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 Campbell-Ewald v. Gomez, __ S.Ct. __ (Jan. 20, 2016), the United States Supreme Court held that a defendant’s unaccepted offer of complete relief did not moot a class plaintiff’s claim or require dismissal of the action.  However, the Court expressly reserved the question of whether the result would be different if “a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff and the court then enters judgment for the plaintiff in that amount.”  Justice Breyer, who joined the majority, suggested at oral argument that this approach would have mooted plaintiff’s claims; Justice Thomas’s concurrence suggested that he might reach a similar conclusion.  The three dissenting justices would have held that the offer alone was sufficient to moot the claim. Campbell-Ewald thus suggested a possible strategy for a defendant to moot a class plaintiff’s claims.Brady v. Basic Research, L.L.C., Case No. 2:13-cv-7169 (SFJ) (E.D. N. Y. Feb. 3, 2016), a false advertising class action involving a diet supplement, is the first case since Campbell-Ewald to attempt that strategy.  The defendants made a Rule 68 offer of judgment in an amount sufficient to satisfy plaintiffs’ individual claims, and in addition filed a motion and letter seeking permission pursuant to Federal Rule of Civil Procedure 67 to deposit the amount of their offer with the court.  Citing Ray Legal Consulting Group v. DiJoseph, et al., 37 F. Supp. 3d 704, 729 (S.D.N.Y. 2014), Eastern District of New York Judge Sandra Feuerstein noted that Rule 67 is a procedural device intended to provide a place for safekeeping for disputed funds pending resolution of a dispute, not a means for altering the contractual rights of the parties.  The court emphasized Campbell-Ewald’s “directive that a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted,” and concluded that because defendants’ purpose was to moot plaintiffs’ claims rather than to deposit the money for safekeeping, defendants’ motion should be denied.Brady does not address the situation where a defendant actually deposits the funds into an account payable to the plaintiff or sends the plaintiff a cashier’s check and then asks the court to enter judgment accordingly.

Energy Drink Manufacturer

Consumer Electronics MDL

Computer Power Management System Litigation

Run Them Sweet, LLC v. CPA Global Limited

Online Billing Practices Class Action

Lipitor Antitrust Litigation

American Booksellers Association v. Barnes &amp; Noble, Inc.


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 pro

Penelope Preovolos

New York Federal Court Rejects First Attempt Since Campbell-Ewald to Moot Class Plaintiffs’ Claims

In Campbell-Ewald v. Gomez, __ S.Ct. __ (Jan. 20, 2016), the United States Supreme Court held that a defendant’s unaccepted offer of complete relief did not moo

New York Federal Court Rejects First Attempt Since Campbell-Ewald to Moot Class Plaintiffs’ Claims

A recent decision from the Central District of California demonstrates the challenges serial plaintiffs may have with pursuing similar class actions and showcases the primary jurisdiction doctrine. On December 29, 2015, in Red v. General Mills, Inc., et al., Case No. 2:15-cv-02232-ODW(JPR), U.S. District Judge Otis D. Wright granted defendants’ motion to dismiss due to plaintiff’s lack of standing and stayed the case under the primary jurisdiction doctrine. Red challenged General Mills’ use of partially hydrogenated oils (PHOs) in their food products, asserting Unfair Competition Law (UCL), public nuisance, and breach of the implied warranty of merchantability claims. The plaintiff alleged that PHOs increase the risk of a variety of diseases and that the scientific community has concluded that there is no safe consumption level for artificial transfats.Standing: The court held that, while the plaintiff had Article III standing based on the alleged “immediate physical injury” of consuming PHOs, she lacked standing to assert injuries based on alleged long-term health risks. The plaintiff’s future injury allegations failed because she did not demonstrate that her past level of consumption substantially increased her risk of future health complications.The court, however, dismissed the plaintiff’s UCL claim for lack of standing because the plaintiff failed to plead adequate “economic injury.” Notably, the plaintiff had previously brought three other trans-fat lawsuits where she alleged she knew that PHOs were unhealthy, knew that food products sold in California contained PHOs, and knew that she could review the label to determine whether a product contained PHOs (but did not allege whether she looked at the label or not). The court also soundly rejected her allegation that, even if PHOs were listed as an ingredient on the label, it was unreasonable to expect her to read the label prior to purchase. The court found that the plaintiff’s “self-inflicted harm” was precisely the type that the Ninth Circuit had rejected for purposes of standing. However, the court granted the plaintiff leave to amend.Primary Jurisdiction: Despite permitting the plaintiff to amend her UCL claim, the court ultimately concluded that the case should be stayed under the primary jurisdiction doctrine. The complexity of determining the health effects of PHOs warranted an initial determination by the FDA, because whether, and in what amount, a particular chemical substance posed a serious public health risk was precisely the type of complex question that required a uniform answer from the dedicated agency, rather than piecemeal and potentially conflicting decisions from courts. The court noted that Congress had bestowed on the FDA the authority to comprehensively regulate food safety, and, while the FDA had recently determined that PHOs were no longer generally recognized as safe, it had withheld judgment on whether certain uses of PHOs could be approved and noted it would likely decide the issue within three years.

