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

Does a federal court have jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice? That is the question the Supreme Court will consider in Microsoft Corp. v. Baker, Docket No. 15-457. Class action plaintiffs have increasingly relied on this tactic to obtain immediate appellate review of district court denials of class certification decisions, even where the Court of Appeals has denied discretionary review under Rule 23(f). The Supreme Court’s decision in Baker will determine whether plaintiffs may continue this practice.Baker Background.  The Baker case concerns a challenge to Microsoft’s Xbox 360 game console. A group of plaintiffs filed an action in the Western District of Washington in 2007, alleging that the Xbox drive scratched game disks during normal game play. The district court denied certification, finding that only a small percentage of the consoles actually manifested the defect, and that determining whether scratching resulted from a defect versus misuse would require individual inquires. The plaintiffs filed a 23(f) petition with the Ninth Circuit, but the Ninth Circuit denied the petition.In 2011, the Baker plaintiffs—who had opted out of the original action—filed a virtually identical lawsuit in the same District, arguing that an intervening Ninth Circuit decision required a different result. The district court disagreed, striking Baker’s class allegations.  Plaintiffs again filed a 23(f) petition, which the Ninth Circuit again denied.The Baker plaintiffs then voluntarily dismissed the case with prejudice. Their express purpose was to obtain immediate Ninth Circuit review of the district court’s class certification order.The Ninth Circuit Reviews the Case.  Plaintiffs filed an appeal from the court’s final judgment, challenging the court’s class certification decision. Microsoft argued that permitting the appeal allowed plaintiffs to end run Rule 23(f), which expressly governs appellate review of class certification decisions and gives the appellate court discretion to grant or deny interlocutory appeals of such decisions. The Supreme Court in Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), rejected former decisions requiring federal courts to accept immediate appeals of class certification denials to avoid the “death knell” of class claims, finding that the benefit to plaintiffs was outweighed by the burden on judicial resources in requiring immediate review. Congress then adopted Rule 23(f) in 1998 as a compromise to address the “death knell” issue, permitting plaintiffs to petition a Court of Appeals to grant discretionary, interlocutory review for any reason—including because the costs of litigation exceed the plaintiff’s individual claim—while at the same time rejecting immediate appeals as of right from class certification decisions.The Ninth Circuit ignored Microsoft’s arguments. Relying on its prior decision in Berger v. Home Depot USA, Inc., 741 F.3d 1061 (9th Circ. 2014), the court focused on the existence of an actual controversy, stating that “‘in the absence of a settlement, a stipulation that leads to a dismissal with prejudice does not destroy the adversity in that judgment necessary to support an appeal….’” Baker v. Microsoft Corp., 797 F.3d 607, 612 (9th Cir. 2015), cert. granted in part, 136 S. Ct. 890, 193 L. Ed. 2d 783 (2016) (quoting Berger, 741 F.3d at 1064).Microsoft filed a petition for a writ of certiorari. The Supreme Court granted the petition on January 15, 2016.Supreme Court Status Update.  Microsoft and amici filed their opening briefs in March. Microsoft argues that Plaintiffs’ voluntary dismissal tactic violates Livesay and thwarts the discretionary review process created under Rule 23(f). Microsoft also argues that, because plaintiffs voluntarily dismissed their case, there is no longer a case or controversy required for Article III jurisdiction and plaintiffs’ claims are moot.Plaintiffs filed their responding brief on May 16. They argue that prohibiting appeals of class certification decisions from voluntary dismissals will undermine class actions, as the cost of litigating individual claims vastly exceeds the minimal value of such claims. They contend that the Supreme Court’s holding in United States v. Procter & Gamble, 356 U.S. 677, 680-681 (1958), in which the Court rejected the defendant’s argument that it lacked jurisdiction because the United States had requested dismissal of its claims, forecloses Microsoft’s argument.  Microsoft’s “atextual” reading of Rule 23(f) and the “final judgment” rule under 28 U.S.C. 1291, Plaintiffs argue, fails as a matter of law and policy.Baker’s Bottom Line.  The Baker decision promises to clarify the viability of a current trend in class action litigation: lose class certification, dismiss the case with prejudice, and then file for appeal. While Plaintiffs risk losing their individual claims if their appeal is denied, they view the ability to obtain immediate review of the district court’s class certification decision as being worth it.If the Supreme Court in Baker sides with Microsoft, this practice will end. Moreover, the Supreme Court’s decision may impact current Ninth Circuit food misbranding decisions on appeal, such as Jones v. ConAgra, which reached the Ninth Circuit through this practice. An early decision in Microsoft’s favor could deprive the Ninth Circuit of jurisdiction to hear Jones and similar cases altogether.

