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.

Social

Search

Editors

hunt_adam_blog_150x150.png

hunt_adam_common_640x280.jpg

hunt_adam_heroretina_2700x1160.jpg

hunt_adam_mobileretina_750x1040.jpg

hunt_adam_social_600x600.jpg

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.

preece_alex_blog_150x150.png

preece_alex_common_640x280.jpg

preece_alex_heroretina_2700x1160.jpg

preece_alex_mobileretina_750x1040.jpg

preece_alex_social_600x600.jpg

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).

preovolos_penelope_blog_150x150.png

preovolos_penelope_common_640x280.jpg

preovolos_penelope_heroretina_2700x1160.jpg

preovolos_penelope_mobileretina_750x1040.jpg

preovolos_penelope_social_600x600.jpg

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.

newman_zak_blog_150x150.png

newman_zak_common_640x280.jpg

newman_zak_heroretina_2700x1160.jpg

newman_zak_mobileretina_750x1040.jpg

newman_zak_social_600x600.jpg

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.

hokanson_mitchell_blog_150x150.png

hokanson_mitchell_common_640x280.jpg

hokanson_mitchell_heroretina_2700x1160.jpg

hokanson_mitchell_mobileretina_750x1040.jpg

hokanson_mitchell_social_600x600.jpg

Mitchell Hokanson

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

Morrison Foerster’s Class Dismissed blog provides insights and reports on the latest news, developments, and trends that affect consumer-facing companies. Subscribe to receive the latest updates by attorneys from our nationally recognized Consumer Class Action and Product Liability practices.

Welcome to Class Dismissed

class-dismissed-welcome-image.jpeg

class-dismissed-welcome-image

Morrison Foerster’s Class Dismissed blog provides insights and reports on the latest news, developments, and trends that affect consumer-facing companies. 

Class Action

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry.

MoFo Tech

Equips our clients with the most up-to-date and relevant information on employment and labor law issues.

Employment Law Commentary

Stay on top of emerging issues and stay informed of developments related to the law and business of social media.

Socially Aware

In-depth analysis of developments and trends impacting government contracting.

Government Contracts Insight

The latest news and insights from the nationally recognized Consumer Class Action and Product Liability practices of Morrison & Foerster.

Class Dismissed

  Linkedin

MoFo LinkedIN

Class Dismissed Blog - RSS

Stay Connected

By submitting your data to subscribe to this blog, you approved Morrison & Foerster LLP to email you future information about MoFo news and events. You may opt-out at any time by sending a request to <a href="mailto:mofonews@mofo.com">mofonews@mofo.com</a>. To learn more about how Morrison & Foerster LLP uses and protects your personal data, please view our <a href="https://www.mofo.com/about/privacy-policy.html">Privacy Policy</a> at <a href="https://www.mofo.com/">www.mofo.com</a>.

Never miss a post from Class Dismissed. Enter your email below to stay up-to-date.

Subscribe

Class Action and Product Insights for Your Business

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

TCPA

Announcements & Press

Antitrust

Appellate & Supreme Court

Arbitration

Autonomous Vehicles & Robotics

Aviation & Drones

Class Certification

Consumer Products

Coronavirus (COVID-19)

CPSC

Drug & Medical Device

Emergency Use Authorization (EUA)

Environmental Law

False Advertising

FCRA

Food Misbranding

Government Actions

Internet of Things

Mass Torts

Pharmaceutical & Medical Devices

Privacy

Product Liability

Public Readiness and Emergency Preparedness Act (PREP Act)

Retail

Trials

Topics

Blog - Editors

Blog - About

About

Blog - Subscribe

Adam J. Hunt

More

Alexandra Preece Barlow

Mitchell A. Hokanson

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.

