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

In a departure from a string of cases supporting field preemption of state-law aviation product liability claims under certain circumstances by the Federal Aviation Act (FAAct), the Third Circuit recently held that the FAAct does not categorically preempt such claims. Sikkelee v. Precision Airmotive Corp., et al. Case No. 14-4193. In doing so, the court significantly limited its own groundbreaking ruling in Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d Cir. 1999), in which it held that “the entire field of aviation safety is federally preempted.” As it backpedaled, the court explained that Abdullah applied only to operating an aircraft—not to the aircraft’s design or manufacture.

Third Circuit Limits Federal Aviation Act Preemption for Product Liability Claims

In a departure from a string of cases supporting field preemption of state-law aviation product liability claims under certain circumstances by the Federal Avia

Third Circuit Limits Federal Aviation Act Preemption for Product Liability Claims

We’ve recently reported on numerous district court—and even Ninth Circuit—stays in false advertising actions. Many of these stays have been based on FDA’s consideration of food labeling issues, such as those involving evaporated cane juice (ECJ), the term “natural” or the presence of partially hydrogenated oils (PHOs) in food products. But courts have also stayed cases pending the Ninth Circuit’s review of class certification decisions in misbranding cases, finding that appellate guidance will aid in courts’ consideration of these issues.Now, a mislabeling action against Bimbo Bakeries has been stayed on the latter ground:  Ang v. Bimbo Bakeries USA, Inc., No. 13-cv-01196-HSG (N.D. Cal. March 31, 2016) (Dkt. No. 161) (“Order”). Bimbo is at least the sixteenth Northern District decision to put mislabeling claims on hold pending the Ninth Circuit’s review.What’s on the Ninth Circuit’s Docket? In the upcoming year, the Ninth Circuit will review a number of the misbranding cases that have flooded this Circuit. The two key class action cases where district courts are awaiting guidance, however, are:  Jones v. ConAgra Foods, Inc., No. 14-16327 (9th Cir. Nov. 24, 2014), which addresses the ascertainability requirement, and Brazil v. Dole Packaged Foods, LLC, No. 14-17480 (9th Cir. Dec. 18, 2014), which addresses the proper standard for damages models under Comcast Corp. v. Behrend. Brazil, which was dismissed on summary judgment, also raises issues regarding required proof of consumer deception as well as reliance and materiality requirements for claims sounding in fraud.<a href="#_ftn1" name="_ftnref1">[1]</a>Judge Puts Bimbo Bakeries Action on Hold. On March 25, 2016, Northern District of California Judge Haywood Gilliam issued an order to show cause why plaintiffs’ mislabeling action against Bimbo Bakeries should not be stayed pending resolution of these two appeals. In doing so, he noted that several courts in the District have stayed cases in light of the pending appeals in Jones and Brazil. The parties submitted a joint statement in response, indicating that neither opposed the stay.After analyzing factors courts use in considering stays, Judge Gilliam concluded that a stay was warranted. Because both parties agreed to the stay, neither would be harmed. Most importantly, “it would be an inefficient and imprudent use of judicial resources to rule on the pending motion for class certification when the Ninth Circuit may offer ‘substantial guidance, if not new law, that will materially impact the Court’s discussion in the instant case.’”  (Order at 2:10-14 (citation omitted).) The court accordingly stayed the entire action pending the Jones and Brazil appeals.“Food Court” Is Quiet. Bimbo and other district court stays of misbranding actions have caused the Northern District, previously dubbed the “food court,” to be relatively quiet on the false advertising front, at least for now. <a href="#_ftnref1" name="_ftn1">[1]</a> Both the Brazil and Jones appeals will be heard together along with another food misbranding class certification decision, Briseno v. ConAgra Foods, Inc., No. 15-55727.  Briseno also involves ascertainability and classwide damages issues.

Bimbo Bakeries Suit On Hold Pending Ninth Circuit Class Certification Appeals

We’ve recently reported on numerous district court—and even Ninth Circuit—stays in false advertising actions. Many of these stays have been based on FDA’s consi

Bimbo Bakeries Suit On Hold Pending Ninth Circuit Class Certification Appeals

On April 14, 2016, the Seventh Circuit again weighed in on Article III standing requirements in a putative class action involving an alleged data breach.  In Lewert v. P.F. Chang’s China Bistro, Inc., Case No. 14-3700 (7th Cir.), the two named plaintiffs each allegedly dined at a P.F. Chang’s location in Illinois during a period that was affected by a data breach.  One plaintiff alleged that fraudulent charges appeared on his debit card and that he canceled his card and purchased a credit monitoring service.  The other plaintiff alleged no fraudulent charges on his card, but alleged that he spent time and effort monitoring his card statements and credit report.  The plaintiffs sought to represent a class of all customers whose payment data may have been compromised during the breach.  The district court dismissed the claims for lack of standing, concluding that the plaintiffs had not suffered the requisite personal injury.  The Seventh Circuit reversed.The court focused its standing analysis on the requirement of a concrete and particularized injury.  The court relied on its recent decision in Remijas v. Neiman Marcus Grp., LLC, in which it concluded that plaintiffs in a data breach case had sufficiently alleged Article III standing based on their increased risk of fraudulent credit- or debit-card charges and the increased risk of identity theft.The Lewert court reasoned that the named plaintiffs adequately alleged these same injuries.  Regarding plaintiffs’ other alleged injuries, the Seventh Circuit did not reach a conclusion but expressed skepticism that plaintiffs’ other claimed injuries based on the cost of their meals or based on a property right to personally identifiable data would be sufficient injuries for Article III standing.  The Seventh Circuit thus concluded that the plaintiffs had plausibly alleged at least some injuries that were sufficiently immediate and concrete as to satisfy the standing requirement.  It reasoned that the defendant’s arguments regarding whether the plaintiffs’ data was in fact exposed and whether defendant actually caused any of the claimed injuries were matters going to the merits of the case rather than the sufficiency of the pleading.