Court Stays Away from Trans Fat in General Mills Case

A recent decision from the Central District of California demonstrates the challenges serial plaintiffs may have with pursuing similar class actions and showcas

Court Stays Away from Trans Fat in General Mills Case

The California Court of Appeal recently affirmed a ruling that an optional protection plan in a storage rental contract to transfer the risk of property damage or loss from the renter to the rental company did not transform the rental contract into a contract for insurance. A storage unit renter sued A-1 Self Storage, Inc., as well as its operators and insurance broker for violations of the Unfair Competition Law (UCL) and Consumer Legal Remedies Act (CLRA), negligent misrepresentation, and civil conspiracy, alleging that A-1’s storage unit protection plan was an unlicensed and illegal insurance policy. In reaching its decision, the appellate court deferred to the California Department of Insurance’s (DOI) informal opinion that the protection plan was not an insurance contract. Heckart v. A-1 Self Storage, Inc., 243 Cal. App. 4th 525 (2015).Factual Background. Samuel Heckart rented a storage unit from A-1 Self Storage, Inc. The rental contract stated that A-1 was not liable for any loss or damage to the stored property and that the renter must provide proof of an independent insurance policy to A-1. A-1 also provided an option titled a “Protection Plan,” which stated that for an additional payment of $10 per month, the storage company would retain liability for loss of or damage to the renter’s stored property up to $2,500. The Protection Plan stated: “I understand that I need to provide the policy information in writing to the facility Owner within 30 days or I will automatically be enrolled in the . . . Protection Plan until I do provide such information to the Owner.” Heckart was enrolled in the Protection Plan, presumably because he failed to provide proof of insurance within 30 days. Heckart later sued A-1 for engaging in the unfair, unlawful, and deceptive sale of unlicensed insurance in conjunction with the rental of storage units.Statutory Scheme. California’s Insurance Code defines the term insurance and provides for licensing and other requirements in connection with the sale of insurance. Under California precedent, courts look to the “principal object and purpose of the transaction” to determine whether it is a contract of insurance. DOI’s Position. A-1’s insurance underwriter also requested an opinion letter regarding the Protection Plan from the California DOI. The DOI’s response opined that it “did not believe that such contracts between landlords and tenants are insurance contracts for purposes of statutory regulation. The primary purpose of the contract is rental of the premises.” Trial and Appellate Court Holdings. The trial court sustained A-1’s demurrer without leave to amend, finding that the principal object of the transaction between Heckart and A-1 was the rental of a storage unit, not the sale of insurance. The Court of Appeal affirmed, noting that California courts must give deference to the DOI’s interpretation of the Insurance Code. The appellate court noted that “[w]e have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.” 243 Cal. App. 4th at 535 (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)). Viewing the entire transaction between the parties, the court concluded that without the rental agreement, the Protection Plan would not exist and would have no purpose and, therefore, it was not an insurance contract. This decision is consistent with Yamaha Corp. of America v. State Board of Equalization, 19 Cal. 4th 1 (1998), which held that an agency interpretation of a statute is entitled to deference; however, such deference is not absolute. Under Yamaha, in weighing an agency’s interpretation, the courts consider (i) the agency’s comparative interpretive advantage over the courts, and (ii) whether the interpretation is likely to be correct.

