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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The Future of Food: Exploring the World of Cell-Cultivated Cuisine

New California Law Redefines E-Bikes

ICPHSO 2025: Reese’s Law and Corded Blinds

So Long, CPSC?

FDA Seeks to Phase Out Synthetic Color Additives

Last month, Dr. Stephen Hahn was officially sworn in as the new commissioner of the U.S. Food and Drug Administration (FDA). The Senate confirmed him by a 73-17 vote. Hahn became the fourth leader of FDA in 2019 and the first confirmed nominee since former Commissioner Dr. Scott Gottlieb resigned unexpectedly in April and was followed by two temporary acting commissioners. Under a permanent commissioner, we will likely see more consistent and future-oriented policy agendas and programs, but the 2020 presidential election may threaten Hahn’s extended tenure as commissioner—a position nominated by the president with no fixed term. Hahn will most likely be compared to Dr. Gottlieb, the well liked and effective communicator. Hahn’s specific strategies and goals for the agency are not yet clear, but his experience as a researcher, practitioner, and administrator will give him valuable insight to take on the issues currently facing FDA. With a specialization in radiation oncology, he was most recently the Chief Medical Executive at the University of Texas M.D. Anderson Cancer Center, which has over 20,000 employees, runs on an annual budget of over $5 billion, and currently ranks as the top cancer center in the United States. Hahn earned respect as a skilled leader after becoming Chief Operating Officer of M.D. Anderson in 2017. At the time, the medical center was suffering major financial losses, but it became profitable merely months after Hahn stepped into the role. Before that, he was a professor, research director, and chief of the Radiation Oncology Department at the University of Pennsylvania Perelman School of Medicine. Hahn has also treated patients as a clinician. Despite his familiarity with running a large healthcare organization, he has never worked in government and his regulatory philosophy is largely unknown. He also has no notable ties to large pharmaceutical companies—a concern raised during Gottlieb’s confirmation process in 2017.Already on Hahn’s future agenda is teen vaping, which has garnered extensive media and government scrutiny due to a rising number of vaping-related illnesses and deaths. Although e‑cigarette products have been targeted by proposed state and federal legislation, they also fall under FDA’s regulatory authority. During his confirmation hearing before the Senate Health, Education, Labor and Pensions (HELP) Committee, Hahn was questioned extensively about his position on a potential ban of flavored tobacco products. The Trump administration proposed the ban on flavored e‑cigarettes earlier this year, but retreated from implementing it before finally settling on a compromise position of banning some but not all flavored e-cigarette cartridges. Despite calling teen tobacco use an “urgent crisis in this country” and saying that “aggressive action needs to be taken to protect our children,” Hahn was similarly noncommittal to the ban. The cancer doctor’s refusal to take a clear stance on the issue led some committee members to question whether Hahn will remain objective against pressure from President Trump and industry lobbyists.In addition to e‑cigarette use, the HELP Committee expressed concerns about generic drug approval and availability, FDA’s framework for assessing cannabidiol‑based medical products, and ongoing management of the opioid crisis. Hahn’s approach to those issues remains to be seen, but he has promised to use “science and data” to guide his decisions as the next FDA Commissioner. Gottlieb, still a prominent voice in the industry, has continued to criticize the current CBD supplement and beverage industry, outside FDA. We will continue to monitor and report on Commissioner Hahn’s impacts on the regulatory landscape alongside other novel FDA regulation and compliance issues, and expect 2020 to be an exciting year as we all get to know him and understand his approach and priorities.

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

Fitbit

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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

2020 Under Dr. Stephen Hahn, FDA’s New Commissioner

Last month, Dr. Stephen Hahn was officially sworn in as the new commissioner of the U.S. Food and Drug Administration (FDA). The Senate confirmed him by a 73-17

