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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Associate

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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FDA Seeks to Phase Out Synthetic Color Additives

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

ICPHSO 2025: CPSC at ICPHSO

ICPHSO 2025: State Regulation in Response to Trump’s Push for Federal Deregulation

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

As subscription models have gained exponential traction, legislatures are clamoring to ensure that their auto-renewal laws keep up with novel consumer protection issues. Several states have introduced or revised their auto-renewal laws, and the Federal Trade Commission has affirmed its commitment to enforce against unlawful offers. Perhaps most notably, California—already a leader in state auto-renewal laws—has significantly amended its law, with the amendments taking effect on July 1, 2022. Other new state requirements took effect on January 1, 2022.To learn more, <a href="https://www.mofo.com/resources/insights/220113-recent-auto-renewal-law-changes.html">read our client alert</a>.

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

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Forgot to Cancel? Pay Attention to Recent Auto-Renewal Law Changes

AMG Capital v. FTC – SCOTUS Strips the FTC of a Critical Enforcement Tool

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As subscription models have gained exponential traction, legislatures are clamoring to ensure that their auto-renewal laws keep up with novel consumer protectio

Forgot to Cancel? Pay Attention to Recent Auto-Renewal Law Changes

The Supreme Court on Monday signaled to the lower courts that they need to seriously consider the impact of TransUnion LLC v. Ramirez, 594 U.S. ___ (2021) when addressing claims for statutory violations that do not result in any injury to the plaintiffs.In 2017, a trial court certified a class of thousands of individuals who received a mortgage with Quicken Loans (now called Rocket Mortgage) from 2004 to 2009, and granted summary judgment in favor of those class members.  The result was a multimillion-dollar judgment against Quicken Loans. And the trial court reached that result despite the Supreme Court’s 2016 ruling in Spokeo v. Robins, holding that a bare procedural violation is insufficient to demonstrate a “concrete and particularized” injury. On Monday, however, the United State Supreme Court undid the judgment and called into question the viability of plaintiffs’ entire case in a mere two sentences:The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of TransUnion LLC v. Ramirez, 594 U.S. ___ (2021).Rocket Mortg., LLC v. Alig, 2022 U.S. LEXIS 156, *1 (Jan. 10, 2022).As we <a href="https://classdismissed.mofo.com/topics/relief-for-the-unharmed-supreme-court-considers-whether-article-III--rule-23-permit-certification-where-most-class-members-are-uninjured-ramirez-v-transunion.html">previously reported</a>, in TransUnion v. Ramirez, the Supreme Court applied Spokeo in the class action context and clarified that (1) a concrete injury is a “physical, monetary, or cognizable intangible harm traditionally recognized as providing a basis for a lawsuit in American courts”; and (2) that the “material risk of harm” alone is typically insufficient to constitute a concrete injury.  Leveraging that decision, Quicken Loans petitioned the Supreme Court to review the Fourth Circuit’s ruling upholding, in large part, the trial court’s almost $10 million judgment and class certification decision.  Quicken Loans argued that, because a significant portion of the class lacked concrete harm, pursuant to TransUnion, the judgment and certification order should be vacated.Indeed, in its order, the Fourth Circuit had acknowledged that there was no evidence that Quicken Loans’ practices caused any harm to the unnamed class members.  Instead, the circuit court concluded that Quicken Loans’ conduct created the risk of harm to class members, and found the risk sufficient for Article III standing for the entire class.But that wasn’t enough for the Supreme Court, which sent the case back to the Fourth Circuit for reconsideration. The High Court’s terse order in Quicken Loans solidifies that the existence of a significant number of unharmed class members can be a hurdle to class certification.  What constitutes a “significant number,” however, remains to be clarified.  Stay tuned for an update when the Fourth Circuit issues a new ruling on remand.

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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High Court Orders Rethink Of $9.7M Award After TransUnion

High Court Orders Rethink Of $9.7M Award After TransUnion

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The Supreme Court on Monday signaled to the lower courts that they need to seriously consider the impact of TransUnion LLC v. Ramirez, 594 U.S. ___ (2021) when 

2021 marked another year of important developments in the TCPA landscape as lower courts issued conflicting interpretations of SCOTUS’s ruling Barr v. AAPC and began to apply the definition of “autodialer” that SCOTUS articulated in Facebook, Inc. v. Duguid. Although defendants swung for the fences in an attempt to argue that AAPC rendered the entirety of the TCPA unenforceable for a five year period and had some initial success, the tide seems to be turning. Similarly, although Duguid provided a narrow definition of an “autodialer”, factual disputes about what satisfies that new definition may still need to be resolved on summary judgment.The Dust Has Not Settled on Whether Defendants Can Be Held Liable for Robocalls Made Between 2015 and July 2020 Following SCOTUS’s Landmark Decision in AAPC.In the wake of the Supreme Court’s decision in Barr v. American Association of Political Consultants, Inc. (“AAPC”), 140 S. Ct. 2335 (2020), lower courts have continued to grapple with the question of whether plaintiffs can assert Telephone Consumer Protection Act (TCPA) claims for conduct occurring between 2015 and July 2020—the time period between when the government-backed debt exception amendment to the TCPA was passed and the date that the Supreme Court declared it unconstitutional. A split among district courts quickly emerged. One line of cases followed an early Eastern District of Louisiana decision, Creasy v. Charter Communications, Inc.<a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html#_ftn1">[1]</a>, in holding that there could be no liability imposed for calls occurring during the contested five-year time period.<a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html#_ftn2">[2]</a> But the majority of district courts declined to adopt Creasy’s reasoning, instead finding that AAPC did not negate the liability of parties that made robocalls during that time period.<a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html#_ftn3">[3]</a>To learn more, read out <a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html">client alert</a>.

