNDMzYy05YzAyLTcwZWRjYzc1NTljNiJ9</a>.[2] United States v. Olin Corp.,107 F.3d 1506 (11th Cir. 1997); United States v. Ne. Pharm. & Chem. Co., 810 F.2d 726 (8th Cir. 1986); Franklin Cnty. Convention Facilities Auth. v. Am. Premier Underwriters, Inc., 240 F.3d 534 (6th Cir. 2001); United States v. Alcan Aluminum Corp., 315 F.3d 179 (2d Cir. 2003).[3] One of the sponsors of New York’s Climate Superfund bill directly stated that the bill was inspired by source attribution research on carbon dioxide and methane emissions attributable to fossil fuel and cement producers. Liz Krueger, Krueger, Dinowitz Introduce Nation-Leading Climate Change Superfund Act, NY State Senate (May 26, 2022). Similarly, Senator Anne Watson of Vermont credited attribution science with reassuring lawmakers that they have an empirical basis for seeking money from large fossil fuel companies. Adam Aton & Lesley Clark, A Superfund from climate? These states are pushing for it, E&E News by Politico (Mar. 6, 2024), <a href="https://www.eenews.net/articles/a-superfund-for-climate-these-states-are-pushing-for-it/" target="_blank">https://www.eenews.net/articles/a-superfund-for-climate-these-states-are-pushing-for-it/</a>.[4] See Letter from Michael S. Giaimo, Northeast Region Director, Am. Petroleum Inst. to Senate President Pro Tempore Philip Baruth and Members of the Senate (Mar. 27, 2024), <a href="https://drive.google.com/file/d/19epd5c5Qyfg1Lk20y1jgCBOyYKqMK22j/view" target="_blank">https://drive.google.com/file/d/19epd5c5Qyfg1Lk20y1jgCBOyYKqMK22j/view</a> (“The bill incorrectly suggests that past emissions attributable to companies can be determined with great accuracy. That is simply not true. At best the state can only estimate emissions; and these estimates are imprecise.”).[5] See the Washington Climate Corporate Data Accountability Act (<a href="https://apps.leg.wa.gov/billsummary/?BillNumber=6092&Year=2023&Initiative=false" target="_blank">WA SB 6092</a>) and two New York bills creating corporate climate disclosure requirements, (<a href="https://assembly.state.ny.us/leg/?bn=S07705&term=2023&Summary=Y&Actions=Y" target="_blank">NY SB 7705</a> and <a href="https://assembly.state.ny.us/leg/?bn=S00897&term=2023&Summary=Y&Actions=Y" target="_blank">NY SB 897</a>/<a href="https://assembly.state.ny.us/leg/?bn=A04123&term=2023&Summary=Y&Actions=Y" target="_blank">AB 4123</a>).

In re Lumber Liquidators Chinese Laminate Litigation

Maxus Energy Corporation

In re Hydroxycut Personal Injury and Class Action Litigation

Los Angeles World Airport (LAWA)

Environmental Law Foundation v. Beech-Nut Nutrition Corp., et al

Fitbit Force Recall 

People of the State of California v. The Coca-Cola Company

Seagate Technology LLC

Clif Bar, Inc.

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Drawing on his considerable experience in environmental health, William (Bill) focuses his practice on environmental and consumer protection law, with an emphasis on climate-related goals and claims, hazardous substances, mass torts, and consumer product safety.

William Tarantino

Drawing on his considerable experience in environmental health, William (Bill) focuses his practice on environmental and consumer protection law, with an emphasis on hazardous substances, mass torts, and consumer product safety.

William F. Tarantino

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Krista deBoer’s practice involves the full range of environmental, climate, and green claims issues. As a partner in MoFo’s Class Actions + Mass Tort practice group, Krista represents clients in environmental and toxic tort litigation, Proposition 65 litigation, and consumer class actions 

Krista S. deBoer

Krista deBoer

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Alice Carli is an associate in MoFo’s Complex Litigation + Advisement Group in the Los Angeles office. 

Alice Carli

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Confidentiality at Risk: California Legislature Considers Bill That Would Limit Scope of Confidentiality in Product Liability and Environmental Cases and Settlements