2020 Under Dr. Stephen Hahn, FDA’s New Commissioner

The California Attorney General held the second of four public hearings on the California Consumer Privacy Act’s (CCPA) <a href="https://www.oag.ca.gov/sites/all/files/agweb/pdfs/privacy/ccpa-proposed-regs.pdf" target="_blank" rel="noopener noreferrer">proposed regulations</a> in Los Angeles on December 3, 2019. The Los Angeles hearing featured comments from approximately 24 speakers over a two-hour period. The following provides an overview of the Los Angeles hearing and comments made at the hearing.AG’s Opening RemarksSenior Assistant Attorney General Nick Akers opened the hearing by stating that the purpose of the hearing was to receive public comment about the proposed regulations. He specifically noted that the AG’s office did not intend to answer questions or otherwise engage in dialogue regarding the draft regulations. He also noted that the AG is accepting written comments about the proposed regulations, and that the deadline to submit written comments is this coming Friday, December 6, at 5 pm. Mr. Akers stated that the AG would review and consider all relevant comments, and would respond to those comments in the official Statement of Reasons accompanying the final regulations. He did not provide any information as to when the AG expected to finalize the regulations.Comments Made at the HearingThe hearing was well-attended, and about 24 individuals made public comments. Each speaker was given five minutes to make comments. The group of speakers consisted entirely of business and legal representatives, and included individuals from the California Chamber of Commerce, the Interactive Advertising Bureau, multiple law firms, several nonprofits, and numerous credit unions. The speakers provided the following noteworthy comments regarding the draft regulations:<ul><li style="margin-bottom: 1.25rem;">Notice at collection. Multiple speakers expressed concerns about section 999.305(d) of the regulations, which applies to businesses that collect personal information about consumers from sources other than consumers themselves. The regulations state that businesses that wish to sell personal information acquired in this manner must fulfill one of two requirements before selling that information: they must (a) contact the consumer directly to provide notice that the business sells personal information about the consumer, and provide the consumer with a notice of right to opt-out of those sales; or (b) obtain signed attestations from the sources of the personal information, describing how the sources gave the notice at collection and providing an example of the notice. The representatives of several businesses that collect personal information about consumers through indirect means (e.g., through aggregating personal information about a particular individual from several sources) voiced their opinion that the two alternatives the regulations present are unworkable from their perspective. In particular, several speakers pointed out that it would be impossible for them to provide direct notice to consumers, as they generally lacked consumers’ contact information, and that many of the sources they used to collect this information likewise lacked the means to contact consumers directly and provide an attestation to that effect. A few commentators also pointed out that this provision could prompt fraudsters to send unsuspecting consumers notices that appear to be from legitimate companies but actually serve as a means to steal information or entice consumers to click on malicious links. Several speakers requested that the AG revise the draft regulations in order to allow for the notice at collection to be posted on the websites of those businesses that collect consumers’ personal information from other sources.</li><li>Scope of applicability. Several speakers raised issues related to the scope of the CCPA, and suggested that the regulations be revised to clarify the extent of the statute’s scope. <ul><li style="margin-bottom: 1.25rem;margin-top: 1.25rem;">50,000 consumer threshold. At least three speakers pointed out that the CCPA’s definition as to the types of entities that qualify as “businesses” could capture many small businesses that, practically speaking, would struggle to meet the CCPA’s requirements. They noted that, under the CCPA, an entity may qualify as a “business” if it annually buys, receives, sells, or shares the personal information of 50,000, or more, consumers, households, or devices. They also noted that the CCPA’s definition of “personal information” is broad enough to apply to the types of data that a company may collect via cookies when a consumer visits his or her website, such as the consumer’s IP address. They reasoned that, under these definitions, many types of small businesses could be viewed as collecting the personal information of 50,000, or more, consumers, households, or devices through website visits alone, even if they do not have 50,000 customers. As a result, these small businesses potentially could qualify as “businesses” under the CCPA (provided that they meet the other requirements set out in the definition); although many such businesses would not be equipped to fulfill the obligations the CCPA imposes. The speakers requested that the AG consider these implications and revise the draft regulations to lift some of the burden on these entities (e.g., by excluding IP addresses from the definition of “personal information” to the extent an entity’s collection of IP addresses, alone, allows it to meet the 50,000 consumer threshold).</li><li style="margin-bottom: 1.25rem;">Applicability to credit unions. Multiple credit union representatives also voiced their concerns with the CCPA’s definition of “business.” Nonprofits are excluded from the CCPA’s definition of “business,” but entities that are “organized or operated for the profit or financial benefit” of their owners are not. The credit union representatives noted that although they may qualify as nonprofits, they also are organized and operated for the profit of their “owners” (their members), which made it unclear as to whether or not they were “businesses” subject to the CCPA. In addition to seeking clarity as to this point, the credit union representatives also asked for regulatory clarification on the extent of the CCPA’s exceptions related to the Gramm-Leach-Bliley Act and the California Financial Information Privacy Act. As currently drafted, the CCPA only exempts from its scope information subject to these laws, not entities subject to these laws. The speakers expressed concern that if they were subject to the CCPA, they would have to provide consumers with the notices required by the CCPA, which could confuse consumers who are already receiving multiple privacy notices from financial institutions in accordance with other laws.</li><li style="margin-bottom: 1.25rem;">Downstream notification of consumer opt-out. Several speakers raised issues with section 999.315(f) of the draft regulations, which requires a business that has received a consumer’s opt-out request to provide notice of that request to all third parties to whom it has sold the consumer’s personal information in the 90 days preceding the request, and instruct those third parties to refrain from further selling the consumer’s personal information. The speakers raised concerns that this requirement could force businesses to breach existing contracts with data resellers (i.e., by instructing the resellers that they cannot exercise rights previously granted to them in their contracts with the business), and asked that this requirement be revised or removed.</li></ul></li></ul>Dates and Locations of Upcoming Public HearingsThe AG will hold two more hearings, and information on the time and location can be found on the AG’s <a href="https://oag.ca.gov/privacy/ccpa" target="_blank" rel="noopener noreferrer">website</a>.<ul><li>San Francisco, Wednesday, December 4, 2019;</li><li>Fresno, Thursday, December 5, 2019</li></ul>Written comments must be submitted by December 6, 2019, at 5:00 pm (PST) via email to <a href="#">PrivacyRegulations@doj.ca.gov</a>, or via postal mail at Privacy Regulations Coordinator, California Office of the Attorney General, 300 South Spring Street, First Floor, Los Angeles, CA 90013.

