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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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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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.

If a company enters an arbitration agreement with a consumer, can its future affiliate companies enforce the arbitration agreement even though the affiliate relationship did not exist at the time the consumer signed the agreement? The Ninth Circuit recently answered “no” in Revitch v. DIRECTV, LLC, __ F.3d __, 2020 WL 5814095 (9th Cir. Sept. 30, 2020), creating a split with the Fourth Circuit. The plaintiff, Jeremy Revitch, alleged that DIRECTV, a satellite television services company, placed prerecorded telemarketing calls to his mobile phone without his consent and in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). He filed a class action complaint against DIRECTV in 2018. Revitch did not have a service agreement with DIRECTV. He did, however, have a contract for mobile phone wireless services with AT&T Mobility LLC (“AT&T Mobility”) that contained an arbitration agreement, which he entered in 2011. The arbitration agreement provided that “AT&T [Mobility] and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to . . . claims arising out of . . . any aspect of the relationship between us, whether based in . . . statute . . . or any other legal theory.”  2020 WL 5814095, at *11. The contract’s definition of AT&T Mobility included all “affiliates.” Id. at *2. AT&T Mobility and DIRECTV became “affiliates” (i.e., companies under common ownership) in 2015 when AT&T Mobility’s parent company, AT&T, Inc., acquired DIRECTV. Accordingly, DIRECTV moved to compel arbitration of Revitch’s complaint pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1–16 (“FAA”). The district court denied the motion on the ground that the arbitration agreement between Revitch and AT&T Mobility did not reflect the parties’ intent to arbitrate his claim against DIRECTV. DIRECTV appealed.The Ninth Circuit affirmed, holding that a valid agreement to arbitrate did not exist between Revitch and DIRECTV, a satellite television company that became an affiliate of AT&T Mobility three years after Revitch signed the wireless services contract containing the arbitration agreement. 2020 WL 5814095, at *5. The court reasoned that “absurd results follow from DIRECTV’s preferred interpretation,” which would require Revitch “to arbitrate any dispute with any corporate entity that happens to be acquired by AT&T, Inc., even if neither the entity nor the dispute has anything to do with providing wireless services to Revitch—and even if the entity becomes an affiliate years or even decades in the future.” Id. at *4. It thus affirmed based on its application of California’s “absurd results” canon of contract construction.   Judge O’Scannlain penned a concurring opinion, suggesting that even if the court analyzed the issue in terms of whether the arbitration clause in Revitch’s contract with AT&T Mobility encompassed his TCPA claim against DIRECTV, rather than asking whether a valid agreement to arbitrate exists between Revitch and DIRECTV, the court still would deny DIRECTV’s motion to compel arbitration. Judge O’Scannlain reasoned that, under the FAA, the claim to be settled by arbitration “must be one ‘arising out of’ the contract or transaction. By negative implication, the FAA does not require the enforcement of an arbitration clause to settle a controversy that does not arise out of the contract or transaction.” 2020 WL 5814095, at *7. Because, in his view, Revitch’s TCPA suit based on allegedly unsolicited advertisements for DIRECTV’s satellite television services is unrelated to Revitch’s contract for wireless services with AT&T Mobility, the suit does not “aris[e] out of” the contract and is not subject to the FAA. Id. at *10.Judge Bennett dissented, explaining that because “[n]either party disputes the existence and validity of the arbitration clause on which DIRECTV . . . relies,” the issue before the court is not one of contract formation, but one of scope: “‘whether the agreement encompasses the dispute at issue.’” Id. (citation omitted). In his view, “affiliates” includes DIRECTV because “[n]othing in the arbitration clause or in the dictionary definition of the word ‘affiliate’ confers any type of temporal scope to the term so that ‘affiliates’ should be read to refer only to present affiliates.” Id. at *11. “Because Revitch agreed to arbitrate ‘all disputes and claims,’” DIRECTV may compel arbitration under the agreement. Judge Bennett further noted that, “[e]ven if some ambiguity exists,” Supreme Court precedent would require the court to construe the agreement to apply to future affiliates and enforce the arbitration clause. Id. at *10 (citing Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1418 (2019) (“[A]mbiguities about the scope of an arbitration agreement must be resolved in favor of arbitration.”)). He further reasoned that the majority’s application of California’s “absurd results” canon disfavors arbitration agreements compared to other contracts and, therefore, contravenes the Supreme Court’s precedent in AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 341–42 (2011). 2020 WL 5814095, at *13.The Ninth Circuit’s decision creates a circuit split on this issue. Just two months ago, in a case involving substantially similar facts and the same arbitration clause, the Fourth Circuit concluded that the consumer-plaintiff formed an agreement to arbitrate with DIRECTV and that her TCPA claim “fit within the broad scope of that agreement, construed, as it must be, to favor arbitration.” Mey v. DIRECTV, LLC, 971 F.3d 284, 286 (4th Cir. 2020). Like Judge Bennett’s dissent, the Fourth Circuit concluded that the arbitration agreement “contains no explicit limitation on the term [affiliates],” and the term’s ordinary meaning includes present and future affiliates. Id. The Fourth Circuit thus concluded that plaintiff Mey formed an agreement to arbitrate with DIRECTV. Further, considering the arbitration agreement’s broad language (i.e., requiring arbitration of “all disputes and claims between us”), and applying the presumption in favor of arbitrability, the court concluded it must enforce the arbitration agreement. Id.Practice Pointers to Takeaway<ul><li>A company’s ability to rely on an arbitration clause in a later-acquired affiliate’s service agreement with a consumer will depend on the jurisdiction. Courts within the Fourth Circuit may enforce such arbitration agreements where the companies did not become affiliates until after the agreement was entered, while courts within the Ninth Circuit may not. It remains to be seen how other circuits will come out. </li></ul><ul><li>Companies should consider drafting arbitration clauses to cover future affiliates and subsidiaries expressly, since the Ninth Circuit opined that “[h]ad the wireless services agreement stated that ‘AT&T’ refers to ‘any affiliates, both present and future,’ we might arrive at a different conclusion.” Revitch, 2020 WL 5814095, at *4 (emphasis added).</li></ul><ul><li>In courts within the Ninth Circuit, all things being equal, a company’s future “successors” or “assignees” likely would have an easier time enforcing an arbitration agreement than a future “affiliate” would since an arbitration agreement’s reference to a “successor” or “assignee” necessarily contemplates an unknown future event. This is something to keep in mind when structuring acquisitions.</li></ul><ul><li>Finally, the court may have reached a different outcome if either DIRECTV or its dispute with Revitch had been materially related to the services provided under Revitch’s wireless services agreement with AT&T Mobility. In that regard, the enforcement of an arbitration agreement by an after-acquired affiliate likely is not entirely foreclosed in the Ninth Circuit.</li></ul>

