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

Nearly ten years after the first three phthalates were banned from children’s toys by Congress, the U.S. Consumer Product Safety Commission (CPSC) <a href="https://www.federalregister.gov/documents/2017/10/27/2017-23267/prohibition-of-childrens-toys-and-child-care-articles-containing-specified-phthalates">issued a final rule</a> on October 27 prohibiting five more.  The rule bans the manufacture for sale, offer for sale, distribution in commerce, or importation of children’s toys and products containing more than 0.1% of five phthalate chemicals.  Phthalates are a group of chemicals used to soften plastics and make them pliable and easier to grip and are found in numerous household products, including children’s toys.  The long-awaited final rule continues to face significant controversy regarding its scope and the data used to support it.Years in the making Due to concerns that phthalates can act as endocrine disruptors, Congress originally prohibited certain phthalates in the Consumer Product Safety Improvement Act of 2008 (CPSIA).  The CPSIA permanently banned three phthalates (DEHP, DBP, and BBP) and imposed an interim ban on an additional three (DINP, DNOP, and DIDP).  Section 108 of the CPSIA then required CPSC to convene a group of experts called the Chronic Hazard Advisory Panel (CHAP) to assess the risks of phthalates and phthalate alternatives.Thereafter, CHAP convened and ultimately recommended banning five additional phthalates in a July 2014 final report.  In addition to recommending that the interim ban on DINP be made permanent, CHAP recommended banning DIBP, DPENP, DHEXP, and DCHP.  According to the CPSIA, CPSC was required to issue a final rule addressing whether to make the interim ban permanent and whether to add any more phthalates to the ban no later than 180 days after the CHAP report was issued.  However, no rule was issued before the deadline and the final rule did not follow until this October—over two years and nine months later.The rule also ends litigation against CPSC for its delay in issuing the final rule.  The Natural Resources Defense Council and other groups had sued CPSC in December 2016 for failing to meet its January 14, 2015 deadline.  On October 31, 2017, that suit was dismissed with prejudice in light of CPSC’s issuance of the final rule.The final rulePredictably, the U.S. will now permanently ban toys containing the eight phthalates identified by CPSC in the proposed rule from 2014— DEHP, DBP, BBP (the three originally prohibited in the CPSIA) and DINP, DIBP, DPENP, DHEXP, DCHP (the five recommended by CHAP for a ban).  The rule takes effect on April 25, 2018.Controversy about the rule The final rule passed by a vote of three to two commissioners, reflecting the political divide on the Commission as well as the contentiousness surrounding a ban on phthalates.  Sensing the likelihood of litigation, CPSC Commissioner Elliot F. Kaye <a href="https://www.cpsc.gov/s3fs-public/CommissionerKayeStatementonPhthalatesFR10.18.17.pdf?jRKlsAV2JN8BremnAWRku2vzRlvmYn56">issued a statement</a> defending the rule and highlighting “how thorough the CHAP was and how its methods and conclusions were validated by a substantial peer review.”  He implored “judges and law clerks who may look over this record” to study Congress’s directive to the CPSC in the CPSIA, the science, and how the CPSC reviewed public comments during the rulemaking.Then-CPSC Commissioner Joseph P. Mohorovic, who voted against the rule, <a href="https://www.cpsc.gov/about-cpsc/commissioner/joseph-mohorovic/statements/statement-of-commissioner-joseph-p-mohorovic-2">issued a statement</a> that the Commission “missed [an] opportunity to pass a reasoned, evidence-based rule prohibiting the phthalates that pose actual risk to consumers.”  He stated that the standard for a phthalate to survive the ban—“reasonable certainty of no harm”—was inconsistently applied by CPSC throughout the rulemaking process.  Additionally, he noted that there is “scant evidence showing that the products covered by the Final Rule—toys and child care articles—contribute in any measureable way to overall phthalate exposure for the vulnerable population.”  Instead, he pointed to dietary sources as contributing “the most to overall phthalate exposure.”  Acting CPSC Chairman Anne Marie Buerkle <a href="https://www.cpsc.gov/s3fs-public/ACHBuerklesPhthalatesfinalrulestatement10302017.pdf?1N0bigFnYyn_CGtgCEGQZJrjTnsjv3RO">also published a statement</a> agreeing with some of the criticisms raised by Commissioner Mohorovic.  Their criticisms echo those raised by phthalate manufacturers that the CHAP report, and now the final rule, relied on outdated data from 2005.Challenges ahead Litigation and industry challenges are certain to follow.  The Toy Association issued a statement that it does not believe the rule is fully supported by scientific evidence.  Other industries may be subject to scrutiny for phthalate use in the future, including cosmetics and dietary sources, as raised by Commissioner Mohorovic.  Manufacturers outside of the toy and child product industries should monitor the controversy and seek counsel to determine whether their products may be at issue.