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California Attorney General Holds Public Hearing in Los Angeles on Draft CCPA Regulations

California Attorney General Holds Public Hearing in Los Angeles on Draft CCPA Regulations

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The California Attorney General held the second of four public hearings on the California Consumer Privacy Act’s (CCPA) proposed regulations in Los Angeles on D

On November 7, 2019, the California Air Resources Board (CARB) held a second public workshop to review its draft proposed amendments (Draft Proposal) to its Consumer Products regulations. Since its first public workshop in April, where it identified 49 priority categories, CARB has convened two public work groups related to these regulatory amendments: a Regulatory Strategies Work Group, which has met 14 times and has eliminated 32 categories from further evaluation, and a Regulatory Definitions Work Group that has met twice to update existing regulatory definitions and improve program implementation.Draft Proposal Summary.The chart below sets forth the categories in the Draft Proposal, their existing volatile organic compound (VOC) standards, and the draft proposed VOC standards and VOC reductions, along with their corresponding effective dates of January 1, 2023, and January 1, 2027.<table><tbody><tr><td rowspan="2" width="135" style="width: undefined%; height: auto;">Category</td><td rowspan="2" width="101" style="width: undefined%; height: auto;">Existing VOC Standard</td><td colspan="2" width="201" style="width: undefined%; height: auto;">Effective Date: Jan. 1, 2023</td><td colspan="2" width="202" style="width: undefined%; height: auto;">Effective Date: Jan. 1, 2027</td></tr><tr><td width="97" style="width: undefined%; height: auto;">Draft Proposed VOC Standard</td><td width="104" style="width: undefined%; height: auto;">VOC Reductions (2023 tpd)</td><td width="98" style="width: undefined%; height: auto;">Draft Proposed VOC Standard</td><td width="104" style="width: undefined%; height: auto;">VOC Reductions (2031 tpd)</td></tr><tr><td width="135" style="width: undefined%; height: auto;">Manual Aerosol Air Freshener</td><td width="101" style="width: undefined%; height: auto;">20% or 30%</td><td width="97" style="width: undefined%; height: auto;">10%</td><td width="104" style="width: undefined%; height: auto;">1.0</td><td width="98" style="width: undefined%; height: auto;">5%</td><td width="104" style="width: undefined%; height: auto;">1.8</td></tr><tr><td width="135" style="width: undefined%; height: auto;">Hair Finishing Spray</td><td width="101" style="width: undefined%; height: auto;">55%</td><td width="97" style="width: undefined%; height: auto;">50%</td><td width="104" style="width: undefined%; height: auto;">1.1</td><td width="98" style="width: undefined%; height: auto;">45%</td><td width="104" style="width: undefined%; height: auto;">2.7</td></tr><tr><td width="135" style="width: undefined%; height: auto;">No Rinse Shampoo</td><td width="101" style="width: undefined%; height: auto;">NA</td><td width="97" style="width: undefined%; height: auto;">50%</td><td width="104" style="width: undefined%; height: auto;">0.7</td><td width="98" style="width: undefined%; height: auto;">45%</td><td width="104" style="width: undefined%; height: auto;">0.9</td></tr><tr><td width="135" style="width: undefined%; height: auto;">Personal Fragrance Products (&lt; 20% Fragrance)</td><td width="101" style="width: undefined%; height: auto;">75%</td><td width="97" style="width: undefined%; height: auto;">65%</td><td width="104" style="width: undefined%; height: auto;">1.7</td><td width="98" style="width: undefined%; height: auto;">50%</td><td width="104" style="width: undefined%; height: auto;">5.8</td></tr><tr><td width="135" style="width: undefined%; height: auto;">Crawling Bug Insecticide (Aerosol)</td><td width="101" style="width: undefined%; height: auto;">15%</td><td width="97" style="width: undefined%; height: auto;">10%</td><td width="104" style="width: undefined%; height: auto;">0.4</td><td width="98" style="width: undefined%; height: auto;">6%</td><td width="104" style="width: undefined%; height: auto;">0.9</td></tr><tr><td width="135" style="width: undefined%; height: auto;">Charcoal Lighter Material</td><td width="101" style="width: undefined%; height: auto;">0.020 lbs./start</td><td width="97" style="width: undefined%; height: auto;">0.014 lbs/start1</td><td width="104" style="width: undefined%; height: auto;">—</td><td width="98" style="width: undefined%; height: auto;">0.014 lbs./start</td><td