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

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

<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

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class action lawsuits. Claudia also regularly counsels clients in the food, cosmetics, retail, and technology industries. She represents companies in false advertising disputes before the National Advertising Division (NAD) of the Council of Better Business Bureaus, Inc.<h5>More about Claudia</h5>Claudia is active in MoFo’s pro bono efforts, and recently traveled to El Paso, Texas, to work with families separated and detained at the border. She is also supervising a pro bono collaboration with Equal Rights Advocates, a nonprofit fighting for gender justice in work places and schools across the country. The initiative will help students who have been victims of sexual assault, attempted assault, or harassment find support and seek justice. Claudia is also a board member of Bay Area Legal Aid and a former board member of Equal Rights Advocates. Claudia is an editor and frequent contributor to MoFo’s <a href="https://classdismissed.mofo.com/">Class Dismissed</a> blog, which provides reports about the latest defense news, developments, and trends in class action lawsuits and product liability issues that affect consumer-facing companies. Her perspectives are also respected in the larger legal community: Claudia has published articles about class action and false advertising issues, and is a co-author of Chapter 7 — “Unfair Competition in California Business Litigation 2016” — of The Recorder. She also regularly speaks at conferences on class action and advertising trends. Claudia is currently serving as a Lawyer Representative for the Northern District of California. She received her J.D. degree in 2004 from Berkeley Law (Boalt Hall School of Law), where she was an associate editor of the Berkeley Technology Law Journal.

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Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class actions.

Claudia M. Vetesi

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

Adam J. 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.Mr. Hunt has extensive experience representing consumer products companies, financial institutions, and technology firms in class action cases and complex commercial disputes before state and federal trial courts, as well as in arbitrations. Clients seek Mr. Hunt’s counsel for his creative, strategic thinking in high-stakes, high-profile matters. He has represented clients facing claims under false advertising, antitrust, and privacy laws throughout the country, securing wins at the pleading stage, summary judgment, and trial, in addition to negotiating favorable settlements, often early in the case. Representative experience includes successfully securing rulings dismissing two putative false advertising class action cases against one of the best-known consumer electronics companies in the world; obtaining a complete win on summary judgment for a major shipping and logistics company in a multimillion-dollar commercial dispute; appearing as counsel at trial for a leading financial institution in a $100 million commercial dispute, winning a bench trial verdict; and prevailing on motions to dismiss false advertising class actions against a leading Greek yogurt company.Mr. Hunt is also an editor of the firm’s <a href="https://classdismissed.mofo.com/" target="_self">Class Dismissed blog</a>, which provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class action lawsuits that affect consumer-facing companies.Mr. Hunt maintains an active pro bono practice and is the recipient of the New York State Bar Association’s 2017 President’s Pro Bono Service Award for the First Judicial Department, the 2018 Public Service Award from New York University School of Law, and Morrison Foerster’s Kathi Pugh Award for Pro Bono Services.Mr. Hunt received his B.A. with honors from Swarthmore College and his J.D. cum laude from New York University.

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Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

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Alexandra Preece Barlow

Adam J. Hunt

The Future of Section 230: Protection Against Product Liability Claims?

