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

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

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

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

California Updates Prop 65 Short-Form Warning Requirements

When Governor Jerry Brown signed <a href="https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180AB1906" target="_blank" rel="noopener">Assembly Bill 1906 </a>and <a href="https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB327" target="_blank" rel="noopener">Senate Bill 327</a> into law on Friday, California took major strides toward regulating the Internet of Things, the network of internet-connected devices that includes everything from televisions and cars, to refrigerators, fitness trackers, and baby monitors.  As of January 1, 2020, “reasonable security feature[s]” must be included in all “connected devices” sold or offered for sale in California, specifically those devices capable of connecting directly or indirectly to the internet and that have an IP or Bluetooth address.

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New California IoT Law Requires Security for Connected Devices

New California IoT Law Requires Security for Connected Devices

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When Governor Jerry Brown signed Assembly Bill 1906 and Senate Bill 327 into law on Friday, California took major strides toward regulating the Internet of Thin

In Hadley v. Kellogg Sales Company, Plaintiff Stephen Hadley, who has filed at least two additional lawsuits alleging the mislabeling of breakfast foods, sought certification of four California subclasses of purchasers of Kellogg’s cereal and cereal bar products.  On August 17, 2018, Judge Koh issued an order that carefully dissected Plaintiff’s request.  The court concluded that Plaintiff had established the requirements for class certification for several of his proposed subclasses challenging health claims on the labels of the products at issue.  Significantly, however, Judge Koh rejected Plaintiff’s attempts to certify a subclass challenging a representation made on the back of packaging of cereal bars.  She also concluded that Plaintiff had not established Rule 23(b)(3)’s predominance requirement as to his deceptive omission theory of liability due to his failure to present a viable damages model.Background. Plaintiff alleges that Kellogg’s use of statements containing terms such as “healthy,” “nutritious,” or “wholesome” on its cereal and cereal bar products misled consumers into believing that those products are healthy, when they are not because of the amount of added sugar they contain.  On this basis, Plaintiff alleges violations of the FAL, CLRA, and UCL, and asserts a claim for breach of warranty.  Plaintiff also predicates his consumer-protection claims on his allegations that Kellogg deceptively failed to disclose to consumers the products’ high sugar content, and that certain of the challenged statements violate FDA regulations.Narrowly Defined Subclasses Prevent Predominance Challenge Based on Lack of Exposure, But Back-of-the-Package Statements Do Not. Kellogg argued that many of the allegedly deceptive statements did not appear on the packaging of the cereal products for a substantial portion of the class period, and that this lack of uniform exposure created significant differences regarding the legal viability of class members’ claims.  The court disagreed.  Judge Koh reasoned that Plaintiff sidestepped this potential problem by narrowly defining the subclasses to include only those individuals who purchased products that actually displayed the challenged statements on their packaging.  Nevertheless, the court agreed with Kellogg that it could not infer class-wide exposure to the “wholesome goodness” statement that only appeared on the back panel of cereal bar packaging.  The court therefore declined to certify a subclass of purchasers of the cereal bar because it would have to conduct individualized inquiries to determine which class members saw the challenged statements.Advantage Realized Model Flunks Comcast for Omission Claims.  Comcast Corp. v. Behrend, 569 U.S. 27 (2013), requires a plaintiff to establish a damages model that matches his or her theory of liability and measures damages across the entire class.  Plaintiff claimed that his expert’s proposed “advantage realized model” satisfied the Comcast requirement for his theory that Kellogg deceptively failed to inform consumers about the allegedly high sugar content of its breakfast products.  Under the advantage realized model, Plaintiff’s expert proposed to measure the market advantage that Kellogg obtained by omitting that information.  The court concluded, however, that this model only provided a measure of nonrestitutionary disgorgement (Kellogg’s unjust enrichment), rather than restitutionary disgorgement (Plaintiff’s loss).  The court explained that nonrestitutionary disgorgement is not a permissible class-wide remedy under the FAL, CLRA, or UCL, and therefore Plaintiff’s damages model was not consistent with his omission theory of liability.Takeaway. Judge Koh’s decision in Hadley emphasizes that plaintiffs challenging multiple statements on multiple products in a single action are not excused from establishing the requirements for class certification for each product at issue and each theory of liability.  Even where defendants cannot entirely defeat class certification, they should parse plaintiffs’ broad requests and direct pointed attacks to particular products or theories of liability that are susceptible to challenge on any class certification requirement.  In particular, Judge Koh’s denial of class certification as to back-of-the-package statements and omission-based claims demonstrates that predominance and damages model requirements remain fruitful areas for opposing class certification.