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.

Seventh Circuit’s Latest Word on Standing Requirements for Data Breach Claims

On April 14, 2016, the Seventh Circuit again weighed in on Article III standing requirements in a putative class action involving an alleged data breach. In Lew

Seventh Circuit’s Latest Word on Standing Requirements for Data Breach Claims

The FTC recently sent over 50 warning letters to contact lens prescribers and sellers warning them that they may be in violation of the Fairness to Contact Lens Consumer Act, 15 U.S.C. § 7601 et seq., and the Contact Lens Rule, 16 C.F.R. Part 315.  The Act and the Rule have two basic requirements.  First, contact lens prescribers must provide patients with a copy of their contact lens prescriptions at the end of a contact lens fitting, even if the patient does not request it.<a href="#_ftn1" name="_ftnref1">[1]</a>  Second, contact lens sellers cannot provide contact lenses to a customer unless they obtain a copy of the customer’s prescription or verify the prescription information through procedures set forth in the Rule.  The purpose of the laws is to allow consumers to comparison shop while encouraging competition among contact lens sellers.The letters warn that contact lens prescribers and sellers in violation of the Act and Rule may be subject to legal action, including civil penalties of up to $16,000 per violation.  For more information, see FTC’s guidance regarding prescribers’ and seller’s obligations in: <a href="https://www.ftc.gov/tips-advice/business-center/guidance/contact-lens-rule-guide-prescribers-sellers" target="_blank">The Contact Lens Rule: A Guide for Prescribers and Sellers</a> and Complying with the Contact Lens Rule.<a href="#_ftnref1" name="_ftn1">[1]</a> Prescribers also cannot require consumers to buy contact lenses, pay additional fees, or sign a waiver or release as a condition of releasing or verifying a contact lens prescription.

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

Seeing Double . . . or More: FTC Sends over 50 Warning Letters to Contact Lens Prescribers and Sellers

The FTC recently sent over 50 warning letters to contact lens prescribers and sellers warning them that they may be in violation of the Fairness to Contact Lens

Seeing Double . . . or More: FTC Sends over 50 Warning Letters to Contact Lens Prescribers and Sellers

The NAD<a href="#_ftn1" name="_ftnref1">[1]</a> recently referred certain green marketing claims made by LEI Electronics Inc. (LEI) regarding its Eco Alkalines batteries to the FTC after the company stated it would not comply with the NAD’s decision and recommendation. LEI Elecs., Inc. (Eco Alkalines Batteries) NAD Report No. 5927 (Feb. 5, 2016).LEI’s “Green” Battery Claims. LEI’s competitor Energizer Brands LLC (Energizer) filed a challenge with the NAD regarding LEI’s advertising claims touting the environmental benefits of its Eco Alkalines batteries, including several “carbon neutrality” statements. For example, LEI claims that “every purchase is carbon neutral” and that “by purchasing Eco Alkalines batteries, you’re doing your part to reduce the CO2 and climate change impact brought about by the production, distribution, and disposal of alkaline batteries.” The advertising appeared on a combination of the company’s website, an online commercial, and product packaging.NAD Finds “Green” Claims Lack Substantiation. The NAD relied on the FTC’s Green Guides in finding that LEI lacked substantiation to support its claim. The Green Guides state that an advertiser should not make a carbon offset claim unless the emission reductions “have already occurred or will occur in the immediate future.” Absent that showing, the advertiser “should clearly and prominently disclose if the carbon offset represents emission reductions that will not occur for two years or longer.” While LEI relied on third-party certifications and a “life cycle assessment” that calculated the batteries’ carbon footprint, the NAD found this was insufficient since the Green Guides state that third-party certifications do not eliminate a marketer’s obligation to ensure that it has competent and reliable scientific evidence to substantiate environmental claims. The NAD concluded that third-party certifications alone were insufficient to substantiate LEI’s carbon neutrality claims, and recommended that LEI discontinue the claims.LEI, however, refuses to do so. As such, the NAD has referred the claims at issue to the FTC for further review.<a href="#_ftnref1" name="_ftn1">[1]</a> The National Advertising Division (NAD) of the Council of the Better Business Bureaus.

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Battle of the Batteries: NAD Refers LEI Electronics Inc.’s Green Marketing Claims Regarding Its Eco Alkalines Batteries to FTC

Battle of the Batteries: NAD Refers LEI Electronics Inc.’s Green Marketing Claims Regarding Its Eco Alkalines Batteries to FTC

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The NAD recently referred certain green marketing claims made by LEI Electronics Inc. (LEI) regarding its Eco Alkalines batteries to the FTC after the company s

The last weeks of March brought us two interesting and seemingly contradictory opinions that show the many tools that the Consumer Product Safety Commission (CPSC) has at its disposal to enforce its own regulations. These orders also demonstrate that CPSC will not hesitate to deploy resources and engage in simultaneous avenues of enforcement when it views violations as particularly egregious. In the ongoing saga of high-powered, small, rare earth magnet sets (SREMS), CPSC showed its resolve by pursuing an offensive enforcement campaign in both litigation and administrative forums.

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

Definitely Not Zen – Magnets Attract Unprecedented Action from CPSC

The last weeks of March brought us two interesting and seemingly contradictory opinions that show the many tools that the Consumer Product Safety Commission (CP

Definitely Not Zen – Magnets Attract Unprecedented Action from CPSC