New Wave of PFAS Legislation Aimed at Consumer Products

CPSC Releases Annual Report on Deaths and Injuries Involving Nursery Products

CPSC Proposes New Safety Rules for Infant Rockers

CPSC Commissioners Abstain from Retracting Infant Sleep Product Statements

A few years back, the Northern District of California was dubbed the “food court” based on the influx of food misbranding class actions claiming that alleged FDA regulatory infractions constituted violations of California consumer deception statutes.  The first cases in the misbranding pack were appealed to the Ninth Circuit, with plaintiffs challenging district courts’ denials of class certification and grants of summary judgment in favor of defendants, while the matters filed later were stayed pending the Ninth Circuit’s guidance on these class certification and summary judgment issues.  Now, the Ninth Circuit has weighed in on a few of the pending misbranding appeals.  But its decisions thus far raise more questions rather than provide clear answers.  Below, we review the status of key Ninth Circuit misbranding appeals as well as the impact of these decisions on class certification and summary judgment standards going forward.Summary of Status of Food Misbranding Appeals1. Brazil v. Dole (No. 14-17480). On September 30, 2016, in an unpublished decision, the Ninth Circuit reversed the district court’s grant of summary judgment in favor of Dole, but upheld the court’s decision to decertify the class.  See Brazil v. Dole Packaged Foods, LLC, 660 F. App’x 531 (9th Cir. 2016).<ul><li>Class Certification.  The Ninth Circuit confirmed that the court did not err in finding that the plaintiff’s damages model failed to correctly isolate a price premium. The court further confirmed that price premium was the correct measure of damages for claims that a product was misleading.</li><li>Summary Judgment. The court held that plaintiff’s deposition testimony stating that he was misled by Dole’s “all natural fruit” labels—along with letters from the FDA to other companies regarding “natural” label statements and conflicting testimony on the subject—were sufficient to create a material issue of fact to survive summary judgment.  The court, however, rejected the plaintiff’s “illegal product theory”—i.e., that possession of a “misbranded” product was “illegal,” and accordingly found that any alleged misrepresentations or deception did not amount to unlawful conduct under California’s Unfair Competition Law (UCL).</li></ul>2. Briseno v. ConAgra (No. 15-55727). On January 3, 2017, in a published decision, the Ninth Circuit affirmed the district court’s certification of 11 statewide classes and addressed the circuit split regarding standards of ascertainability. Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017).  ConAgra filed a petition for certiorari with the U.S. Supreme Court, which drew amici support on both sides and is now fully briefed and awaiting a decision on whether it will be heard in the 2018 Term.<ul><li>Class Certification. In Briseno, the Ninth Circuit found that there was no ascertainability requirement for class certification, i.e., there is no requirement that a plaintiff demonstrate that there is an administratively feasible means of identifying absent class members.  The court’s conclusion runs contrary to the Third Circuit’s decision in Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013) and its progeny.  The Ninth Circuit stated, however, that it will continue to address ascertainability-related issues, including overbroad class definitions or uninjured class members, through other Rule 23 requirements, such as superiority, commonality, or predominance.  Notably, Briseno did not present a factual situation, such as in Bruton v. Gerber, Jones v. ConAgra, or Kosta v. Del Monte (discussed below), where companies argued that label changes throughout the class period rendered it impossible to identify which consumers were exposed to challenged statements and, accordingly, who was included in the class.</li></ul>3. Bruton v. Gerber (No. 15-15174). As we previously <a href="http://classdismissed.mofo.com/food-misbranding/ninth-circuit-revives-gerber-baby-food-class-action/">reported</a>, on April 19, 2017, in an unpublished memorandum, the Ninth Circuit reversed the district court’s class certification and summary judgment orders.  Bruton v. Gerber Prod. Co., No. 15-15174, 2017 WL 1396221 (9th Cir. Apr. 19, 2017).  After Gerber petitioned for rehearing, challenging the court’s summary judgment decision, the Ninth Circuit issued an updated memorandum on July 17, 2017, in which it modified the summary judgment portion of its order.  Bruton v. Gerber Prod. Co., No. 15-15174, 2017 WL 3016740 (9th Cir. July 17, 2017).<ul><li>April 2017 Order (“Bruton I”).<ul><li>Class Certification.  The court found that the district court’s denial of class certification on grounds that the class was unascertainable contravened the Ninth Circuit’s later decision in Briseno that ascertainability was not a perquisite to certification. Unlike Briseno, however, Bruton involved significant label variations during the class period.  The Ninth Circuit did not address these facts, however.  Instead, it reversed and remanded the case to the district court to determine if class certification was appropriate.<a href="#_ftn1" name="_ftnref1">[1]</a></li><li>Summary Judgment. The court held that the following evidence was sufficient to raise a material issue of fact as to whether Gerber’s labels were deceptive:  (1) the labels themselves, especially when compared to competitor labels that allegedly omitted challenged statements; (2) plaintiff’s deposition testimony that she was deceived; and (3) FDA warning letters to Gerber regarding alleged noncompliance with applicable nutrient content regulations.  The court also found that plaintiff did not need to offer proof of deception to support her unlawful UCL claim, as the particular FDA nutrient content regulations that plaintiff alleged Gerber violated did not require evidence of consumer deception.  