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Privacy Litigation 2021 Year in Review: TCPA Litigation

Privacy Litigation 2021 Year in Review: TCPA Litigation

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2021 marked another year of important developments in the TCPA landscape as lower courts issued conflicting interpretations of SCOTUS’s ruling Barr v. AAPC and 

Cyber incidents top the list of issues keeping in-house counsel up at night. And as we continue to see the number of incidents climb, we continue to see class actions filed in their wake. So what are the highlights from 2021 and what can we expect in the coming year?<h4>Class Action Filing Trends</h4>We count 36 major data breach class actions filed this past year, treating multiple cases filed against a single defendant as one major class action.<a href="https://www.mofo.com/resources/insights/220104-privacy-litigation-2021-year-review.html?utm_source=publication&utm_medium=email#_ftn1" class="anchor">[1]</a> This is a significant increase over the 25 major class actions filed last year. Here’s what we are seeing in these cases:Plaintiff’s counsel continue to jockey for position. Plaintiff’s attorneys continue to try to beat others to the courthouse.  In five of the major data breach cases filed, plaintiffs filed the first-filed case within a week of announcement of the breach.  On average, cases were filed within four weeks of the announcement. Three of the cases were the subject of MDL proceedings; 21 of them were consolidated.What was stolen. In 26 cases, plaintiffs alleged exfiltration of social security numbers, significantly more than the number of cases we saw last year. Last year, the majority of cases concerned allegedly compromised payment card information. This kind of information allegedly was compromised in about one-third of the cases this year, and about half of the cases concerned alleged exfiltration of sensitive medical data.Who was impacted. As compared to 15% of the cases last year, plaintiffs in about one-third of the cases this year were employees. The rest of the plaintiffs were customers, patients, or account holders.Novel liability theories. We saw further evolution of plaintiff’s counsel’s theories in the last year. In a suit filed in response to the Colonial Pipeline ransomware attack, for example, plaintiff alleges that consumers and gas station owners were harmed by increased gas prices as a result of the company’s negligence.<a href="https://www.mofo.com/resources/insights/220104-privacy-litigation-2021-year-review.html?utm_source=publication&utm_medium=email#_ftn2" class="anchor">[2]</a> And a federal court in Los Angeles followed other courts in rejecting plaintiff’s theory that the value of his personal information decreased due to the breach.<a href="https://www.mofo.com/resources/insights/220104-privacy-litigation-2021-year-review.html?utm_source=publication&utm_medium=email#_ftn3" class="anchor">[3]</a>To learn more, read our <a href="https://www.mofo.com/resources/insights/220104-privacy-litigation-2021-year-review.html">client alert</a>.

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Privacy Litigation 2021 Year in Review: Data Breach Litigation

Privacy Litigation 2021 Year in Review: Data Breach Litigation

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Cyber incidents top the list of issues keeping in-house counsel up at night. And as we continue to see the number of incidents climb, we continue to see class a

A split panel of the Ninth Circuit vacated in part a <a href="https://elc.mofo.com/topics/Federal_Court_Preliminarily_Enjoins_the_Attorney_General_from_Enforcing_AB_51.html">preliminary injunction</a> barring enforcement of AB 51, the California law banning mandatory employment arbitration agreements.[1]  But the Ninth Circuit found that the penalties for violation of this provision are preempted by the Federal Arbitration Act (FAA), so the enforcement path remains unclear.Read the original blog post <a href="https://elc.mofo.com/topics/Not-so-fast-ninth-circuit-resurrects-ban-on-mandatory-employment-arbitration-agreements.html">here</a>.

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Not So Fast: Ninth Circuit Resurrects Ban On Mandatory Employment Arbitration Agreements

Not So Fast: Ninth Circuit Resurrects Ban On Mandatory Employment Arbitration Agreements

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A split panel of the Ninth Circuit vacated in part a preliminary injunction barring enforcement of AB 51, the California law banning mandatory employment arbitr

Erin Bosman has been named “Product Liability Lawyer of the Year.”  This award recognizes high achieving female lawyers and progressive law firms who best support women in law.Co-Chair of MoFo’s Class Actions and Mass Torts Group, Erin defends clients in high-stakes mass tort litigation and navigates them through complex, company-threatening product liability crises. Clients count on her to protect their brands and turn to her as their trusted advisor. Erin has long championed women in the legal profession and serves as mentor, sponsor, and advisor to countless women both within and outside the firm.Morrison & Foerster has also been recognized for the “Gender Diversity International Law Firm” award and was named “Firm of the Year for the U.S. – Northeast Area,” demonstrating MoFo’s commitment to advancing gender diversity in the law.