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A-1 Self-Storage Unit Protection Plan: California Court of Appeal Defers to Agency Interpretation of the Insurance Code

A-1 Self-Storage Unit Protection Plan: California Court of Appeal Defers to Agency Interpretation of the Insurance Code

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The California Court of Appeal recently affirmed a ruling that an optional protection plan in a storage rental contract to transfer the risk of property damage 

Ever heard of “voluntary” safety standards? Voluntary or not, they’re a big deal. The technical term is “voluntary consensus safety standards” or “non-government consensus standards,” and they may guide the design of your consumer product. In fact, the Consumer Products Safety Commission (CPSC) considers voluntary standards “to be a safety floor from which to design your product; and you should always consider finding ways to build safety into your product and go above and beyond these standards.” Basically, “voluntary” standards often are mandatory and express the bare minimum safety requirements for your consumer product. CPSC’s role in setting those standards is about to increase.Traditionally, voluntary safety standard organizations like the American National Standards Institute (ANSI) and Underwriters Laboratories Inc. (UL) develop voluntary standards for consumer products with limited input from CPSC. Until recently, a CPSC employee could only participate in voluntary standard development groups on a non-voting basis and could not accept leadership positions in the groups. In 2012, the Government Accountability Office urged CPSC to revisit this limitation and assume a more active role in developing voluntary safety standards for product safety. At the recent January 27, 2016 decisional meeting, CPSC commissioners formally enacted new rules that allow CPSC employees to vote and accept leadership positions in voluntary standards committees. The commissioners unanimously approved the rule change.We should take a moment to appreciate the gravity of this rule change. First, CPSC participation in the voluntary standards development process likely will result in “the standards . . . being stronger and more effective,” according to Rachel Weintraub, consumer advocate, legislative director, and general counsel at the Consumer Federation of America. For consumer products manufacturers, stronger standards will require a heightened awareness of the specific standards in place and increased diligence in complying with those standards. Second, the rule change will likely lead to increased CPSC enforcement of voluntary standards, especially those incorporated into CPSC’s own safety regulations. As CPSC becomes more directly involved in writing voluntary standards, there will be more political pressure for CPSC to enforce those standards, and we expect they will play a more significant role in CPSC’s enforcement efforts. So pay attention!

Rules Change, and So Does CPSC’s Involvement in the Development of Voluntary Standards

Ever heard of “voluntary” safety standards? Voluntary or not, they’re a big deal. The technical term is “voluntary consensus safety standards” or “non-governmen

Rules Change, and So Does CPSC’s Involvement in the Development of Voluntary Standards