In this case, “misbranding” was sufficient.</li></ul></li><li>July 2017 Order (“Bruton II”).<ul><li>Class Certification. The court did not make changes to its class certification ruling, so its reliance on Briseno</li><li>Summary Judgment. On rehearing, the court reversed its prior ruling that the plaintiff had provided sufficient evidence of deception, instead finding that: (1) Gerber’s competitors used the same challenged statements, so the record contravened plaintiffs’ theory that Gerber’s labels were comparatively misleading; (2) plaintiff’s testimony about being misled was “uncorroborated” and “self-serving”; and (3) FDA warning letters to Gerber, “in addition to being informal and nonbinding,” did not indicate that Gerber’s competitors complied with the law, and therefore did not support plaintiff’s theory that Gerber’s labels were misleading in comparison to competitors’ labels.</li></ul></li></ul>Despite reversing course on its deception ruling, the court upheld its prior ruling, however, on the UCL’s unlawful prong, finding that the alleged FDA regulatory violations on which plaintiff’s unlawful claim was predicated do not require a showing of consumer deception.  The court therefore still reversed the district court’s grant of summary judgment on this ground.4. Jones v. ConAgra (No. 14-16327).Jones, one of the first misbranding appeals filed, concerns ascertainability and predominance issues arising from label variations as well as class certification damages.  The Ninth Circuit stayed plaintiffs’ appeal of the district court’s class certification denial, however, pending the Supreme Court’s decision in Microsoft v. Baker as to whether plaintiffs could—as they did in Jones—voluntarily dismiss their claims to immediately appeal the district court’s class certification order.  As we recently <a href="http://classdismissed.mofo.com/consumer-products/supreme-court-slams-the-back-door-around-rule-23f-in-microsoft-v-baker/">reported</a>, the Supreme Court has confirmed that this tactic violates the spirit and process of Rule 23(f) and is therefore an improper vehicle for appeal.  The plaintiffs in Jones recently agreed to voluntarily dismiss their appeal, likely in light of Baker.  The Ninth Circuit accordingly will not review the important class certification raised by the Jones appeal.5. Kosta v. Del Monte (No. 15-16974). The Kosta appeal also concerns ascertainability and commonality issues based on variations in challenged label statements throughout the class period.  Kosta, however, was also appealed based on a Baker voluntary dismissal, and the plaintiffs also recently agreed to voluntarily dismiss the case.Takeaways and Remaining Questions<ul><li>Class Certification Damages. The argument that plaintiffs cannot present a viable damages model that is consistent with the Supreme Court’s requirements in Comcast v. Behrend appears to be the strongest blow to class certification.  The Ninth Circuit has confirmed that price premium is the proper measure of damages in a misbranding claim, as plaintiffs’ “full refund” model overcompensates the class and is inconsistent with plaintiffs’ theory of liability that companies can charge more for a product because of misleading claims.  But plaintiffs have been hard-pressed to provide a damages model (such as regression or conjoint analysis) that isolates the price premium associated with a challenged label statement while controlling for other factors that impact price.  This is a battle of the experts that plaintiffs are thus far losing.  But it is unclear what model would pass muster.</li><li>Ascertainability. With Briseno and Bruton, the Ninth Circuit has essentially rejected ascertainability as a separate requirement to class certification, but has indicated that ascertainability issues—such as overbreadth or uninjured class members—can be addressed through other Rule 23 requirements.  The Ninth Circuit has also dodged the issue of how label changes throughout the class period impact certification, as the remaining appeals that addressed the issue—Jones and Kosta—were dismissedproceed in light of Baker.  Thus, as of now, the issue of whether changes in label statements over the class period can defeat class certification is unresolved.</li><li>Summary Judgment. The Ninth Circuit’s unpublished decisions in Brazil and Bruton II similarly lead to more questions than answers.  Regarding deception, the court in Brazil found that plaintiff raised a material issue of fact based on the plaintiff’s testimony that he was misled, FDA warning letters to other companies, and conflicting testimony on the meaning of “natural.”  But in Bruton II, the court found that the plaintiff’s testimony that she was misled, FDA warning letters to Gerber, and the labels themselves were insufficient to raise a material issue as to deception.  The Ninth Circuit’s position in these two decisions is accordingly inconsistent, and the fault line on what constitutes sufficient or insufficient evidence of deception remains unclear.</li></ul>Similarly, while Brazil confirms that allegations of deception will not give rise to an unlawful claim in the context of alleged “all natural” violations, Bruton finds that alleged violations of FDA nutrient content regulations are sufficient to state an unlawful claim, as such violations do not require a finding of consumer deception.  Whether a plaintiff can state an unlawful claim separate and apart from alleging deception therefore appears to turn on the nature of the alleged regulatory violations at issue.We will continue to provide updates on changes to the Ninth Circuit’s “food court” menu and the impact on class certification and summary judgment issues based on the court’s decisions.<a href="#_ftnref1" name="_ftn1">[1]</a> The Ninth Circuit also reversed the district court’s dismissal of the plaintiff’s unjust enrichment/quasi-contract claim, finding that the California Supreme Court had confirmed that unjust enrichment is a standalone claim under California law after the district court issued its order.