Class Dismissed . . . But not Quite: Supreme Court to Review Appealability of Class Certification Denials When Plaintiffs Voluntarily Dismiss Case

Does a federal court have jurisdiction to review an order denying class certification after the named plaintiffs voluntarily dismiss their claims with prejudice

Class Dismissed . . . But not Quite: Supreme Court to Review Appealability of Class Certification Denials When Plaintiffs Voluntarily Dismiss Case

On April 12, 2016, in Chen, et al. v. Allstate Insurance Co., No. 13-16816, the Ninth Circuit considered whether an unaccepted offer of judgment and tender of payment under Federal Rule of Civil Procedure 68 to fully settle—and thereby moot—a plaintiff’s individual claims would also moot putative class action claims.  Relying on the Supreme Court’s recent decision in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016), Judge Raymond C. Fisher, writing for the panel, held that an unaccepted offer and tender of payment was not sufficient to moot a plaintiff’s class action claims.On February 14, 2013, plaintiff Florencio Pacleb filed a class action complaint against defendant Allstate in the Northern District of California, alleging he received five phone calls from Allstate in violation of the Telephone Consumers Protection Act (TCPA).  In April 2013, Allstate made a Rule 68 offer of judgment to plaintiff to settle his individual claims, plus injunctive relief and attorneys’ fees and costs.  Allstate deposited $20,000 in full settlement in an escrow account, to be paid to plaintiff upon entry of a district court judgment.  When the offer elapsed without a response from plaintiff, Allstate filed a motion to dismiss for lack of subject matter jurisdiction, arguing that because its Rule 68 offer would have satisfied all of plaintiff’s individual claims, his claims were effectively moot.  Allstate also sought dismissal of plaintiff’s class claims, arguing that if plaintiff’s individual claims were mooted, his class claims were also mooted.  District Court judge Phyllis J. Hamilton denied Allstate’s motion to dismiss, and later granted its motion to certify the issue for interlocutory appeal to the Ninth Circuit.Campbell-Ewald’s Unanswered Question While the court agreed with Allstate that its offer of judgment would fully satisfy plaintiff’s individual claims, it rejected Allstate’s argument that this mooted plaintiff’s class claims.  The court relied on Campbell-Ewald to hold that an unaccepted offer of judgment to settle individual claims does not moot class action claims.  (For more information on Campbell-Ewald, see our prior client alert).Campbell-Ewald left unanswered the question of whether the outcome would be different if a defendant deposited the full settlement amount into an account payable to plaintiff, and the court entered judgment for plaintiff in that amount.  Allstate argued that because it deposited the full amount of settlement funds—$20,000 —into an account payable to plaintiff upon entry of judgment, plaintiff’s individual and class claims were mooted.  Relying on Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011), the court held that Allstate’s tender of payment was irrelevant, because even if plaintiff’s individual claims were fully satisfied, an unaccepted Rule 68 offer still would not moot a class action, as long as the plaintiff could still file a timely motion for class certification, which he could.Alternate Reasons to Deny The Court then offered two alternate reasons why plaintiff’s individual and class claims were not mooted by Allstate’s offer of judgment and deposit of funds into an account payable to plaintiff.  First, the Court went on to say that even if Pitts were not controlling, its ruling would not change.  Relying on Campbell-Ewald, the Court held that a plaintiff is entitled to decline an offer of judgment on individual claims in order to pursue relief on behalf of a putative class.  To hold otherwise, the Court reasoned, would allow defendants to use the mootness doctrine to “pick off” named plaintiffs and deny them a fair opportunity to pursue class-wide relief.Second, the Court held that even if Allstate could moot an entire class action by mooting a plaintiff’s individual claims, here plaintiff’s claims were not mooted because under Campbell-Ewald, plaintiff must actually receive all the relief to which he is entitled.  Since Allstate’s release of the $20,000 was contingent on the district court’s dismissal, plaintiff had not yet received funds, and therefore had not received his entitled-to relief.Takeaway Chen is one of several post-Campbell-Ewald cases rejecting defendants’ attempts to moot a putative class action by mooting the named plaintiff’s individual claims.  See, e.g., Weitzner v. Sanofi Pasteur, Inc., No. 14-3423, 2016 WL 1359220 (3d Cir. Apr. 6, 2016); Bais Yaakov of Spring Valley v. Graduation Source, LLC, No. 14-cv-3232 (NSR), 2016 WL 872914, at *1 (S.D.N.Y. Mar. 7, 2016); Brady v. Basic Research, L.L.C., 312 F.R.D. 304, 306 (E.D.N.Y. 2016).  (See our Brady post <a href="http://classdismissed.mofo.com/false-advertising-claims/new-york-federal-court-rejects-first-attempt-since-campbell-ewald-to-moot-class-plaintiffs-claims/">here</a>).However, another judge in the Southern District of New York saw things differently in Leyse v. Lifetime Entertainment Services, LLC, No. 13 Civ. 574 (AKH), 2016 WL 1253607 (S.D.N.Y. Mar. 17, 2016), holding that a defendant’s payment of plaintiff’s individual claims plus court costs required entry of judgment.  (For more information on Leyse, see our <a href="http://classdismissed.mofo.com/tcpa/point-counterpoint-new-york-federal-court-holds-payment-of-plaintiffs-claim-ends-lawsuit-under-campbell-ewald/">post</a>).