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Does a Consumer Arbitration Agreement Apply to a Company’s Future Affiliates? The Ninth and Fourth Circuits Disagree

Does a Consumer Arbitration Agreement Apply to a Company’s Future Affiliates? The Ninth and Fourth Circuits Disagree

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If a company enters an arbitration agreement with a consumer, can its future affiliate companies enforce the arbitration agreement even though the affiliate rel

The Supreme Court heard roughly an hour of oral argument on Wednesday in a pair of cases against Ford Motor Company raising important questions about the scope of personal jurisdiction. In Ford Motor Co. v. Montana Eighth Judicial District Court and Ford Motor Co. v. Bandemer, the Court must decide whether the car manufacturer was properly subjected to specific personal jurisdiction in two states where plaintiffs alleged they were injured by manufacturing defects in Ford vehicles originally made and sold elsewhere. State courts in Minnesota and Montana had said that it was enough that Ford marketed and sold the same type of cars in those states, while Ford insisted that a defendant’s in-state activities must bear a closer causal relationship to a plaintiff’s particular claims.Read our <a href="https://www.mofo.com/resources/insights/201007-supreme-court-specific-jurisdiction-ford-cases.html">client alert</a>.

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Brian Matsui co-chairs Morrison Foerster’s Appellate and Supreme Court practice. Brian is a go-to appellate advocate for sophisticated clients in complex appeals nationwide. 

Brian R. Matsui

Brian Matsui is a partner in Morrison Foerster’s Appellate and Supreme Court practice. For nearly 20 years, Brian has been a go-to appellate advocate for sophisticated clients in complex appeals nationwide. Clients turn to Brian for his substantial experience in patent appeals in the Federal Circuit. He has argued more than 10 times in that Court, winning appeals from both district courts and the Patent Trial and Appeal Board. Brian excels at applying significant legal principles to complex technologies in a way that distills them for the Court. He has done so for companies in a myriad of industries, including mobile device manufacturers, pharmaceutical companies, medical device companies, memory manufacturers, movie studios, and software companies.