JD Supra has recognized Morrison & Foerster as part of its Readers’ Choice Awards. The Awards recognize top authors and firms whose articles were read by C-suite executives, in-house counsel, media, and other professionals across the JD Supra platform during 2020. Erin Bosman, co-chair of the Class Actions + Mass Torts practice group, and Julie Park, editor of Class Dismissed, were each named “Top Authors” in the Product Liability category.On the Product Liability front, both have focused on the <a href="https://www.mofo.com/resources/news/210107-product-liability-and-whats-next.html">impact of the pandemic</a>, as well as <a target="_blank" href="https://classdismissed.mofo.com/topics/consumer-product-safety-enforcement-heat-up-biden-administration.html">consumer product safety enforcement updates under the Biden administration.</a> Erin has also been sharing insight on <a href="https://www.mofo.com/resources/insights/210210-ai-machine-learning-manipulation.html">artificial intelligence</a> as it relates to product liability.Additionally, James Koukios and Charles Duross’ article titled “<a href="https://www.mofo.com/resources/insights/200813-top-10-anti-corruption.html">Top 10 International Anti-Corruption Developments for July 2020” </a>was noted as a Top Read Article for Compliance by JD Supra in 2020.JD Supra editors chose the 28 main topics covered in this year’s Readers’ Choice Awards for their timeliness as well as their proven, ongoing importance. In each category, the publication recognized 10 authors and one firm for consistently highest readership and engagement within that category for all of 2020. In total, across all categories, JD Supra recognized the excellence and achievement of 265 authors selected from over 58,000 who publish their work on its platform.Read more about the <a target="_blank" href="https://www.mofo.com/resources/news/210331-jd-supra-readers-choice-awards-2021.html">2021 Readers’ Choice Awards</a>.

Fertility Center Litigation

Fitbit

MicroPort

Leading Healthcare, Pharmaceutical, and Medical Device Company

Lethal Injection Matters – Major Pharmaceutical Company

Pain Pump Matters – Large Pharmaceutical Company

Major Technology Company

Leading Chemical Company

Security Device Company

In re Air Crash Near Peixoto de Azevedo, Brazil

bosman_erin_blog_150x150.png

bosman_erin_common_640x280.jpg

bosman_erin_heroretina_2700x1160.jpg

bosman_erin_mobileretina_750x1040.jpg

bosman_erin_social_600x600.jpg

Co-Chair, Litigation Department

Erin Bosman is the global co-chair of Morrison Foerster’s litigation department. Erin is also the founder and co-head of the Artificial Intelligence group and former chair of the Complex Litigation + Advisement practice group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin M. Bosman

Erin Bosman is the Global Co-Chair of Morrison Foerster’s Litigation Department. Erin is also the founder and co-head of the Artificial Intelligence Group and former chair of the Complex Litigation + Advisement Practice Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin Bosman

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

park_julie_blog_150x150.png

park_julie_common_640x280.jpg

park_julie_heroretina_2700x1160.jpg

park_julie_mobileretina_750x1040.jpg

park_julie_social_600x600.jpg

Julie Park provides analytic and strategic counsel for issues in product life cycle, product liability and defective products, consumer class actions, and more.

Julie Park

Julie Park | Product Liability Lawyer

Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

badge-author-large1.png

Erin Bosman and Julie Park Receive "Readers' Choice" Awards 2021

Erin Bosman and Julie Park Receive "Readers' Choice" Awards 2021

badge-author-large.png

badge-author-large

JD Supra has recognized Morrison & Foerster as part of its Readers’ Choice Awards. The Awards recognize top authors and firms whose articles were read by C-suit