No Method to the Mootness: Ninth Circuit Rejects Allstate’s Effort to Moot Class Action Claims

On April 12, 2016, in Chen, et al. v. Allstate Insurance Co., No. 13-16816, the Ninth Circuit considered whether an unaccepted offer of judgment and tender of p

No Method to the Mootness: Ninth Circuit Rejects Allstate’s Effort to Moot Class Action Claims

In response to a provision in the Bipartisan Budget Act of 2015 (Pub. L. No. 114-74), the Federal Communications Commission (FCC or the “Commission”) has promulgated <a href="https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-57A1.pdf" target="_blank">a notice of proposed rulemaking</a> (NPRM) regarding the new exemption in the Telephone Consumer Protection Act (TCPA) for calls made “to collect a debt owed to or guaranteed by the United States.”  47 U.S. Code § 227(b)(1)(A)(iii), (b)(1)(B). The proposed language of the rule would track the statutory language.  The FCC’s analysis in the NPRM, however, suggests that the Commission intends to interpret this exception narrowly, and will impose significant restrictions on calls covered by these provisions. In particular:<ul><li>The FCC suggests that a call “solely to collect a debt” means “only those calls made to obtain payment after the borrower is delinquent on a payment.”  (¶ 8).</li><li>While the FCC proposes that debt servicing calls would be covered, and would include calls made by the creditor and entities acting on behalf of the creditor, the NPRM also proposes restrictions on covered calls—meaning that coverage under this exemption could be a double-edged sword.  (¶¶ 9, 10)  And, only creditors and those calling on their behalf could make calls based on this exemption.  (¶ 15)</li><li>Permissible calls would be “only to the person or persons obligated to pay the debt because it appears impossible that calls to non-debtors by their nature would directly result in collection from the debtor.”  (¶ 13)  Furthermore, the FCC proposes to import the one-call “safe harbor” for a reassigned number from the FCC’s 2015 Omnibus Declaratory Ruling.  In other words, if a wireless number that a debtor provides to a creditor is reassigned, then calls to that number are not exempt, and after one such call the caller will be deemed to have constructive knowledge that “consent” to call that number has been withdrawn.  (¶ 14)</li><li>The FCC proposes to limit the number of covered (i.e., exempt) calls to three initiated calls to a wireless number per month—including calls that may not be answered by a person.  The NPRM reasons that three calls per month “affords callers an opportunity to obtain the debtor’s consent to make additional calls beyond” any adopted limit.  (¶ 18) This would apply to robocalls to wireless numbers, including calls that attempt to connect the called debtor to a live agent.  But the FCC also suggests that it may extend this restriction to calls to residential lines “even though such calls would not have required prior express consent even before” the TCPA was amended.  (¶ 23)</li><li>The FCC also seeks comment on “the maximum duration of a voice call,” whether there should be a limit on the length of covered text messages (¶ 18), and whether there should be a limit on the hours during which such a call could be made (¶ 19).  The NPRM suggests that the limit could be governed by the local time at the called party’s location, which could create a compliance challenge given that individuals may take their cell phones to different time zones.</li><li>The NPRM also proposes that “consumers should have a right to stop [covered calls] at any point the consumer wishes.”  (¶ 20)</li></ul>Commissioner O’Reilly issued a strong partial dissent (approving solely to initiate the rulemaking required by Congress).  He noted in particular that:<ul><li>The proposed limit on the number of calls initiated per month would be inconsistent with other federal requirements to make calls in connection with a delinquency;</li><li>The one-call safe harbor for reassigned numbers is inconsistent with the statutory exemption from the consent requirement for covered calls; and</li><li>The FCC has inappropriately limited covered calls to those pertaining to delinquency or default, while the statute refers only to calls “to collect a debt.”</li></ul>Finally, both Commissioner O’Reilly and Commissioner Pai (who dissented on the ground that federal debt collectors should not be afforded special treatment) criticized the proposed rules because manually dialed calls from equipment that could function as an autodialer in the future might be considered autodialed calls.Comments on the NPRM are due on June 6, 2016.