width="104" style="width: undefined%; height: auto;">0.4</td></tr><tr><td width="135" style="width: undefined%; height: auto;">Sunset 2% Fragrance Exemption</td><td width="101" style="width: undefined%; height: auto;">2% of product mass exempted</td><td width="97" style="width: undefined%; height: auto;">—</td><td width="104" style="width: undefined%; height: auto;">—</td><td width="98" style="width: undefined%; height: auto;">0% exempted</td><td width="104" style="width: undefined%; height: auto;">0.3</td></tr><tr><td colspan="2" width="236" style="width: undefined%; height: auto;"></td><td width="97" style="width: undefined%; height: auto;"></td><td width="104" style="width: undefined%; height: auto;">5.0</td><td width="98" style="width: undefined%; height: auto;"></td><td width="104" style="width: undefined%; height: auto;">12.8</td></tr></tbody></table>According to CARB staff, the categories chosen included products most easily reformulated. CARB excluded categories due to possible challenges, such as reformulation issues, FDA issues, time constraints in completing review, or other issues.Other Categories.During the upcoming months of rulemaking, if any of the currently proposed categories become an issue, CARB has identified the following candidates available for consideration:<ul><li>Floor Wax Stripper</li><li>Aerosol Cooking Spray</li><li>Laundry Detergent/Liquid Fabric Softener</li><li>Anti-microbial Dry Hand Wash (Hand Sanitizer)</li><li>Aerosol Sunscreen</li><li>Mouthwash/Rinse</li><li>Automatic Air Fresheners</li><li>Antiperspirants and Deodorants</li><li>Glass Cleaner (Nonaerosol)</li><li>Other categories are possible</li></ul>Other Ongoing Work.CARB is also reviewing the following:<ul><li>Toxic Compounds<ul><li>Evaluate potential for proposed measures to inadvertently increase Toxic Air Contaminant emissions.</li><li>Consider prohibition of methylene chloride (MeCl) in paint strippers.</li><li>Continue collaboration with the California Department of Toxic Substances Control Safer Consumer Products Program.</li></ul></li><li>Greenhouse Gases<ul><li>Measures to increase near-term use of HFC-152a.</li><li>Strategies to accelerate development of zero-emission alternatives, including near-term and long-term.</li></ul></li><li>Potential Reactivity-Based Approaches<ul><li>Considering reactivity standards for mass-based categories.</li><li>Taking into account ozone-forming potential of products.</li><li>Targeting the most reactive VOCs can provide flexibility for regulatory compliance.</li><li>Future reactivity limits dependent on industry development of test methods.</li></ul></li><li>Other Potential Regulatory Updates<ul><li>Reflect existing high-GWP HFC prohibitions in Consumer Product Regulation, Table 94509(n)(1).</li><li>Amend Table of Maximum Incremental Reactivity Values.</li><li>Refine IPE and ACP eligibility requirements.</li><li>Update Method 310.</li></ul></li></ul>Next steps.CARB’s next steps include:<table><tbody><tr><td width="162" style="width: undefined%; height: auto;">Late 2019</td><td width="534" style="width: undefined%; height: auto;">Publish updated final survey data summaries, update consumer product emission inventory</td></tr><tr><td width="162" style="width: undefined%; height: auto;">Early 2020</td><td width="534" style="width: undefined%; height: auto;">Additional work group meetings:<ul style="font-size: 0.875rem;"><li>Specific to proposed regulatory categories</li><li>Regulatory definitions</li><li>Fragrance exemption</li><li>Other topics as needed</li></ul></td></tr><tr><td width="162" style="width: undefined%; height: auto;">Spring 2020</td><td width="534" style="width: undefined%; height: auto;">Third public workshop: Refine draft regulatory proposal, draft regulatory language. Additional workshop if needed</td></tr><tr><td width="162" style="width: undefined%; height: auto;">Ongoing</td><td width="534" style="width: undefined%; height: auto;">Meet individually with interested stakeholders</td></tr><tr><td width="162" style="width: undefined%; height: auto;">Late 2020</td><td width="534" style="width: undefined%; height: auto;">Board consideration of proposed regulatory amendments</td></tr></tbody></table>CARB is seeking comments and feedback on its Draft Proposal by Wednesday, November 27, 2019. Send comments and feedback to csmrprod@arb.ca.gov.A copy of the Draft Proposal can be obtained here: The Public Workshop for Proposed Amendments to the Consumer Products Regulations.Lois Miyashiro, an environmental analyst in the firm’s San Francisco office, assisted in the preparation of this client alert.