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy mat

Claudia Vetesi

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The Ninth Circuit’s Food Court Menu: A Status Update

The Ninth Circuit’s Food Court Menu: A Status Update

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A few years back, the Northern District of California was dubbed the “food court” based on the influx of food misbranding class actions claiming that alleged FD

President Trump announced yesterday his intent to nominate Jones Day partner Dana Baiocco to the position of Commissioner of the Consumer Product Safety Commission (CPSC) for a 7-year term starting next month. She will replace Obama-appointed Commissioner Marietta Robinson. As we had <a href="http://classdismissed.mofo.com/product-liability/shift-in-cpsc-leadership-means-more-changes-to-come/" target="_blank" rel="noopener">predicted</a>, the makeup of the CPSC will shift from a 3-2 Democratic majority to a 3-2 Republican majority if Baiocco is confirmed. Expect to see less and fewer penalties under a Republican-majority Commission with fewer opponents to Acting Chairman Ann Marie Buerkle’s philosophy of deregulation.Here is the text of the White House press release issued yesterday:Dana Baiocco of Ohio to be Commissioner of the Consumer Product Safety Commission for a 7-year term beginning October 27, 2017. Ms. Baiocco was born and raised in Yorkville, Ohio. She graduated from Ohio University in 1998 [sic] and from Duquesne University School of Law in 1997, cum laude. She served as a federal judicial law clerk to The Honorable Gustave Diamond, U.S. District Court for the Western District of Pennsylvania, from 1996-1998. Ms. Baiocco joined the law firm of Jones Day in 1998 in the Pittsburgh, Pennsylvania office, and became a partner [in] 2007. She was one of the founding partners of Jones Day’s Boston office, which opened in 2011. She is a member of the Pennsylvania and Massachusetts Bar Associations, served as the chairwoman of the Pennsylvania Bar Association House of Delegates from 2009 to 2011 and also served on its board of governors. She is also a member of the Boston Bar Association. She currently lives in Boston with her husband, Andrew F. Susko and her daughter, Ava Bruening.