Brian Matsui

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Once More Into the Jurisdictional Morass: Supreme Court Grapples With Specific Jurisdiction at Oral Argument in Ford Cases

Ninth Circuit’s Pro-Defense Decision in Hyundai Opens the Door for Class Certification Defenses

The Supreme Court heard roughly an hour of oral argument on Wednesday in a pair of cases against Ford Motor Company raising important questions about the scope 

Once More Into the Jurisdictional Morass: Supreme Court Grapples With Specific Jurisdiction at Oral Argument in Ford Cases

While the use of masks to combat the spread of COVID-19 has become a politicized issue in the United States, the scientific community largely agrees that wearing face coverings is one of the most effective ways to slow infections.[1] State and local governments have issued orders requiring residents to wear masks in public, with some advising employers to provide their employees with face coverings or reimburse the reasonable cost of obtaining one.[2] Governor Gavin Newsom of California, for example, has issued a number of mandates to slow infections. One of those mandates is that all individuals must wear a mask or face covering in public or common spaces statewide. Federal agencies such as the CDC and OSHA have issued non‑binding guidelines that also advise people to wear masks in public.[3]It might seem that as long as businesses comply with these federal, state, and local requirements and guidelines regarding masks, they can expect to be shielded from lawsuits related to their mask-related policies.[4] A few recently filed putative class action lawsuits, however, show that plaintiffs and their attorneys are nevertheless seeking ways to turn mask issues into litigation.Mask-Related Lawsuits Alleging Violations of the Americans with Disabilities Act (“ADA”)The ADA prohibits discrimination against people with disabilities in employment (Title I)[5] and in places of public accommodation (Title III).[6] In recent months, several plaintiffs alleging disabilities have filed lawsuits claiming that businesses they have frequented violated Title III of the ADA by denying the plaintiffs public accommodations due to the businesses’ mask policies.First, on July 30, 2020, Cali Bunn, who alleges that she suffers from a severe hearing loss, filed a class action complaint against Nike, Inc. in San Francisco County Superior Court.[7] According to Bunn, she relies on lip reading and visual cues to understand speech. Bunn alleges that while she was visiting a Nike store in San Diego, she had difficulty understanding the salesperson because the salesperson wore a face mask. Bunn alleges she felt embarrassed and was deprived of “friendly and personalized customer service” due to her disability.[8]Then, on August 21, 2020, more than 60 plaintiffs filed a complaint against Giant Eagle, Inc. and C&J Grocery Co., LLC (owner and operator of a Giant Eagle store) (“Giant Eagle”) in the Western District of Pennsylvania.[9] The plaintiffs allege they suffer from respiratory limitations, asthma, nervous system issues, and/or post-traumatic stress disorder, among other conditions, which allegedly prevents them from being able to wear masks. The plaintiffs further allege that Giant Eagle employees refused to allow them to shop at the Giant Eagle stores and asked them to leave because they were not wearing masks. Plaintiffs also claim that “there was no significant risk to the health or safety of others if Giant Eagle modified its policies, practices and procedures” by allowing them to shop without masks and noted that the CDC acknowledged “the need for a medical exception to the mask requirement.”[10]These lawsuits show that businesses should give careful thought to balancing the need to comply with applicable federal, state, and local orders and guidelines regarding the use of masks and providing reasonable accommodations for people with disabilities under the ADA. There is no one-size-fits-all approach for striking the right balance between complying with the ADA and efforts to stop the spread of COVID-19. Companies should consider what alternatives for patrons with disabilities are reasonable and economically feasible based on the nature of their public‑facing businesses. Options for customers and other visitors whose disabilities prevent them from wearing masks may include, where feasible, providing expanded curbside, online, or other contactless services.Employee Lawsuits Regarding Face Mask PoliciesCompanies should also consider that the mask-related policies they adopt and enforce for their customers may not be the right fit for their employees. In recent months, employees have filed suit against their employers seeking damages for allegedly dangerous working conditions related to COVID-19. Some of these claims are based on purportedly unsafe mask practices.For example, on May 19, 2020, employees and their family members filed a putative class action lawsuit in Illinois state court against the McDonald’s Corporation and a subsidiary alleging claims for public nuisance and negligence due to the alleged failure of McDonald’s to maintain adequate COVID-19 safety protocols.