CARB Issues New Draft VOC Limits for Consumer Products

On November 7, 2019, the California Air Resources Board (CARB) held a second public workshop to review its draft proposed amendments (Draft Proposal) to its Con

CARB Issues New Draft VOC Limits for Consumer Products

The U.S. Consumer Product Safety Commission (CPSC) recently elected Commissioner Robert Adler to serve as vice-chair of the CPSC. Commissioner Adler, a Democrat who has served on the CPSC since 2009, is a surprising choice for the No. 2 spot, elected to the position by a Republican-majority Commission. The choice is even more surprising given that he will assume the acting chair position when current Acting Chair <a href="/consumer-products/nomination-of-a-new-chairman-at-the-cpsc/">Ann Marie Buerkle</a> steps down at the end of the month. Buerkle had been poised to lead the CPSC as chair, but <a href="/consumer-products/change-is-in-the-air-buerkle-withdraws-her-nomination-to-chair-the-cpsc/">withdrew</a> her <a href="/cpsc/buerkle-poised-to-take-her-seat/">nomination</a> in June. In choosing a vice-chair to succeed her as acting chair, Buerkle crossed the political aisle and gave Adler the majority vote. As a result, the CPSC will be led, at least for the time being, by a Democrat, though the White House is likely to nominate another Republican to fill Buerkle’s seat and return the Commission to a 3-2 Republican majority.

Co-Chair, Litigation Department

Erin Bosman

Outnumbered But in Charge: Democrat Commissioner Robert Adler Elected to Vice-Chair of CPSC

The U.S. Consumer Product Safety Commission (CPSC) recently elected Commissioner Robert Adler to serve as vice-chair of the CPSC. Commissioner Adler, a Democrat

Outnumbered But in Charge: Democrat Commissioner Robert Adler Elected to Vice-Chair of CPSC

On June 21, the Food and Drug Administration (FDA) released a report titled “Statement on agency’s efforts to increase transparency in medical device reporting.” This report describes updates to FDA’s Medical Device Reporting (MDR) Program, namely the conclusion of the Alternative Summary Reporting (ASR) Program. In conjunction with the end of the program, FDA also published 20 years of reports submitted through the ASR Program that had not previously been disclosed to the public, leaving manufacturers with potentially massive amounts of data to sort through regarding their products.Read our <a href="https://protect-us.mimecast.com/s/AEKyCyPJ7zfZWVJRFQzirL">client alert</a>.

Fertility Center Litigation

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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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.

Committed to Clarity: FDA’s Dedication to Transparency with the End of ASR

On June 21, the Food and Drug Administration (FDA) released a report titled “Statement on agency’s efforts to increase transparency in medical device reporting.