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Mixed Results on Class Certification for “Cereal” Plaintiff

Mixed Results on Class Certification for “Cereal” Plaintiff

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In Hadley v. Kellogg Sales Company, Plaintiff Stephen Hadley, who has filed at least two additional lawsuits alleging the mislabeling of breakfast foods, sought

Since the European Union’s main aims include consumer protection and ensuring product safety, you might be forgiven for thinking that the EU’s rules in those areas would be clear and straightforward. But you would be wrong. Manufacturers and distributors in Europe don’t have the luxury of a single harmonised set of product safety, marking, and labelling regulations. Very often, products are not correctly marked or labelled for sale in the EU because the applicable rules are either unclear or esoteric.In this Alert, we will examine the main mark required to designate product safety in Europe – the CE mark – and the wide range of other labelling and marking requirements that exist for different categories of products.

Autodesk

HM Revenue and Customs

Home Office, Department for Communities and Local Government, Department of Health

Intel

ITworx

lastminute.com

NYSE-listed health tech company

One of UK's largest public EV charging networks

Phoenix Group

Telenor

UK Border Agency

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Alistair Maughan co-leads Morrison & Foerster's European Technology & Commercial Practice.

Alistair Maughan

Alistair advises on the deployment of new technology platforms involving, for example, the internet of things, AI and machine-learning, and blockchain and distributed ledger technology.

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Product Marking and Labelling in Europe

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Since the European Union’s main aims include consumer protection and ensuring product safety, you might be forgiven for thinking that the EU’s rules in those ar

Product Marking and Labelling in Europe

On July 27, 2018, the Ninth Circuit issued an order granting en banc review of its decision in Hyundai and Kia Fuel Econ. Litig., No. 15-56067, 2018 U.S. App. LEXIS 1626 (Jan. 23, 2018). The Ninth Circuit also set oral argument for the week of September 24, 2018, in a separate ruling.As we noted in our February 12, 2018 post, the Ninth Circuit’s January 23 decision denying certification of a settlement class had provided defendants with a power tool in defending against class certification. While the panel is reviewing the decision, however, the Ninth Circuit made clear that the case may not be cited as precedent in any case before the Ninth Circuit.  We will provide relevant updates following the issuance of an opinion.

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Update: Ninth Circuit to Review Hyundai Pro-Defense Decision

Update: Ninth Circuit to Review Hyundai Pro-Defense Decision

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On July 27, 2018, the Ninth Circuit issued an order granting en banc review of its decision in Hyundai and Kia Fuel Econ. Litig., No. 15-56067, 2018 U.S. App. L

On July 19, 2018, United States Magistrate Judge Mark Lane issued a Report and Recommendation recommending that United States District Judge Robert Pitman for the Western District of Texas grant a motion to compel arbitration and dismiss a putative class action on the grounds that the Plaintiff agreed to the Defendants’ website’s Terms and Conditions, which contained a mandatory arbitration clause. May, et al. v. Expedia Inc., et al., No. 1:16-cv-01211-RP, Dkt. No. 24.HomeAway User Files Putative Class Action. HomeAway is an online marketplace for vacation rental properties where property owners can list their properties for rent and “travelers” can book rental properties.  HomeAway’s original business model was to charge owners a fee to list their properties (either on a one-year subscription or pay-per-booking basis) and to allow travelers to search and book rentals for free.  HomeAway was acquired by Expedia in 2015 and changed its business model to charge travelers a fee to book rentals in mid-2016.  Plaintiff James May had been a property owner who used HomeAway since 2013.In November 2016, Plaintiff filed a putative class action against Expedia and HomeAway for breach of contract, fraud, fraudulent concealment, and Oregon and Texas state law claims based on HomeAway’s imposition of a “traveler fee” and its negative effect on owners who used HomeAway to rent properties. Defendants moved to compel Plaintiff to arbitrate his claims based on HomeAway’s 2016 Terms and Conditions, which contained a mandatory arbitration clause.  Defendants argued that Plaintiff agreed to the Terms and Conditions twice:  (1) when he renewed his HomeAway subscription in September 2016 and (2) when he booked his property through HomeAway’s website in October 2016.  Plaintiff argued he did not agree to the Terms and Conditions because (1) he renewed his HomeAway subscription in his wife’s name, (2) he did not receive actual or constructive notice that he agreed to the Terms and Conditions when he clicked “Continue” during the booking process, and (3) any agreement to arbitrate is illusory and unenforceable.  Following the Fifth Circuit’s decision in Arnold v. HomeAway, Inc., 890 F.3d 546 (5th Cir. 2018), the parties agreed that Plaintiff’s argument that the arbitration agreement is illusory is precluded and that the only issue before the court was whether the parties entered an arbitration agreement.  Magistrate Judge Lane then issued his Report and Recommendation finding Plaintiff contractually bound to the 2016 Terms and Conditions based on his subscription renewal and booking his property through HomeAway.HomeAway User’s Assignment of Account Not Enforceable. First, Magistrate Judge rejected Plaintiff’s argument that he did not agree to the 2016 Terms and Conditions on his own behalf because he purchased the renewal subscription in his wife’s name on her behalf and with her authorization.  Although the Plaintiff specifically renewed the subscription in his wife’s name to avoid being bound by the 2016 Terms and Conditions, he offered no legal argument or basis to show that this had any legal effect.  The 2015 Terms and Conditions expressly did not allow Plaintiff to assign the Terms and Conditions without HomeAway’s consent, and there was no evidence that HomeAway consented to the purported assignment from Plaintiff to his wife.HomeAway User Was on Notice of Agreement to Terms and Conditions. Second, Magistrate Judge Lane rejected Plaintiff’s argument that he was not aware that he was agreeing to the 2016 Terms and Conditions when he booked his property through HomeAway’s website because the placement and typeface of the hyperlink were not sufficient to put him on notice.  Magistrate Judge Lane distinguished Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171, which involved a hyperlink to the terms at the bottom of a webpage and did not require any affirmative action to demonstrate the user’s agreement to the terms.  In contrast, HomeAway’s website presented the user with a notice directly above the “Continue” button that informed the user that he was agreeing to the hyperlinked Terms and Conditions by clicking the button to continue.  A user could not complete the transaction without clicking the “Continue” button.  This was sufficient to put Plaintiff on notice that he was agreeing to the hyperlinked Terms and Conditions by continuing the transaction.HomeAway User Equitably Estopped From Arguing Not Bound. Finally, Magistrate Judge Lane noted that if Plaintiff was not bound by the Terms and Conditions, Plaintiff could gain all of the benefits of his HomeAway account without being bound to terms he did not want to accept.  Such a result dictates that even if Plaintiff was not contractually bound, he should be equitably estopped from contending that he is not bound by the Terms and Conditions.HomeAway Takeaway. Although Judge Pitman has not issued a final order granting or denying the motion to compel arbitration, Magistrate Judge Lane’s Report and Recommendation provides a roadmap for how companies can hold users to their agreement to terms even where the user attempts to avoid being bound.