Class certification is often discussed as a “stage” of litigation, but the Second Circuit’s recent decision in Jin v. Shanghai Original, Inc. et al<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn1">[1]</a> is a good reminder that, even after a class is certified, class treatment must remain appropriate throughout the litigation. In Jin, the Second Circuit upheld the decertification of a class after “red flags” alerted the court that plaintiffs’ counsel was no longer serious about taking the case to trial. The opinion is particularly significant in practice areas where settlement is the expectation and trial the exception—and it provides a roadmap for defense counsel contemplating a motion to decertify if class counsel does not remain diligent. Whether to do so may depend on the case. A class decertified for counsel’s failures of representation may just be scooped up and reasserted by a different (and more adequate) lawyer. But in cases with serious proof problems, class decertification on adequacy grounds may effectively end the litigation. Case BackgroundIn Jin, employees of Joe’s Shanghai restaurants<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn2">[2]</a> sued the restaurant chain in federal court in New York, alleging wage and hour violations under New York Labor Law (“NYLL”) and the Fair Labor Standards Act.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn3">[3]</a>  The district court certified a class of employees at a single location for the NYLL claims only under Rule 23(b)(3),<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn4">[4]</a> and appointed John Troy of Troy Law, PPLC as class counsel.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn5">[5]</a>  The case then proceeded toward trial.Just five days before trial was scheduled to start, however, the district court sua sponte decertified the class, holding that the representation provided by class counsel was no longer adequate.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn6">[6]</a>  The district court noted “numerous red flags” over the preceding months, including class counsel’s failure to investigate their own claims that defendants had induced class members to opt out and repeated failure to submit a joint pretrial order that complied with the judge’s practice requirements.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn7">[7]</a>  When class counsel submitted a revised witness list shortly before trial, it became apparent that class counsel planned to call only two class members to testify.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn8">[8]</a>  The district court deemed this pretrial submission a “significant intervening event” triggering decertification.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn9">[9]</a>  In particular, the district court noted that the rights of absent class members would be put in jeopardy where the relevant payroll and other pay-related records no longer existed, making “substantial testimony critical to plaintiffs’ class claim.”<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn10">[10]</a>The Second Circuit’s DecisionThe Court of Appeals affirmed, holding that the trial court acted within its discretion because class counsel’s conduct made clear that “counsel was no longer adequately representing the class.”<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn11">[11]</a>  The court explained, “Rule 23(g) requires courts to consider several criteria, including counsel’s efforts investigating the claims, experience with class actions, knowledge of the area of law, and resources.”<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn12">[12]</a> Further, the Court of Appeals made clear that trial courts do not require a “significant intervening event” to decertify a class that no longer meets the requirements of Rule 23, reversing a handful of district court decisions to the contrary.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn13">[13]</a>  A court may—and should—decertify sua sponte whenever it determines that a class falls short of the requirements, including where class counsel’s representation of absent class members is deficient. This decision reinforces the trial court’s oversight role in class action litigation, and clarifies that class counsel’s representation from beginning to end must meet the standards of Rule 23 in order to maintain class certification. Notably, however, the Court specifically left open the question of what standard applies if a defendant moves to decertify a class, noting that “[b]ecause the issue of whether a significant intervening event or a similar type of showing might be appropriate when a defendant moves to decertify is not before us, we do not address this issue.”<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn14">[14]</a>TakeawaysThe Second Circuit’s decision is reassuring for defense counsel when facing opportunistic or incompetent class counsel. By building a record of unprofessional behavior, defense counsel has recourse to the court to seek decertification of the class, regardless of the standard that applies to such motions. Indeed, even though the decision does not explicitly resolve the governing standard in the Second Circuit for motions to decertify, it is a reminder that defendants can move to decertify a class at any point during the litigation if they amass evidence that the class no longer satisfies the requirements of Rule 23. Seeking decertification on the basis of class counsel’s performance may not be the right strategy in every instance—for instance, where another firm is likely to step in to prosecute the case. But a motion to decertify on the basis of inadequate representation may prove a useful tool where there are serious issues that render the claims unattractive to plaintiffs’ counsel—like the problems of proof in Jin.    <a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref1">[1]</a>   No. 19-3782, slip op. (2d Cir. March 9, 2021).<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref2">[2]</a>  The authors and editor wish to disclose the consumption of a significant number of soup dumplings.  They are very good, but are best not eaten over a computer keyboard.  Views regarding soup dumplings are our own and are not the views of Morrison & Foerster LLP.  <a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref3">[3]</a>Id. at 4; Jin v. Shanghai Original, Inc., No. 16-CV-5633 (ARR) (JO), 2019 WL 11816612 (E.D.N.Y. July 10, 2019). <a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref4">[4]</a>   The district court retained supplemental jurisdiction over the state law claims without discussion.  No. 19-3782, slip op. at 3 n.1.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref5">[5]</a>Id. at 4; 2019 WL 11816612 at *1.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref6">[6]</a>   2019 WL 11816612 at *1.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref7">[7]</a>Id. at *3 (counsel finally submitted a pretrial order that only “substantially complied” with the judge’s practice rules).<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref8">[8]</a>Id. at *2.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref9">[9]</a>Id. at *3.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref10">[10]</a>Id. at *2 n.4.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref11">[11]</a>   No. 19-3782, slip op. at 24. <a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref12">[12]</a>Id. at 5.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref13">[13]</a>Id. at 22.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref14">[14]</a>Id. at 23 n.18.

kaufman_jessica_blog_150x150.png

kaufman_jessica_common_640x280.jpg

kaufman_jessica_heroretina_2700x1160.jpg

kaufman_jessica_mobileretina_750x1040.jpg

kaufman_jessica_social_600x600.jpg

Jessica’s practice focuses on complex civil litigation, with an emphasis on class action, financial services litigation and enforcement, and commercial disputes. Recent representative matters include the defense of a leading marketplace lender in a putative nationwide class action under state usury laws; a major consumer products company in multidistrict antitrust litigation; a