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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CPSC Issues Final Rule Expanding Phthalate Ban

CPSC Issues Final Rule Expanding Phthalate Ban

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Nearly ten years after the first three phthalates were banned from children’s toys by Congress, the U.S. Consumer Product Safety Commission (CPSC) issued a fina

On October 20, 2017, a unanimous Ninth Circuit panel in Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017), resolved a circuit-wide split on injunctive standing requirements in the misbranding context.  The panel addressed whether a plaintiff allegedly deceived by false advertising has Article III standing to enjoin a false statement despite knowing the statement’s “true” meaning.  The panel answered in the affirmative, reversing the district court’s decision and reviving plaintiff’s “flushable” wipes false advertising claims.  The panel also held that plaintiff had adequately alleged that defendants’ wipes advertisements were false and that she had suffered an economic injury as a result.Case Background.  Kimberly-Clark and affiliates manufacturer pre-moistened wipes, which they market and sell as “flushable.”  Plaintiff Jennifer Davidson alleged that that this “flushable” label was false and misleading, and she sued Kimberly-Clark for violations of California consumer protection laws.  Plaintiff sought restitution and damages in the form of the price premium resulting from the “flushable” label, as well as an injunction requiring Kimberly-Clark to discontinue labeling the wipes as “flushable.”Kimberly-Clark moved to dismiss plaintiff’s first amended complaint.  The district court granted the motion, finding that: (1) plaintiff lacked standing to seek injunctive relief because she was unlikely to purchase defendants’ flushable wipes in the future; (2) plaintiff had failed to adequately allege why the representation “flushable” on the package was false; and (3) plaintiff had failed to allege damage under the UCL, FAL, CLRA, or common law fraud causes of action because she had not alleged that she suffered any harm due to her use of the wipes.  Plaintiff appealed.Knowledge that an Advertisement Is False Does Not Foreclose Injunctive Relief.  The crux of the panel’s decision addressed the split in district court decisions as to whether a plaintiff seeking an injunction requiring a company to cease allegedly deceptive labeling can establish Article III standing once he or she understands the truth of an alleged misrepresentation.  On one side, courts would conclude that a plaintiff lacked standing because, now aware that an advertisement is false, he or she could not be misled by it in the future.  On the other side, courts would conclude that a plaintiff has standing because “the plaintiff may be unable to rely on the defendant’s representations in the future, or because the plaintiff may again purchase the mislabeled product.”The panel resolved the split in favor of plaintiffs seeking injunctive relief, holding that a consumer who is aware that a label is falsely advertised still suffers an actual threat of future harm necessary for Article III standing because, without an injunction, he or she may be unable to rely on the labeling in the future or might reasonably, but incorrectly, believe that the product has improved.  “Either way,” the panel held, “we are ‘not persuaded that injunctive relief is never available for a consumer who learns after purchasing a product that the label is false.’”  (citation omitted).  The panel noted that its decision alleviated concerns that the opposite conclusion would effectively gut California’s consumer protection laws as an injunction is the primary form of relief under those statutes.The First Amended Complaint Adequately Alleged Why the Term “Flushable” Was False and Alleged Sufficient Harm.  The panel also reversed the district court’s holding that plaintiff failed to allege that “flushable” was false and failed to allege sufficient economic harm.  As to the former, the panel found that plaintiff had adequately alleged that the term “flushable” was false by claiming that the wipes did not “disperse and disintegrate within seconds or minutes.”  Dismissal on this basis was therefore inappropriate.  As to the latter, the panel held that plaintiff had sufficiently pled an economic injury by alleging that she was exposed to false information about a product, which caused the product to be sold at a higher price, and that absent the misrepresentation, she would not have purchased the product or would have paid less for it.  This is all that California law requires, the panel confirmed.Takeaway.  Davidson forecloses the argument that a plaintiff lacks injunctive standing because he or she now knows the truth about an allegedly false advertisement.  But the panel’s decision may be cabined to the facts:  a situation where a plaintiff expresses interest in buying a product but cannot rely on the label because the company continues to use the allegedly false statement.  But what if a plaintiff has no interest in purchasing a challenged product again or if a company voluntarily discontinues use of a challenged statement?  Davidson doesn’t speak to whether a plaintiff would have injunctive standing under these circumstances.  In fact, the Ninth Circuit is addressing whether a plaintiff has injunctive standing based on these facts in the Victor v. Bigelow and Khasin v. Bigelow appeals, which were heard on November 15, 2017.  The plaintiff in Bigelow relied heavily on Davidson, but the Bigelow panel suggested that Davidson was distinguishable.  See Victor v. Bigelow, No. 16-16639 (9th Cir. argued Nov. 15, 2017); Khasin v. Bigelow, No. 16-16641 (9th Cir. Argued Nov. 15, 2017).Davidson nevertheless helps define the contours of injunctive standing in the misbranding context and puts to rest disagreement in the Ninth Circuit as to the fundamentals of these standing requirements.  The Ninth Circuit will continue to refine these standards in the Bigelow and similar appeals addressing different factual circumstances.  We will provide relevant updates when these decisions are released.