[11] The employees allege that in some McDonald’s restaurants, workers do not regularly wear masks.[12] The employees further allege that they each were provided with only one mask, which became dirty after multiple uses. The court granted in part plaintiffs’ emergency motion for a preliminary injunction. The court found that although a McDonald’s subsidiary provided employees with a sufficient number of masks, the subsidiary was not enforcing its mask policy or complying with the Illinois Governor’s mask requirements. The court ordered the McDonald’s subsidiary to train employees on social distancing in a manner consistent with the Governor’s executive order and enforce mask wearing policies when employees are not six feet apart.COVID-19 presents a new safety concern for employers. Consulting with counsel can help determine what safeguards can and should be implemented in the workplace. Depending on the nature of the work and workplace, issues employers may want to consider could include remote work options, flexible return-to-work plans, appropriate and feasible return-to-work logistics, and reasonable accommodations for vulnerable groups.Key TakeawaysWith so many constituents, businesses may feel as if they are caught between a rock and a hard place. On one hand, customers are suing businesses for requiring them to wear masks. On the other hand, employees are suing them for not enforcing mask-related policies and guidelines. In developing their COVID-19 protocols, businesses must simultaneously consider their obligations as public accommodations to customers and other visitors and their obligations as employers. Doing so requires not only knowledge of applicable rules and guidance but also an eye toward flexibility.Morrison & Foerster’s <a href="https://www.mofo.com/capabilities/class-actions-mass-torts.html">Class Action + Mass Torts Group</a>, <a href="https://www.mofo.com/capabilities/employment-labor.html">Employment + Labor Group</a>, and Coronavirus Task Force have advised and represented many clients on developing COVID-19 protocols and emerging claims related to COVID-19. To stay a step ahead, our team continuously analyzes newly filed lawsuits as well as COVID-19 government orders, guidance, and trends. [1] “Use of Masks to Help Slow the Spread of COVID-19.” Centers for Disease Control and Prevention. Accessed September 16, 2020. [2] “Industry Guidance to Reduce Risk.” Coronavirus COVID-19 Response. California, State Government. Accessed September 16, 2020. <a href="https://covid19.ca.gov/industry-guidance/">https://covid19.ca.gov/industry-guidance/</a>.[3] “Use Masks to Help Slow Spread.” Centers for Disease Control and Prevention. Centers for Disease Control and Prevention. Accessed September 16, 2020. See also United States Department of Labor. COVID-19 Frequently Asked Questions, Occupational Safety and Health Administration. Accessed September 16, 2020. [4] The HEALS Act, the Senate’s July proposed stimulus package, included the SAFE TO WORK Act, which, if enacted, would create a broad liability shield for employers and businesses faced with coronavirus exposure claims as well as certain other specified coronavirus-related claims. Safeguarding America’s Frontline Employees to Offer Work Opportunities Required to Kickstart the Economy Act (“SAFE TO WORK ACT”), S.4317, 116th Cong. (2020); see also “The SAFE TO WORK Act: An In-Depth Guide for Employers to the Senate’s Proposed Coronavirus Liability Shield.” Morrison & Foerster LLP. Accessed September 17, 2020. <a href="https://www.mofo.com/resources/insights/200811-safe-to-work-act.html">https://www.mofo.com/resources/insights/200811-safe-to-work-act.html</a>. With the House and Senate unable to agree on a stimulus package, the SAFE TO WORK Act has thus far not progressed past its assignment to the Senate Judiciary Committee on July 27, 2020. In the meantime, several states (not including California) have enacted legislation shielding businesses from civil liability for COVID-19-related injuries, losses, or deaths. [See, e.g. COVID-19 Liab. Safe Harbor, 2020 N.C. ALS 89, 2020 N.C. Sess. Laws 89, 2020 N.C. Ch. 89, 2019 N.C. HB 118, enacted, July 2, 2020; Georgia COVID-19 Pandemic Business Safety Act, 2020 Ga. ALS 588, 2020 Ga. Laws 588, 2020 Ga. Act 588, 2020 Ga. SB 359, enacted August 5, 2020; and 2020 Bill Text NV S.B. 4B, enacted August 11, 2020.][5] 42 U.S.C. §§ 12111-12117.[6] 42 U.S.C. § 12182(a).[7] Cali Bunn v. Nike, Inc., (S.F.Super.Ct., Jul. 30, 2020, No. CGC-20-585683) 2020 WL 4383483.[8] See Bunn Compl. ¶ 11.[9] Second Amended Consolidated Complaint, Pletcher v. Giant Eagle, Inc., No. 2:20-cv-754 NBF (W.D. Pa. Aug. 21, 2020), ECF No. 32.[10] See Pletcher SACC ¶ 290.[11] Massey v. McDonald’s Corp. et al., No. 20 CH 4247, 2020 Ill. Cir. LEXIS 465 (Ill. Cir. Ct. June 24, 2020).[12] See Complaint, Massey v. McDonald’s Corp. et al., No. 20 CH 4247 at ¶ 81 (Ill. Cir. Ct. June 24, 2020).