Erin Bosman Named Product Liability Lawyer of the Year by Euromoney in Americas Women in Business Law Awards

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Erin Bosman Named Product Liability Lawyer of the Year by Euromoney in Americas Women in Business Law Awards

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Erin Bosman has been named “Product Liability Lawyer of the Year.”  This award recognizes high achieving female lawyers and progressive law firms who best suppo

Legal 500 US 2021 has recommended Erin Bosman, David Fioccola, and Jessica Grant, and named Julie Park among its “next generation” practitioners. The publication also recognized Morrison & Foerster as a top firm in Product Liability, Mass Tort and Class Action (Defense) for Pharmaceuticals and Medical Devices. See what our clients and peers are saying about MoFo’s Class Actions + Mass Torts Group.<div class="embedded-entry redactor-component block-entry" type="entry" data-sys-entry-uid="blt4fafbbc19c76d8c0" data-sys-entry-locale="en-us" data-sys-content-type-uid="image_content" sys-style-type="block"><div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blta6cc7bd9d3d54bb0/627315e24d9f89297129017b/07_01_legal500-tier3_productliability_infographic_150dpi_v6.jpg?format=auto&amp;quality=60" alt="Product Liability Infographic"></div></div>

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Morrison & Foerster Achieves Top Ranking in Product Liability, Mass Torts and Class Action (Defense) for Pharmaceuticals and Medical Devices

Legal 500 US 2021 has recommended Erin Bosman, David Fioccola, and Jessica Grant, and named Julie Park among its “next generation” practitioners. The publicatio

Morrison & Foerster Achieves Top Ranking in Product Liability, Mass Torts and Class Action (Defense) for Pharmaceuticals and Medical Devices

Legal 500 US 2021 recognized Morrison & Foerster as a top firm in Advertising and Marketing Litigation. See what our clients and peers are saying about MoFo’s Class Actions + Mass Torts Group.<img class="img-responsive" src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt5afe385619175981/627315e123c6cf2a1c3af543/210719-legal-500-advertising-infographic.jpg?format=auto&quality=60" alt="Legal 500 Infographic - Advertising and Marketing Law" type="asset" sys-style-type="download">

Morrison & Foerster Achieves Top Ranking in Advertising and Marketing Litigation

Legal 500 US 2021 recognized Morrison & Foerster as a top firm in Advertising and Marketing Litigation. See what our clients and peers are saying about MoFo’s C

Morrison & Foerster Achieves Top Ranking in Advertising and Marketing Litigation

Nine months ago, we discussed several issues that had been raised by COVID-19 face mask-related litigation.[1] Soon after, COVID-19 infection rates spiked to unprecedented levels. But with the emergency use authorization of three COVID-19 vaccines in the United States, the state of the pandemic has drastically changed during the first half of 2021. Vaccines are now widely available for people 12 years of age and older, and infection rates have drastically declined across the United States as a result.With months of real-world data showing the safety and efficacy of the Moderna, Pfizer, and Johnson & Johnson vaccines in hand, the CDC issued Interim Public Health Recommendations for Fully Vaccinated People (“CDC Interim Recommendations”) on May 13, 2021, which has changed the way people are thinking about masks. The CDC Interim Recommendations have also prompted a range of reactions from companies and employers and impacted mask-related disputes in the courts. This post provides an overview of these recent developments, which businesses and employers would be wise to keep in mind.Read our client alert <a href="https://www.mofo.com/resources/insights/210709-a-return-to-normalcy.html?utm_source=publication&utm_medium=email">here</a>.

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Of Counsel

Lloyd W. Aubry, Jr. is a member of our Employment and Labor Group. Lloyd’s practice encompasses all aspects of employment and labor law, including litigation and counseling.

Lloyd Aubry

Lloyd Aubry’s practice encompasses all aspects of employment and labor law, including litigation and counseling. He represents public and private clients in a variety of matters relating to wage and hour law, employment discrimination, wrongful discharge, safety and health issues, and National Labor Relations Act (NLRA) issues. Mr. Aubry represents clients before administrative agencies and in state and federal court. A significant part of his practice involves expert testimony and consulting on issues relating to the Department of Industrial Relations. In this capacity, he has served for both employers and employees.

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Michael Ahern is an associate in the Litigation Department of Morrison Foerster’s New York office.
Prior to joining Morrison Foerster, Mr. Ahern clerked for the Honorable Eileen Bransten in the Comm