Committed to Clarity: FDA’s Dedication to Transparency with the End of ASR

This week, Acting Chairman Ann Marie Buerkle <a href="https://cpsc.gov/about-cpsc/chairman/ann-marie-buerkle/statements/statement-acting-chairman-ann-marie-buerkle">withdrew</a> her <a href="https://classdismissed.mofo.com/cpsc/buerkle-poised-to-take-her-seat/">nomination</a> to serve as Chairman of the U.S. Consumer Product Safety Commission (CPSC). She will wrap up her tenure as Acting Chairman, a <a href="https://classdismissed.mofo.com/consumer-products/same-enforcement-trend-new-cpsc-leadership/">position she has held</a> since February 2017, on September 30, and will finish her CPSC term on October 27. As we <a href="https://classdismissed.mofo.com/consumer-products/nomination-of-a-new-chairman-at-the-cpsc/">previously reported</a>, Buerkle has guided the CPSC in a more corporate-friendly position, and her 2019 priorities included the Internet of Things, CPSC technology upgrades, and traditional product safety initiatives, such as furniture tipover safety. The White House has yet to indicate whether Republican Commissioner Dana Baiocco or Peter Feldman will be tapped to fill the Chairman role, or if the person selected to fill Buerkle’s CPSC seat will also get the nod for Chairman. You can find more of MoFo’s Class Dismissed articles about Buerkle <a href="https://classdismissed.mofo.com/?s=buerkle">here</a>.

Change Is in the Air: Buerkle Withdraws Her Nomination to Chair the CPSC

This week, Acting Chairman Ann Marie Buerkle withdrew her nomination to serve as Chairman of the U.S. Consumer Product Safety Commission (CPSC). She will wrap u

Change Is in the Air: Buerkle Withdraws Her Nomination to Chair the CPSC

In 1943, the United States Supreme Court considered the constitutionality of an ordinance that prohibited door knocking in Martin v. Struthers, 319 U.S. 141 (1943).  The Supreme Court, in its landmark free speech decision, concluded that the ordinance was invalid because it was in conflict with the freedom of speech and press.  The Supreme Court’s decision was clear: “Freedom to distribute information to every citizen wherever he desires to receives it is so clearly vital to the preservation of a free society that . . . it must be fully preserved.”Forty-eight years later, the Telephone Consumer Protection Act (TCPA) was passed, prohibiting, under certain circumstances, calls to a cell phone using an automatic telephone dialing system (ATDS) or artificial or prerecorded voice without the prior express consent of the called party.  The TCPA created expansive restrictions on speech in the country, and has been viewed as contrary to the Supreme Court’s instruction in Martin to preserve the freedom to distribute information to every citizen.  And the FCC and courts around the country continue to expand the reach of the TCPA’s ban on automated calls.  Yet, the TCPA has repeatedly survived strict scrutiny review in courts across the country.On April 24, 2019, the landscape shifted.  The Fourth Circuit, in a highly anticipated decision, struck down a 2015 amendment to the TCPA that exempted federal debt-collection automated calls, finding that the exemption was an unconstitutional content-based restriction on speech in violation of the First Amendment.  See Am. Ass’n of Political Consultants, Inc. v. FCC, Case No. 18-1588 (4th Cir. Apr. 25, 2019).  Although the Fourth Circuit declined to extend its decision to the TCPA as a whole, the decision potentially opens the door to future First Amendment challenges.BackgroundPlaintiffs, who were political and polling organizations, brought this case in the Eastern District of North Carolina against the Federal Communications Commission (FCC) and the U.S. Attorney General in 2016.  Plaintiffs alleged that certain TCPA exemptions created by the FCC, as well as a 2015 congressional exemption, were content-based restrictions.  As such, defendant had the burden of demonstrating that the TCPA’s prohibition on calls using an ATDS was narrowly tailored to further a compelling interest, which it is entitled to protect using the least restrictive means available.  But the TCPA’s prohibition did not satisfy strict scrutiny, Plaintiffs argued.  As such, by favoring commercial speech over the noncommercial political speech of Plaintiffs, the prohibition violated the constitutional rights of these political organizations, Plaintiffs claimed.The district court rejected Plaintiffs’ free speech challenge and granted summary judgment in favor of the Government.  The district court found that it lacked jurisdiction to consider the exemptions created by the FCC, and thus focused its decision on the 2015 congressional exemption, which exempted from the TCPA calls related to the collection of debts owed to or guaranteed by the federal government.  The district court agreed with Plaintiffs that content‑based speech restrictions are “presumptively unconstitutional,” and that the exemption for debt-collection calls did in fact make content-based distinctions.  But the exemption nonetheless satisfied strict scrutiny review because the exemption did not hinder the automated call ban from furthering the compelling governmental interest of protecting the privacy interests of consumers.  Moreover, the district court disagreed with Plaintiffs’ argument that less restrictive alternatives would equally advance the purposes of the automated call ban.  Plaintiffs appealed.The Fourth Circuit Weighs InThe Fourth Circuit vacated and remanded.The Fourth Circuit agreed with the district court that the debt collection exemption facially distinguished between phone calls on the basis of their content, and was thus a content-based speech restriction.  As the district court explained, a private debt collector could make two nearly identical automated calls, with the sole distinction being that the first relates to a loan guaranteed by the federal government, while the second concerns a commercial loan.  The first call would satisfy the debt collection exemption.  The second would be illegal.Because the Fourth Circuit found that the exemption was a content-based restriction on speech, the exemption could only pass constitutional muster if it satisfied a strict scrutiny review, which requires the speech restriction to advance a sufficiently important government objective of the “highest order,” and to be narrowly tailored to fit that objective.  The Fourth Circuit found that the debt collection exemption failed strict scrutiny review because it was “underinclusive”—that is, it covered too little speech—and thus did not serve the compelling governmental interest of protecting privacy in a narrow fashion.Notwithstanding the constitutionally flawed debt collection exemption, the Fourth Circuit held that the exemption did not invalidate the entirety of the automated call ban, and thus agreed with the Government that the exemption could be severed from the TCPA.  As the Fourth Circuit noted, Congress had explicitly mandated that, if a TCPA provision is determined to be constitutionally infirm, severance is the appropriate remedy.  The Fourth Circuit thus vacated the district court’s award of summary judgment to the Government and directed the severance of the debt collection exemption from the automated call ban.TakeawaysAlthough Plaintiffs prevailed in having the district court’s order vacated, the TCPA’s ban on automated calls was not invalidated.  Although the Fourth Circuit declined to extend its invalidation of the debt collection exemption to the TCPA as a whole, the decision is the first to find that the TCPA violates the First Amendment, and potentially opens the door to future First Amendment challenges.  The decision thus begs the question: will courts revisit the TCPA’s ban on the “freedom to distribute information” lauded by the Supreme Court in Martin?  Only time will tell.