CCPA and Data Breach Class Action for Leading Software Company

BIPA Class Action Against Gaming and Hospitality Company

TCPA and Other Class Actions for Major Technology Company

Data Breach Class Action for Technology Company

Wiretap Act action against a Major Consumer Electronics Manufacturer

TCPA Class Action Against National Chain

In re Pharmaceutical Industry Average Wholesale Price Litigation

In re Verizon Wireless Data Charges Litigation

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

Tiffany Cheung

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

FCC issues NPRM on TCPA Exemption for U.S. Government Debt

In response to a provision in the Bipartisan Budget Act of 2015 (Pub. L. No. 114-74), the Federal Communications Commission (FCC or the “Commission”) has promul

FCC issues NPRM on TCPA Exemption for U.S. Government Debt

On May 16, 2016, the Supreme Court issued its highly anticipated decision in Spokeo, Inc. v. Robins. The decision takes on a hot topic in consumer class action law today—what must a plaintiff plead and prove to have standing to sue for a violation of a federal statute? The Court held that an allegation of a statutory violation, without some showing of concrete harm, is not enough. Instead, in this Fair Credit Reporting Act case, the issue is “[w]hether the particular procedural violations alleged . . . entail a degree of risk [of harm] sufficient to meet the concreteness requirement.” In its focused 11-page opinion, the Court declined to decide to evaluate that risk on the record before it and, instead, remanded the case to the Ninth Circuit for further proceedings. However, the Court did provide several guideposts for how the Ninth Circuit, and courts around the country evaluating standing questions, may consider plaintiffs’ claimed injuries.

The Supreme Court’s Spokeo Decision: Concrete Shoes For Consumer Class Actions?

Today the Supreme Court issued its highly anticipated decision in Spokeo, Inc. v. Robins. The decision takes on a hot topic in consumer class action law today—w

The Supreme Court’s Spokeo Decision: Concrete Shoes For Consumer Class Actions?

As we have previously reported, FDA is currently seeking public comments on the use of the term “natural” on food labeling (see our previous post <a href="http://classdismissed.mofo.com/food-misbranding/california-supreme-court-opens-the-door-to-organic-mislabeling-claims/">here</a>).  The announcement came as a surprise since FDA had previously declined requests from consumers, the food industry, and federal judges to define the term.  In another surprise move, on April 12, 2016, FTC announced that four companies advertising their personal care products as “all natural” or “100% natural” agreed to settle FTC charges that their ads were false and misleading because the products contained synthetic ingredients.<a href="#_ftn1" name="_ftnref1">[1]</a>The products included:<ul><li>ShiKia’s “All Natural Hand and Body Lotion” and “All Natural Moisturizing Gel,” which allegedly contain dimethicone, dthyhexyl glycerin, and/or phenoxyethanol;</li><li>Rocky Mountain Sunscreen’s “Natural Face Stick,” advertised as “all natural,” which allegedly contains dimethicone, polyethylene, and other synthetic ingredients;</li><li>EDEN BodyWorks’ “Coconut Shea All Natural Styling Elixir” and “Jojoba Monoi All Natural Shampoo,” which allegedly contain polyquaternium-37, phenoxyethanol, caprylyl glycol, and polyquaternium-7;</li><li>Beyond Coastal’s “Natural Sunscreen SPF 30,” advertised as “100% natural,” which allegedly which allegedly contains dimethicone; and</li><li>California Naturel, Inc.’s “all natural sunscreen,” which allegedly contains dimethicone.</li></ul>Under the proposed settlements, the companies may not make “all natural” or “100% natural” claims unless they have proper substantiation, i.e., competent and reliable evidence to substantiate any ingredient-related, environmental, or health claims they make.  FTC made it clear that the terms “all natural” or “100% natural” may only be used if there is nothing artificial or synthetic in the product.The FTC’s action is unexpected not only because FDA is currently addressing the use of the term “natural” on food labels, but because FDA does not have an informal policy regarding the use of “natural” on personal care products (as it has for food).  Given the absence of applicable regulations or policies, companies should take note of FTC’s action and its strict interpretation of “all natural” and “100% natural.”<a href="#_ftnref1" name="_ftn1">[1]</a> The FTC also issued a complaint against a fifth company for making similar “natural” representations.