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USDA Animal and Plant Health Inspection Service (APHIS) <a href="https://www.aphis.usda.gov/news/program-update/aphis-reinstates-notifications-products-biotechnology" target="_blank">announced</a> on January 23, 2025, that it is reinstating its legacy notification procedure as of February 7, 2025, providing a streamlined alternative to permits for regulated genetically engineered (GE) organisms.This change comes in response to a <a href="https://lifesciences.mofo.com/topics/an-insecure-future-court-ruling-guts-usda-regs-on-genetically-engineered-plants" target="_blank">December 2, 2024, ruling</a> by the U.S. District Court for the Northern District of California that struck down the 2020 revisions to APHIS’s biotechnology regulations (“the 2020 Rule”), which had created exemptions for specific categories of GE plants that could otherwise have been developed through conventional breeding techniques. Although it was initially unclear whether the recent amendments to the 2020 Rule, which had added two additional exemptions and became effective on November 13, 2024, were included in the vacatur, APHIS recently acknowledged in a January 28, 2025, court filing that the December ruling also nullified the November 2024 amendments to the 2020 Rule.On January 28, 2025, the Court further ruled that plaintiffs’ remaining two challenges to the Rule (under the Endangered Species Act and the National Environmental Policy Act, respectively, neither of which had been addressed in the initial ruling) are moot in light of the vacatur of the 2020 Rule. With the remaining claims mooted, APHIS could now appeal the case to the 9th circuit to seek reinstatement of the 2020 Rule and its 2024 amendments. As of the publication of this post, APHIS has not publicly announced plans to appeal the ruling. Overview of the Reinstated APHIS Regulatory Process (7 CFR 340 (2019))In order to be regulated by the now-reinstated legacy framework, found in <a href="https://www.ecfr.gov/on/2019-12-31/title-7/subtitle-B/chapter-III/part-340/section-340.1" target="_blank">7 CFR §340.1 (2019)</a> (“the Reinstated Rule”), a GE organism must first be considered a “regulated article.” The Reinstated Rule defines a regulated article as a genetically engineered organism in which “the donor organism, recipient organism, or vector or vector agent belongs to any genera or taxa designated in § 340.2 and meets the definition of plant pest,” or that APHIS otherwise believes to be a plant pest. As discussed in the section below, this definition may not apply to many GE plants being produced today.Under the Reinstated Rule, developers must determine whether their GE plant constitutes a regulated article and is thereby subject to the Reinstated Rule. Developers may request confirmation from APHIS that a GE organism is not subject to the Reinstated Rule via the “<a href="https://www.aphis.usda.gov/biotechnology/am-i-regulated" target="_blank">Am I Regulated</a>?” (AIR) process. This voluntary process allows developers to seek a determination of nonregulated status, meaning that the regulations under 7 CFR part 340 (2019) would not apply to the organism.If the organism is regulated, developers must apply to APHIS for a permit or use the notification procedure in order to import the organism, ship the organism interstate, or release the organism into the environment (including growth in an open field).The <a href="https://www.aphis.usda.gov/biotechnology/biotechnology-permits-notifications" target="_blank">notification procedure</a>, which has been reinstated as of February 7, 2025, allow developers to notify APHIS of their intent to move a regulated article that meets specific criteria, rather than undergoing a full permitting review.CRISPR Gene-Edited Plants May Fall Outside the Scope of APHIS RegulationAlthough the 2020 Rule was explicitly designed to exempt many plants produced using modern gene editing and to streamline the regulatory burdens for GE plants overall, in a surprising twist, the Reinstated Rule appears to be largely inapplicable to many edited plants being developed today, such as many plants developed using CRISPR. The Reinstated Rule was developed at a time in which genetic engineering effectively meant transgenic insertion, and often required use of plant pathogens, but modern methods such as CRISPR increasingly allow for precise, targeted modifications to DNA without the need for the stable integration of foreign DNA from plant pests. Although the 2020 Rule crafted an array of exemptions for plants that contained <a href="https://www.aphis.usda.gov/sites/default/files/confirmation-guide.pdf" target="_blank">specific types of edits</a>, the Reinstated Rule contained no such exemptions, and generally placed a high regulatory burden on developers of organisms that were subject to its provisions.Thus, while observers initially expected the vacatur of the 2020 Rule to yield a return to more stringent regulatory oversight, the rapid expansion and adoption of CRISPR and related techniques over the past five years has made the Reinstated Rule paradoxically more permissive than the 2020 Rule to some types of edits.As discussed above, regulation by APHIS under the reinstated framework centers on whether a GE organism is, or is altered with the use of, a plant pest, as defined by APHIS. A GE organism that is not a plant pest or reasonably likely to be a plant pest and has not been modified to contain foreign DNA is not subject to regulation by APHIS under 7 CFR Part 340.The definition of “regulated article” may leave a regulatory gap for GE plants modified using techniques that do not permanently introduce plant pest components into the plant’s DNA. This is illustrated by APHIS’ response to certain AIR inquiries from before the 2020 rule, which are <a href="https://www.aphis.usda.gov/biotechnology/regulated-article-inquiry" target="_blank">publicly available on APHIS’s website</a>.For example, APHIS’s 2020 response to a Corteva Agriscience inquiry regarding a line of GE corn concluded that the corn line was not a regulated article despite the use of plant pest components in components of the editing process, because the edited corn lines “are not themselves plant pests and no plant pest sequences were integrated into the plant genome of corn.” The corn lines were produced by biolistic introduction of CRISPR-Cas9 components and a repair template to introduce targeted base pair substitutions. Through subsequent reproduction and selection, the final edited corn lines contained the intended base pair substitutions but no unintentionally integrated DNA from the components of the editing process, leading APHIS to conclude that the genome-edited corn lines were not regulated under the Reinstated Rule.The foregoing example and other published 2020-era AIR letters suggest that many CRISPR‑edited plants, particularly those that do not permanently introduce foreign DNA, may fall outside the scope of APHIS regulation altogether. Thus, the vacatur of APHIS’s 2020 and 2024 rules, which exempted many CRISPR-edited GE plants, may not result in a categorical re‑regulation of all those products. However, developers who believe their GE plant may fall outside the scope of the Reinstated Rule will need to self-determine whether their GE plant meets the definition of a regulated article or submit an AIR inquiry to receive a determination from APHIS. If such plants are indeed nonregulated, they may be imported, shipped interstate, and released outside without a permit from APHIS, though other regulations may still apply.We are closely monitoring developments in this area and will continue to share updates.

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Michael Ward