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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Erin Bosman is chair of MoFo’s Class Actions and Mass Torts Practice Group and is a founder and co-head of the Artificial Intelligence 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 chair of MoFo’s Class Actions and Mass Torts Practice Group and is a founder and co-head of the Artificial Intelligence 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

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

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Trump to Nominate New Commissioner to CPSC

Nevada Enacts CCPA-Style Opt-Out Right for Consumers—but Similarities Are Few

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President Trump announced yesterday his intent to nominate Jones Day partner Dana Baiocco to the position of Commissioner of the Consumer Product Safety Commiss

Trump to Nominate New Commissioner to CPSC

One year ago, the federal government test drove its first set of self-driving policies with a four-part <a href="https://www.transportation.gov/AV-factsheet" target="_blank" rel="noopener">announcement </a>from the U.S. Department of Transportation. In twelve months, much has changed, but the wheels are still turning.The U.S. House of Representatives earlier this month passed the bipartisan Safely Ensuring Lives Future Development and Research in Vehicle Evolution (SELF DRIVE) Act. The SELF DRIVE Act continues the work of clarifying state and federal government roles as well as the federal government’s responsibilities with regard to safety, cybersecurity, privacy, and consumer education.Although SELF DRIVE has now launched, the engine is still heating up: The U.S. Senate is still developing its approach to federal policy in this space. Last week, the U.S. Senate held a hearing to this end, inviting experts on self-driving trucks to <a href="https://www.commerce.senate.gov/public/index.cfm/pressreleases?ID=BAC7FBCE-424B-4C61-8082-71B3E3D9333B" target="_blank" rel="noopener">testify </a>before its Commerce Committee. This latest action built on a set of bipartisan “principles” for <a href="https://www.commerce.senate.gov/public/index.cfm/pressreleases?ID=3319E728-1F3A-4316-8F7E-8CAF66000F8C" target="_blank" rel="noopener">legislation </a>that the U.S. Senate had released in June.The Executive Branch has also announced a change to its approach. Specifically, U.S. Department of Transportation Secretary Chao unveiled <a href="https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/13069a-ads2.0_090617_v9a_tag.pdf" target="_blank" rel="noopener">“A Vision for Safety: 2.0” i</a>n Michigan <a href="https://www.transportation.gov/briefing-room/av-summit" target="_blank" rel="noopener">last week. </a>As Secretary Chao noted, this “replaces the Federal Automated Vehicle Policy Version 1.0” released last year, but it is not the Department’s final word: “DOT and NHTSA are already planning for Version 3.0 in 2018!”In short, for federal self-driving policy, the wheels are still turning – and the regulatory landscape will most certainly continue to evolve over the coming weeks and months.

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Wheels Are Turning on Federal Self-Driving Policy

Wheels Are Turning on Federal Self-Driving Policy

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One year ago, the federal government test drove its first set of self-driving policies with a four-part announcement from the U.S. Department of Transportation.