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Website User Held to Arbitration Provision Despite Renewing Subscription in Wife’s Name

Website User Held to Arbitration Provision Despite Renewing Subscription in Wife’s Name

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On July 19, 2018, United States Magistrate Judge Mark Lane issued a Report and Recommendation recommending that United States District Judge Robert Pitman for t

Safety standards for booster seats will no longer be a polite suggestion. On June 26, 2018, the U.S. Consumer Product Safety Commission (CPSC) voted 4-0 to approve a new mandatory safety standard for children’s booster seats. 83 Fed. Reg. 30837. The new rule applies to booster seats used in homes and in restaurants, not the booster seats used in cars.The new rule incorporates ASTM F2640‑‑18, the voluntary standard currently applicable to booster seats. Approved and published in April 2018, the current version sets forth safety guidelines for booster seats that are entirely voluntary. The CPSC’s vote changes that. Once, effective, the standard for booster seats will be a “final mandatory consumer product safety standard.” Manufacturers and distributors in the United States will have to follow the new standards or risk being out of compliance.Need for StandardsThose with kids know exactly what a booster seat is—and how hard it can be to keep a child in one. It’s a “juvenile chair” for kids up to five years old, placed on an adult chair to raise the child up to standard dining table height. In contrast to traditional high chairs, booster seats allow children to eat at the table with the rest of the family, for better or for worse. The seats also help keep children safe and sitting upright while dining.While booster seats bring convenience to parents, improper manufacturing or use can be dangerous. From January 2008 to October 2017, CPSC reported a total of 912 incidents related to booster seats—this includes 152 nonfatal and two fatal injuries. According to CPSC, injuries to the head are the most common hazard and typically happen when children fall out of booster seats. Other dangers include restraint and attachment problems, as well as lock and latch failures.The New StandardsRecognizing these potential dangers, CPSC took action to address these observations. The new mandatory standard comes from CPSC’s mandate under Section 104(b) of the Consumer Product Safety Improvement Act of 2008, which requires CPSC to issue consumer product safety standards for durable infant and toddler products. CPSC’s new federal safety rule for booster seats incorporates ASTM International’s most recent voluntary standard, Standard Consumer Safety Specification for Booster Seats (ASTM F2460‑18).The new regulation includes information as well as design requirements. Keeping parents informed is critical to safe use of booster seats. For example, all booster seat packaging must show the minimum dimensions of the adult chair needed for the booster seat to fit. The booster seats themselves must carry warnings, too, such as a reminder to securely fasten booster seats to adult chairs before use, or reminders to stop children from pushing away from the table while seated. Booster seats must also have an active means of attaching to an adult chair to prevent them, and any children, from falling off the chair.Booster seat companies have time to come into compliance with the new regulations. Although the final rule was published on July 2, 2018, it does not go into effect for eighteen months. This means that products manufactured or imported on or after January 2, 2020 will have to comply. Products that don’t comply may be reportable under Section 15(b) of the Consumer Product Safety Act, and failure to report could lead to penalties. Therefore, manufacturers and distributors of booster seats should take note of this new standard and take steps over the next 18 months to ensure their products comply.*Co-author  Hannah Yim is a summer associate in our San Diego office.

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.