Clients seek out Tiffany for her successful track record in defending class action claims on behalf of clients in a broad range of industries, including technology, healthcare, and consumer product companies. She represents numerous Fortune 500 companies in high-stakes litigation involving privacy and marketing claims in courts throughout the United States.

Tiffany Cheung

Clients seek out Tiffany for her successful track record in defending class action claims on behalf of clients in a broad range of industries, including technology, healthcare, and consumer product companies. She represents numerous Fortune 500 companies in high-stakes litigation involving privacy and marketing claims in courts throughout the United States.

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Fourth Circuit’s Decision Revitalizes First Amendment Challenge to the TCPA

Fourth Circuit’s Decision Revitalizes First Amendment Challenge to the TCPA

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In 1943, the United States Supreme Court considered the constitutionality of an ordinance that prohibited door knocking in Martin v. Struthers, 319 U.S. 141 (19

On June 7, 2019, an en banc Ninth Circuit panel affirmed certification of a nationwide settlement class and held, 8-3, that class certification criteria are applied less strictly in a settlement context.[1]  Hyundai II preserves the ability to certify nationwide settlement classes while maintaining more demanding requirements for litigation classes.  As noted in our earlier post, the prior panel decision,[2] which denied certification, sent class action lawyers into a tizzy, creating concerns about the viability of nationwide class settlements.  Hyundai II reversed course, holding that the predominance requirement differs in a settlement context because there is no need to consider the manageability of individual issues at trial.Case BackgroundAs we discussed in our previous post, a flurry of class actions were filed nationwide after the EPA launched an investigation regarding complaints that Hyundai and Kia had overstated the fuel efficiency of some of their vehicles.  The MDL panel consolidated the cases before Judge Wu in the Central District of California, and Judge Wu granted plaintiffs’ motion for certification of the settlement class.  The three-judge panel in Hyundai I vacated the trial court’s decision, holding that the Rule 23(b)(3) predominance inquiry required a choice-of-law analysis, as well as proof of classwide deception, essentially identical to what is required for certification of a litigation class.On July 27, 2018, the Ninth Circuit granted en banc review of the panel decision.Predominance Analysis  Hyundai II held that Rule 23(b)(3) predominance factors must be considered in light of the reason for which certification is sought—litigation or settlement.  Citing the Supreme Court’s decision in Amchem,[3] the Ninth Circuit held that in the settlement context, manageability problems created by the need to resolve individual issues at trial are not a concern because no trial will occur.  Instead, the focus is on the Rule 23 provisions intended to protect absent class members by blocking “unwarranted or overbroad class definitions.”Individual Issues Regarding Exposure and Reliance Did Not Defeat Predominance for a Settlement ClassIn Hyundai II, the Ninth Circuit concluded that common issues predominated regarding exposure and reliance, because so-called “Monroney stickers” containing the alleged fuel efficiency misrepresentations were present on every new car.  The Objectors-Appellants argued that the class of used-car purchasers may not have seen the “Monroney stickers” because they were not required to be displayed on used cars.  The trial court had rejected this argument on the basis that the alleged misrepresentations were part of a nationwide, concerted marketing effort.  The Hyundai II panel, however, did not decide whether Hyundai’s and Kia’s advertising was substantial enough to support an inference of reliance under the Tobacco II standard in a litigation context.<a name="_ftnref4" href="#4033971-v3-Hyundai_-_Ninth_Circuit_Article.docx">[4]</a>  Rather, the court limited its decision to the settlement context and concluded that the potential individual issues would apply only to a subset of the class and thus did not defeat predominance for the settlement class overall.  