On August 17, 2017, the Second Circuit Court of Appeals vacated a district court’s denial of Uber’s and Mr. Travis Kalanick’s motions to compel arbitration in a case involving price-fixing accusations.  In Meyer v. Kalanick, No. 16-2750 (2d Cir. Aug. 17, 2017), the Second Circuit held, as a matter of law, that plaintiff Spencer Meyer received objectively reasonable notice of the terms of service and unambiguously assented by clicking “register” on his smartphone when he signed up to use Uber’s services.  The Second Circuit also remanded for consideration of whether Uber and Mr. Kalanick waived the right to compel arbitration by defending the lawsuit.This was a heavily watched case with amici support on both sides.  The foes of arbitration hoped to use Meyer to call into question the viability of all click-through protocols that many companies use for their terms and conditions, not just Uber.Background of the Case.  In 2015, Mr. Meyer, on behalf of a putative class of Uber riders, filed an action against Mr. Kalanick, alleging that the Uber App allows drivers to fix prices amongst themselves, in violation of the Sherman Act, 15 U.S.C. § 1, and the Donnelly Act, N.Y. Gen. Bus. Law § 340.  Uber was subsequently joined as a defendant in 2016.  Uber and Mr. Kalanick filed motions to compel Meyer to arbitrate.  Judge Rakoff of the Southern District of New York denied the motions, concluding that Mr. Meyer did not have reasonably conspicuous notice of the terms of service and did not unambiguously manifest assent to the terms.  See Meyer v. Kalanick, 200 F. Supp. 3d 408, 420 (S.D.N.Y. 2016).  The district court did not reach Meyer’s other defenses to arbitration, including whether defendants waived their right to arbitrate by actively participating in the litigation.The District Court’s Determinations Were Subject to De Novo Review.  Plaintiff argued that the Second Circuit was limited to clear-error review of the district court’s findings and legal conclusions.  The Second Circuit disagreed, finding that it would review de novo the denial of a motion to compel arbitration.  While factual findings upon which a conclusion was based would be reviewed for clear error, the facts in Meyer were undisputed.Beyond “Clickwrap” and “Browsewrap.” The court discussed web-based contracts, noting that it had previously distinguished web-based contracts as either “clickwrap” or “browsewrap” agreements.  “Clickwrap” agreements, which courts routinely uphold, require a user to click an “I agree” box after being presented with the terms and conditions of use.  “Browsewrap” agreements, on the other hand, generally post terms and conditions on a website via a hyperlink at the bottom of the screen.  Because no affirmative action is required in “browsewrap” agreements, the determination of the validity of these agreements depends on whether the user has actual or constructive knowledge of the terms and conditions.  The Second Circuit noted, however, that not all interfaces would fit neatly into the “clickwrap” or “browsewrap” categories.  As such, classification of web-based contracts would not resolve the notice inquiry. The Parties Mutually Assented to the Agreement.  Under California law, the Second Circuit considered whether the undisputed facts established that there was: (1) reasonably conspicuous notice of the existence of contract terms; and (2) unambiguous manifestation of assent to those terms.  Analyzing Uber’s agreement, the court found both requirements were established.In analyzing the first requirement, the court considered “the perspective of a reasonably prudent smartphone user.”  Looking at the interface at issue in the case, the court concluded that the design of the screen and language used rendered the notice provided reasonable as a matter of law.  First, the registration payment screen was uncluttered.  The text on that screen advised Uber users that “By creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY.”  This text, along with a hyperlink to the terms of service, appeared directly below the buttons for registration.  Even more, the entire screen was visible without scrolling.  Finally, although the text was in a small font, its dark print contrasted with the bright white background, and the hyperlinks were in blue and underlined.The court also found that the fact that the terms of service were available by hyperlink did not preclude a determination of reasonable notice because the hyperlinked text was reasonably conspicuous.  Additionally, the court disagreed with the district court’s determination that the location of the arbitration clause within the terms of service was itself a “barrier to reasonable notice.”  Accordingly, the Uber App provided reasonably conspicuous notice as a matter of law.In analyzing the second requirement, the court found that although Meyer’s assent to arbitration was not express, it was unambiguous in light of the objectively reasonable notice of the terms.  A reasonable user would know that, by clicking the registration button, he or she was agreeing to the terms and conditions accessible via the hyperlink.  Plaintiff argued that the fact that clicking the register button had two functions—creation of a user account and assent to the terms of service—rendered plaintiff’s assent ambiguous.  The court disagreed.  The physical proximity of the notice  regarding the terms of service to the register button made clear to a user that the linked terms pertained to the action the user was about to take.The court concluded that, as a matter of law, Meyer agreed to arbitrate his claims with Uber.The District Court Would Decide the Issue of Waiver.  Plaintiff argued in the alternative that defendants waived their right to arbitrate by actively litigating the underlying lawsuit.  Although a defense of waiver would normally be decided by the arbitrator, the court found that, here, the district court could properly decide the question because defendants had participated in litigation.  As such, the court remanded the case to the district court to consider whether defendants had waived their right to arbitrate.The court’s decision signals what factors at least one Court of Appeal will consider in determining the validity of consent in hybrid agreements—those agreements that don’t fall expressly into the “clickwrap” or “browsewrap” categories.  It also confirms the validity of the electronic registration process used by Uber and many other companies.Request to amend its opinion denied.  On Tuesday, August 29, 2011, the Second Circuit denied Plaintiff’s motion to have the Second Circuit amend its August 17, 2017 opinion.  Plaintiff requested that the Second Circuit include language in its opinion stating that the district court could consider the extent to which Plaintiff may have been unable to see Uber’s Terms of Service hyperlink (an argument made by plaintiff in Metter v. Uber Technologies, Inc., Case No. 3:16-cv-06652-RS).  The Court denied the motion without prejudice to Plaintiff raising the issue in the district court in the first instance.