Jessica Kaufman

Jessica’s practice focuses on complex civil litigation, with an emphasis on class action, financial services litigation and enforcement, and commercial disputes. Recent representative matters include the defense of a leading marketplace lender in a putative nationwide class action under state usury laws; a major consumer products company in multidistrict antitrust litigation; a professional services firm in a malpractice action; a lingerie company facing consumer protection claims, including claims of false advertising; and financial institutions facing claims under the federal and state contract and antitrust laws, RICO Act, Right to Financial Privacy Act, Fair Debt Collection Practices Act, and state unfair and deceptive practices statutes. She also regularly advises and represents clients in complex commercial disputes.What do you like best about your work? Our work is our role as problem solvers. As litigators, we help clients address immediate problems. But when we know our clients and their businesses well, our clients also turn to us for longer term advice, to help identify issues before they arise, and think about how to do things better.What do you enjoy doing in your free time? I try to work with my hands. I started learning wheel-thrown pottery last year and enjoy forcing my family and friends to accept impractically shaped mugs, not just at Christmas, but — lucky for them — all year long.How do you see your practice changing in the next few years? I see my practice including more state AG enforcement work in the years ahead. The regulatory environment for our financial services clients is poised to change dramatically at the federal level; active AGs in New York and California will see that as an opportunity to fill the void.

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.

employment-law-blog-promo-tile2.jpg

Second Circuit Affirms Class Decertification Based on Inadequate Representation

Second Circuit Affirms Class Decertification Based on Inadequate Representation

employment-law-blog-promo-tile1.jpg

employment-law-blog-promo-tile1

Class certification is often discussed as a “stage” of litigation, but the Second Circuit’s recent decision in Jin v. Shanghai Original, Inc. et al[1] is a good