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

FTC Targets “All Natural” and “100% Natural” Claims on Personal Care Products

As we have previously reported, FDA is currently seeking public comments on the use of the term “natural” on food labeling. The announcement came as a surprise 

FTC Targets “All Natural” and “100% Natural” Claims on Personal Care Products

It is no secret that the U.S. Consumer Product Safety Commission (CPSC) is ramping up its efforts to enforce various aspects of the Consumer Product Safety Act (CPSA), especially the provisions about a company’s failure to timely report substantial product hazards.  An ongoing case against Spectrum Brands, Inc. (“Spectrum”)<a id="_ftnref1" href="#_ftn1" name="_ftnref1">[1] </a> may shed light on whether certain CPSC enforcement efforts would be time-barred and limit the penalties available under the CPSA.Under the CPSA, it is clear that companies must “immediately” report such hazards; this means within 24 hours, with certain exceptions.  What is not clear is how long CPSC has to bring suit seeking civil penalties for a company’s failure to report.  As these CPSC-backed actions become more frequent and costly, one company—Spectrum Brands, Inc. (Spectrum)—has cried foul.  Specifically, Spectrum has moved for partial summary judgment based on the relevant statute of limitations, arguing that CPSC’s claims for civil penalties stemming from delayed reporting are untimely.Spectrum began importing and distributing coffeemakers in early 2008.  Over the next four years Spectrum received approximately 1,600 consumer complaints alleging the handles of these coffeemakers were breaking, causing hot coffee to spill on consumers.  Spectrum did not report the alleged hazard to CPSC until April 2012.  In June 2015, the government filed its complaint against Spectrum, seeking civil penalties and other relief for Spectrum’s failure to timely report the product hazard.  Significantly, the government alleges that Spectrum violated the CPSA’s reporting requirements by “no later than” May 2009.  According to the government’s motion for summary judgment, filed last week, Spectrum had received 60 reports by the end of May 2009, and more than 300 by the end of 2009.  By that time, according to the government, Spectrum had sufficient information in the form of consumer complaints to trigger the relevant reporting requirements.Central to the parties’ dispute is when CPSC’s clock began running on certain claims.  Neither party disputes that claims under the CPSA are subject to a general statute of limitations regulating government enforcement actions.  Specifically, 28 U.S.C. § 2462 provides that “an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued.”  Accordingly, the government must bring an action for civil penalties within five years of when the claim “first accrued,” but what that means is unclear.The government argues that the claim for a company’s failure to timely report is a “continuing violation” that accrues anew each day the violation occurs, and that the five-year statute of limitations commences only when the company actually reports to CPSC.  Under this “continuing violation” argument, the government would have had five years to file its suit after Spectrum finally reported (April 2012), making the government’s claims timely.  Spectrum disagrees, pointing to the government’s own allegations that Spectrum’s duty to report the alleged hazard arose “no later than” May 2009.  Accordingly, Spectrum argues the claim “first accrued” in May 2009, over six years before the government filed suit and therefore the claims seeking penalties relating to delayed reporting are time-barred.The court’s ruling on Spectrum’s motion could have a dramatic impact on consumer product companies as it is the first time a court will decide the amount of time CPSC has to initiate an action for failure to report.  If the court rules in favor of Spectrum and finds the government should have brought its claims within five years after Spectrum should have reported, the civil penalties claims against Spectrum will be dismissed and other companies facing potential penalties may find relief based on a statute of limitations defense.  On the other hand, if the government prevails, the clock to seek civil penalties against companies for failure to report claims will only start after the company reports the hazard at issue.  This could significantly increase the amount of time the government has to seek such penalties, and could affect both reporting and document retention obligations.  We will continue to provide updates on this important matter.<a id="_ftn1" href="#_ftnref1" name="_ftn1">[1]</a> United States of America v. Spectrum Brands, Inc., No. 3:15-CV-00371-WMC (W.D. Wis. 2015).