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Second Circuit Scraps District Court’s Denial of Uber’s Motion to Compel Arbitration

Second Circuit Scraps District Court’s Denial of Uber’s Motion to Compel Arbitration

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On August 17, 2017, the Second Circuit Court of Appeals vacated a district court’s denial of Uber’s and Mr. Travis Kalanick’s motions to compel arbitration in a

In a unanimous vote, the U.S. Consumer Product Safety Commission (CPSC) eliminated third-party testing for compliance with CPSC’s phthalates prohibitions for seven plastics.  The Commission decided that these plastics with specified additives do not contain concentrations above 0.1% of the phthalates prohibited in children’s toys and child care articles.Phthalates are sometimes used in children’s products as plasticizers, which work to soften plastic components.  The Consumer Product Safety Improvement Act of 2008 (CPSIA) prohibits the manufacture for sale, offer for sale, distribution in commerce, or importation into the United States of any children’s toy or child care article that contains concentrations above 0.1% of specified phthalates.  Children’s toys and child care articles subject to these restrictions are required to satisfy third-party compliance testing before the items can enter the stream of commerce.The rule approved by CPSC, which will go into effect on September 29, 2017, establishes that the following plastics with specified additives do not contain statutorily prohibited phthalates in concentrations above 0.1%, and third-party testing is therefore not necessary to ensure compliance with the CPSIA:<ul><li>Polypropylene (PP)</li><li>Polyethylene (PE)</li><li>General Purpose Polystyrene (GPPS)</li><li>Medium-Impact Polystyrene (MIPS)</li><li>High-Impact Polystyrene (HIPS)</li><li>Super High-Impact Polystyrene (SHIPS)</li><li>Acrylonitrile Butadiene Styrene (ABS)</li></ul>Children’s toys and child care articles containing concentrations of more than 0.1% of six prohibited phthalates will continue to be regulated under the CPSIA; however, this decision will significantly reduce the burden of third-party testing and certification for companies that manufacture, sell, or distribute children’s products.  <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltc26da982c278df46/6273156cb5ad5f2863c59558/150128phthalateban.pdf" target="_blank" rel="noopener noreferrer">Click here</a> for more information regarding CPSC’s phthalate requirements.

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Associate

Brittany Scheinok is an associate in the Litigation Department of the firm’s San Diego office.

Brittany Scheinok

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CPSC Removes Third-Party Testing Requirements for Children’s Products with Certain Plastics

CPSC Removes Third-Party Testing Requirements for Children’s Products with Certain Plastics

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In a unanimous vote, the U.S. Consumer Product Safety Commission (CPSC) eliminated third-party testing for compliance with CPSC’s phthalates prohibitions for se

Last month, the U.S. Supreme Court clarified the scope of specific personal jurisdiction in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S. Ct. 1773 (2017) (“BMS”). Mass tort defendants have wasted little time in moving to dispose of claims from nonresident plaintiffs under this ruling.As previously reported, on June 19, 2017, the Supreme Court decided a longawaited specific jurisdiction question in favor of Bristol-Myers Squibb Co. This case arose when a group of consumers — consisting of 86 California residents and 592 residents from 33 other states — brought tort claims in California state court, alleging injuries from using Plavix, a prescription drug that thins blood and inhibits blood clotting.Please see our full article as published on <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltfcf96f27d9e40dc8/6273156d5f7b601eaaebcf5e/170803-bristol-myers-squibb.pdf" target="_blank" rel="noopener noreferrer">Law360</a>.