The United States Supreme Court has repeatedly declined to resolve a question that has sharply divided the Circuits: whether a class may be certified even though it contains uninjured members. See e.g., Tyson Foods, Inc. v. Bouaphakeo et.al., 136 S. Ct. 1036, 1050 (2016). On March 30, 2021, the Supreme Court heard argument on related issues in TransUnion LLC v. Ramirez, No. 20-297, a case with potentially significant implications for parties embroiled in class action lawsuits.The question certified by the Supreme Court was: “Whether either Article III or Federal Rule of Civil Procedure 23 permits a damages class action when the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.”Case BackgroundRamirez v. TransUnion arose in 2011, when Sergio Ramirez visited a California car dealership with his wife and father-in-law looking to buy a car. The dealership pulled Mr. Ramirez’s credit report and informed him that they could not sell him a car because Mr. Ramirez’s name was on a “terrorist list.” Mr. Ramirez’s TransUnion credit report indicated that Mr. Ramirez’s name was a match to one listed on a database maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), which identifies terrorists, individuals who pose threats to national security, and international drug or weapons traffickers. Mr. Ramirez was “embarrassed, shocked, and scared.”The next day, Mr. Ramirez requested a copy of his credit report and received two separate mailings from TransUnion: the first mailing included his credit file along with a summary of rights required by law, and the second was a letter, unaccompanied by an additional summary of rights, alerting Mr. Ramirez that his name “is considered a potential match to information listed on the [OFAC] database.” After receiving the mailings, and out of an abundance of caution, Mr. Ramirez cancelled an upcoming vacation. Mr. Ramirez brought suit against TransUnion, alleging three violations of the Fair Credit Reporting Act (“FCRA”). Mr. Ramirez alleged that TransUnion failed to maintain reasonable procedures to assure maximum possible accuracy of the information about him when preparing a consumer report, violated obligations to consumers to provide “all” information upon request (because the OFAC information came to him in a separate mailing) and violated its obligation to provide consumers with a summary of their rights. The Northern District of California certified the case as a class action that included everyone who, in a six-month period, requested and received a copy of their credit report, sent in two contemporaneous but separate mailings, and showing that the individual’s name was a potential match to a name on the OFAC list.At trial, the jury heard only Mr. Ramirez’s story. Mr. Ramirez introduced no evidence that anyone else in the class suffered a credit denial or other adverse consequence as a result of the OFAC name-match appearing on their credit report. Mr. Ramirez stipulated that more than 75% of the members of the class never even had a credit report showing a potential name match disseminated to a third party during the relevant class period. Nevertheless, the jury found for the class on all claims and awarded statutory and punitive damages totaling over $60 million.On appeal, a divided Ninth Circuit held for Mr. Ramirez and found that the entire class had standing, because the “material risk of harm” conferred standing on even the members of the class whose credit reports were not disseminated to third parties.The Written ArgumentsIn the weeks prior to the Supreme Court argument, TransUnion, Mr. Ramirez and a number of amici — including the Chamber of Commerce — submitted briefs to the court.TransUnion argued that the lower court erred in certifying the class for at least two reasons. First, uninjured class members did not have Article III standing, as there was no evidence that any class member other than Mr. Ramirez even opened and read the mailings from TransUnion, let alone experienced any injury on account of information in the mailings regarding an OFAC name match. Second, TransUnion argued that Mr. Ramirez was an atypical class member with a uniquely sympathetic experience, as compared to other class members who TransUnion alleged “suffered at most a technical violation and some minor confusion in the privacy of their own homes.”Mr. Ramirez argued that all class members were injured because all members suffered a material risk of harm given that TransUnion made the reports available to creditors and employers and the OFAC information in the reports was both highly sensitive and distressing in nature. Furthermore, Mr. Ramirez argued that he was typical of the class as defined and that it was of no consequence that he suffered additional concrete harm as a result of TransUnion’s mailings.  The Chamber of Commerce submitted a brief in support of TransUnion, arguing that the uninjured class members lacked Article III standing and Mr. Ramirez was atypical of the class. As argued by the Chamber of Commerce, “an affirmance [of the Ninth Circuit’s holding] would embolden [enterprising] lawyers to seek out atypical clients in order to leverage their uniquely sympathetic experiences into a multimillion-dollar damages award or settlement — all based on technical statutory violations and all without having to show that the class they represent has suffered concrete injuries that the members could have brought in court themselves.” In such a scenario, an atypical plaintiff pursuing statutory damages may be able to garner a remedy disproportionate to the actual harm suffered by the vast majority of the class.  The Oral ArgumentsAt oral argument, the Justices took up the issues of whether, given that the majority of class members never had their credit reports disseminated to third parties, the class should have been certified, and whether Mr. Ramirez was typical of the class.Justices Alito, Gorsuch, Kavanaugh, and Barrett signaled skepticism toward the idea that class members whose credit reports were not disseminated had Article III standing, given that they may not have even known that their credit reports contained an OFAC alert, let alone suffered consequences akin to those suffered by Mr. Ramirez. As argued by counsel for TransUnion, members of the class whose credit reports were not disseminated should have “brok[en] out the champagne, not [broken] out a lawsuit.” Similarly, Justice Barrett asked whether, for these class members, there had been “no harm, no foul,” and Justice Kavanaugh analogized that “inaccurate information [fell] into a database,” but didn’t make a sound.Chief Justice Roberts offered potentially conflicting observations on the standing issue. He opined that class members whose credit reports were not disseminated had “sufficient standing to at least [clear their credit reports] up,” even if their “damages aren’t terribly significant . . .” However, he also asked what the concrete injury would be in a hypothetical case where Congress passed a law providing statutory damages to anyone driving within a quarter mile of a drunk driver but a suit was brought by a plaintiff who, for days, was unaware of his or her proximity to the drunk driver. Justice Thomas took a different approach, asking simply whether counsel for Mr. Ramirez agreed that all members of the class were required to have standing; counsel conceded that they were.Although most of the Justices focused primarily on the injury and standing questions, Justices Breyer and Sotomayor focused their questions on typicality. While they suggested that Mr. Ramirez’s claims were typical of the class, the two Justices noted that if TransUnion believed Mr. Ramirez’s injuries to be atypical, TransUnion should have so argued at trial, where the jury heard only from Mr. Ramirez. Assistant Solicitor General Nicole Reaves similarly honed in on typicality, arguing that all class members had standing, but that the Court should remand the case for a determination of whether Mr. Ramirez’s injuries were (and therefore Mr. Ramirez was) typical of the class.ImplicationsTransUnion presents an extreme case—the vast majority of class members arguably suffered no injury, while the named plaintiff suffered atypical and significant injury. Of broader interest, however, the Court’s decision may offer insight into how the Court as presently constituted will approach the issue of standing and class certification for uninjured class members. TransUnion may also address for the first time 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.

Energy Drink Manufacturer

Consumer Electronics MDL

Computer Power Management System Litigation

Run Them Sweet, LLC v. CPA Global Limited

Online Billing Practices Class Action

Lipitor Antitrust Litigation

American Booksellers Association v. Barnes &amp; Noble, Inc.


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 pro

Penelope Preovolos

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

vetesi_claudia_blog_150x150.png

vetesi_claudia_common_640x280.jpg

vetesi_claudia_heroretina_2700x1160.jpg

Claudia M. Vetesi

Relief for the Unharmed: Supreme Court Considers Whether Article III & Rule 23 Permit Certification Where Most Class Members are Uninjured (Ramirez v. TransUnion)