Moreover, the potential individual issues would “primarily implicate trial management issues, which we do not consider when conducting a predominance analysis for a settlement class.”Variations in State Law Did Not Defeat Predominance for a Settlement ClassHyundai II rejected the objectors’ argument that, in the settlement context presented, Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), required the district court to address variations in state law affecting claims by used car purchasers.  While a party litigant could “timely invoke the law of a foreign state,” here, no objector had presented an adequate choice-of-law analysis, or argued that differences between the consumer protection laws of all fifty states precluded certification of a settlement class.  As such, the district court was not obligated to address choice-of-law issues, and the Ninth Circuit would not decertify the class for lack of such an analysis.Moreover, the Ninth Circuit held that Mazza was “readily distinguishable.”  There, unlike in the case before the court, the foreign law proponent had “exhaustively detailed the ways in which California law differs from the laws of the 43 other jurisdictions,” and showed how applying the facts to those disparate state laws made “a difference in this litigation.”  The en banc panel emphasized that:  “Importantly, the Mazza class was certified for litigation purposes.  The prospect of having to apply the separate laws of dozens of jurisdictions presented a significant issue for trial manageability, weighing against a predominance finding.”Finally, Hyundai II concluded that application of California law did not violate due process notwithstanding that, under Virginia law, Virginia residents’ claims might be time-barred if they opted out.  Significantly, the Ninth Circuit held that the Virginia objector was free to opt out, but “could not opt out on behalf of anyone else.”  The decision thus eliminates the threat sometimes made by objectors to opt out an entire subclass.Settlement Approval Was Otherwise ProperUnlike a number of recent Ninth Circuit decisions that have been notably critical of the details of class settlements, the en banc panel in Hyundai II rejected a variety of challenges to the settlement and settlement procedures.  It held that both the long form and short form notices were proper.  The long form notice adequately described the terms of the settlement and informed settlement class members that additional compensation could be received.  The short form notice “was designed to be, as the name suggests, short.”  It satisfied its “primary purpose” of alerting class members to the settlement; it provided a high-level overview of the process (including critical dates), and explained where class members could obtain additional information and claim forms.Hyundai II also rejected the argument that claim forms were not necessary and that the claim forms were overly burdensome.  Although the participation rate of lump sum claimants was only 23 percent, the Ninth Circuit noted that it had approved class action settlements “where less than five percent of class members filed claims.”  Finally, the Ninth Circuit found no evidence of collusion between class counsel and the automakers, noting that there was no “clear sailing” provision, no reversion of unclaimed funds to the defendants, and no disproportionate distribution of settlement funds to class counsel.DissentIn her dissent, Judge Ikuta, who authored the original panel decision, largely adopted the analysis contained in that decision.  The dissent argues that settlement classes are not different, and that the trial court should have done a full choice-of-law analysis, as would have been required for a litigation class.TakeawaysHyundai II reaffirms that, in appropriate cases, nationwide settlement classes can be certified under a less stringent standard than litigation classes.  At the same time, the decision is cabined to the settlement context and preserves intact the far more demanding predominance analysis required for certification of a litigation class.________________________________________________________________[1] In re Hyundai and Kia Fuel Economy Litig., 2019 WL 2376831 (June 6, 2019) (“Hyundai II”).[2] In re Hyundai and Kia Fuel Economy Litig., 897 F.3d 1003 (9th Cir. 2018) (“Hyundai I”).[3] Amchem Products Inc. v. Windsor, 521 U.S. 591 (1997).[4] In re Tobacco II Cases. 46 Cal. 4th 298 (2009).