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

Statute of Limitations Taking the Steam out of CPSC-Backed Enforcement Action?

It is no secret that the U.S. Consumer Product Safety Commission (CPSC) is ramping up its efforts to enforce various aspects of the Consumer Product Safety Act 

Statute of Limitations Taking the Steam out of CPSC-Backed Enforcement Action?

In an unusual turn of events, U.S. District Judge Cynthia Rufe recently granted defendants’ motion for summary judgment as to over 300 cases in the Zoloft MDL.<a href="#_ftn1" name="_ftnref1">[1]</a>  These cases were consolidated in 2012 and involved allegations that the antidepressant drug Zoloft causes birth defects.  Having conducted substantial discovery and two rounds of Daubert hearings, the defendants filed a motion for summary judgment in all pending cases.  Defendants argued that the plaintiffs failed to produce an expert who could establish general causation, and that as a result, plaintiffs could not prevail on any of their claims.  The court agreed.  Its decision essentially turned on plaintiffs’ failure to establish a causal link between Zoloft and the plaintiffs’ injuries.  In a detailed opinion, Judge Rufe summarized the prior Daubert hearings before analyzing each category of evidence offered by the plaintiffs.Previous Daubert HearingsIn the first round of Daubert hearings, plaintiffs offered the opinions of four expert witnesses on the issue of general causation.  The court rejected the plaintiffs’ first expert, an epidemiologist, because she failed to base her opinion upon scientifically valid methodology and failed to adequately address epidemiological studies that did not support her opinion.  The court determined that the plaintiffs’ remaining experts—a teratologist, a molecular developmental biologist, and an embryologist—could not testify that Zoloft caused birth defects in humans because the experts did not address the relevant epidemiological evidence.  The court granted plaintiffs’ subsequent motion for leave to introduce a fifth expert witness, a biostatistics professor, as an expert on general causation with regard to cardiac defects.  However, the court later excluded this expert’s report and testimony, in part because he similarly failed to adequately address all available epidemiological studies.General Causation EvidenceHaving summarized its decisions to exclude or limit plaintiffs’ experts, the court addressed whether plaintiffs were able to establish general causation without the excluded expert testimony.  The court first considered the role of epidemiological evidence in establishing general causation.  The court held that when epidemiological studies are inconsistent with a causation opinion, experts “must thoroughly analyze the strengths and weaknesses of the epidemiological research and explain why that body of research does not contradict or undermine their opinion.”  In other words, plaintiffs could not simply ignore inconsistent evidence.The court next addressed plaintiffs’ expert evidence submitted in opposition to the summary judgment motion.  The court reiterated that its Daubert rulings remained in effect.  Thus, the court would not allow plaintiffs to circumvent its previous rulings “under the guise of addressing specific causation or discussing new evidence.”  Finally, the court considered plaintiffs’ non-expert evidence.  This evidence included doctor and patient reports regarding adverse events that were perceived to occur after using Zoloft.  The court concluded that these documents, although relevant to the generation of study hypotheses, were insufficient to create a material question of fact regarding general causation.  Plaintiffs also submitted internal Pfizer documents discussing possible associations between Zoloft and birth defects and proposed changes to the Zoloft label.  Again, the court found that these documents did not raise a genuine issue of material fact as to general causation.ConclusionIn light of the preceding analysis, the court concluded that plaintiffs failed to raise a jury question as to whether Zoloft was capable of causing the birth defects at issue.  Central to its decision was the court’s recognition that the MDL had been extensively litigated for more than three years.  The court therefore rejected plaintiffs’ request to delay summary judgment or dismiss without prejudice.  Although MDLs have been struck summarily in the past, it is a rare occurrence.  This opinion highlights the opportunity for defendants to obtain a favorable judgment when plaintiffs fail to present adequate expert testimony or to account for unfavorable evidence. <a href="#_ftnref1" name="_ftn1">[1]</a> In re Zoloft (Sertralinehydrochloride) Prods. Liab. Litig., 2016 WL 1320799 (E.D. Penn. Apr. 5, 2016).