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Michelle Sosa-Acosta is an associate in the  Securities Litigation, Securities Enforcement, and Investigations + White Collar Defense Groups in Morrison Foerster’s San Francisco office. 

Michelle Sosa-Acosta

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Are You Covered? Warnings From Recent Face Mask Litigation

Using Waivers to Curb COVID-19 Legal Exposure

While the use of masks to combat the spread of COVID-19 has become a politicized issue in the United States, the scientific community largely agrees that wearin

Are You Covered? Warnings From Recent Face Mask Litigation

The Eastern District of Tennessee recently ruled that there is no private right of action under the Consumer Product Safety Act (CPSA) for an alleged violation of a voluntary product safety standard.[1] The ruling narrows the claims in a pending lawsuit about hoverboards and narrows potential CPSA exposure for all consumer product companies.Consumer Product Safety Act Enacted in 1972, the CPSA established the Consumer Product Safety Commission (CPSC) and gave CPSC the power to issue consumer product safety standards and rules. 15 U.S.C. §§ 2056, 2058. The CPSA creates a private right of action for “[a]ny person who shall sustain injury by reason of any knowing (including willful) violation of a consumer product safety rule, or any other rule or order issued by the Commission.” 15 U.S.C. § 2072(a). While the statute defines a “consumer product safety rule,” 15 U.S.C. § 2052(a)(6), it provides no clear guidance on what constitutes “any other rule or order issued by the Commission” in Section 2072(a).Bruce v. Jet.com, Inc.The plaintiffs in Bruce v. Jet.com, Inc. asserted a claim under the CPSA based on alleged violation of a voluntary product safety standard issued by a private safety organization. CPSC had urged companies in the hoverboard chain of distribution to comply with this voluntary safety standard in a 2016 letter. In the same letter, CPSC cautioned that hoverboards not meeting the voluntary safety standard “may present a substantial product hazard.”[2] The Bruce plaintiffs argued that this letter, with CPSC’s endorsement of the voluntary standard, serves as “any other rule or order.”The court disagreed. It found that “[n]either the voluntary standards at issue nor the CPSC’s letter classify as ‘a consumer product safety rule, or other rule or order issued by the Commission.’”[3] Neither underwent the rulemaking procedure set out in the CPSA, and thus fall outside the limited private right of action permitted under the CPSA “To hold otherwise would circumvent the plain meaning of the statute and the CPSA’s own definitions.”[4]The court dismissed the CPSA claim with prejudice, ridding Jet.com of that ground for liability in this case for good.Industry TakeawayThe court’s decision provides welcome guidance on the scope of the CPSA’s private right of action.  Although as a trial court order it provides only persuasive—not binding—authority, it helps limit the scope of private rights of action, particularly for voluntary standards where the applicability or mandatory nature of the standard is unclear.[1] Bruce v. Jet.com, Inc., No. 2:19-CV-00175-DCLC, 2020 WL 5144692, at *5 (E.D. Tenn. Aug. 31, 2020).[2] Id.at *3.[3] Id. at *5 (quoting 15 U.S.C. § 2072(a)).[4] Id.

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

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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

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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

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Court Finds No Private Right of Action Under Consumer Product Safety Act for Alleged Violation of Voluntary Standard

Court Finds No Private Right of Action Under Consumer Product Safety Act for Alleged Violation of Voluntary Standard

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The Eastern District of Tennessee recently ruled that there is no private right of action under the Consumer Product Safety Act (CPSA) for an alleged violation 