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Ninth Circuit Finds Lower Court Erred in Flushing “Flushable” Wipes False Advertising Claims

Kimberly-Clark Seeks Supreme Court Review in “Flushable” Wipes Case

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On October 20, 2017, a unanimous Ninth Circuit panel in Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017), resolved a circuit-wide split on injunc

Ninth Circuit Finds Lower Court Erred in Flushing  “Flushable” Wipes False Advertising Claims

With the holidays and end of the year quickly approaching, here is what food and beverage manufacturers and sellers need to know before the temporary Proposition 65 safe harbor warning for Bisphenol A (BPA) exposures expires on December 30, 2017.Read our <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltb25a3161dc0c3b74/627315568e09542a15b7de57/171128-prop-65-safe-harbor.pdf" target="_blank" rel="noopener noreferrer">Law360 article</a>.

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Expiring Soon: Temporary BPA Warning Regs Under Prop. 65

Expiring Soon: Temporary BPA Warning Regs Under Prop. 65

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With the holidays and end of the year quickly approaching, here is what food and beverage manufacturers and sellers need to know before the temporary Propositio

On October 15, 2017, California Governor Jerry Brown signed into law Senate Bill 258, known as the Cleaning Product Right to Know Act of 2017. The Act requires manufacturers of most cleaning products sold in California to disclose detailed information regarding their chemical content on the product label and on the manufacturers’ websites. While several California laws—such as Proposition 65 and the Green Chemistry Initiative—require some degree of product ingredient transparency, no prior California law has gone this far.Companies that manufacture or sell cleaning products in California should begin to familiarize themselves with these new requirements as soon as possible, as the Act requires major changes to current labeling and disclosure practices, which may prove to be costly and time-consuming to implement. This client alert provides an overview of the Cleaning Product Right to Know Act’s key requirements.

In re Lumber Liquidators Chinese Laminate Litigation

Maxus Energy Corporation

In re Hydroxycut Personal Injury and Class Action Litigation

Los Angeles World Airport (LAWA)

Environmental Law Foundation v. Beech-Nut Nutrition Corp., et al

Fitbit Force Recall 

People of the State of California v. The Coca-Cola Company

Seagate Technology LLC

Clif Bar, Inc.

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Drawing on his considerable experience in environmental health, William (Bill) focuses his practice on environmental and consumer protection law, with an emphasis on climate-related goals and claims, hazardous substances, mass torts, and consumer product safety.

William Tarantino

Drawing on his considerable experience in environmental health, William (Bill) focuses his practice on environmental and consumer protection law, with an emphasis on hazardous substances, mass torts, and consumer product safety.

William F. Tarantino

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Full Disclosure: New Labeling for Cleaning Products

Full Disclosure: New Labeling for Cleaning Products

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