We’ve all heard about food fads:  Paleo, artisanal, farm-to-table.  But what about food litigation fads?  Plaintiffs’ lawyers must scour the same grocery aisles, judging from their past “sweet tooth” obsession with “evaporated cane juice” (ECJ).  But—with most courts in this District staying ECJ cases pending the U.S. Food and Drug Administration’s (FDA’s) review of its ECJ draft guidance—the ECJ litigation fad appeared to have faded as abruptly as it began.Not so fast, Plaintiffs’ lawyers will say.  While the majority of courts have maintained stays pending FDA’s final review, recent decisions to the contrary may portend the revival of this forgotten trend.  Will ECJ have another “moment”?We provide further background and discuss the implication of these decisions below.Plaintiffs’ ECJ Allegations. Plaintiffs bringing ECJ claims allege that ECJ is actually sugar, so listing ECJ as an ingredient misleads consumers into believing that these products are healthier than those listing sugar as an ingredient. Plaintiffs assert that FDA has explicitly stated that ECJ is not a common or usual name for sugar, and thus cannot be listed as an ingredient at all.FDA’s Position. Despite these assertions, FDA’s position on ECJ is in flux. Although FDA issued draft guidance in 2009 suggesting that ECJ is not the common or usual name for sugar, as we have previously posted, FDA subsequently issued a notice in 2014 reopening the comment period for its draft guidance, indicating that it would reconsider the issue.ECJ Stays. Following FDA’s notice, courts facing ECJ claims stayed or dismissed the claims pursuant to the primary jurisdiction doctrine, finding that, based on FDA’s authority over product labeling and its expertise in the area, courts should permit FDA to at least finalize its stance on ECJ before passing judgment. At least 18 ECJ claims were dismissed or stayed between 2014 and 2015.After issuing stays, one Northern District court judge who had stayed an ECJ case—Judge Chen—requested an update from FDA on the status of its review. In July 2015, FDA confirmed that it anticipated finalizing its guidance by the close of 2016. At least six Northern District courts continued stays since that update — all over plaintiffs’ objections. One court, however, departed from the trend: in August 2015, Judge Chhabria lifted a stay in an ECJ case.  See Gitson et al. v. Trader Joe’s Company, No. 3:13-cv-01333-VC (N.D. Cal. Aug. 18, 2015), Dkt. No. 123.Updates. Until recently, Judge Chhabria was the lone dissenter in the ECJ debate. But on January 4 and 5, 2016, Judges Henderson and Donato, respectively, also lifted ECJ stays. See Figy v. Lifeway Foods, Inc., No. 3:13-cv-4828-TEH (N.D. Cal. Jan. 4, 2016), Dkt. No. 57; Swearingen v. Pacific Foods of Oregon, Inc., No. 13-cv-04157 (N.D. Cal. Jan. 5, 2015), Dkt. No. 61. While neither decision contains substantial analysis, Judge Donato did note that he considered the issues “in light of the FDA’s continued delay in providing final guidance.” Id. at 1:18. These courts appear to have become impatient with the pace of FDA’s review.Two other courts, however, have continued stays subsequent to these three rulings. See, e.g., Gitson, et al. v. Clover-Stornetta Farms, Inc., Case No. 3:13-cv-01517-EDL (N.D. Cal. Jan. 7, 2016) (extending ECJ stay for an additional 180 days, until August 2016) (Laporte, J.); Swearingen v. Amazon Preservation Partners, Inc., Case No. 13-cv-04402-WHO (N.D. Cal. Jan. 11, 2016) (Orrick, J.) (extending ECJ stay and continuing case management conference until July 2016). The new year has thus brought divergence in Northern District courts’ treatment of ECJ cases.Implications. The future of ECJ claims is unclear: while Judges Orrick and Laporte’s decisions upholding stays suggest that the pendulum has not shifted towards reviving these claims, Judges Chhabria, Henderson, and Donato’s rulings to the contrary may suggest that ECJ stays will not remain in place indefinitely. This means that a slew of dormant ECJ claims could come back to life this year, especially if FDA fails to make headway on its draft guidance.  We may see a revival of the ECJ fad after all.But another trend may nonetheless keep these cases quiet. Many district courts have stayed misbranding cases pending the Ninth Circuit’s decisions in misbranding appeals, including Jones v. ConAgra, Brazil v. Dole, and Kosta v. Del Monte. These appeals concern class certification issues—including ascertainability and the proper measure of damages—that district courts must consider when assessing a plaintiff’s proposed class certification motion. Courts have therefore found it appropriate to wait for the Ninth Circuit’s guidance before deciding these issues. See, e.g., Ham v. Hain Celestial Grp., Inc., 3:14-cv-02044-WHO (N.D. Cal. Dec. 10, 2015), Dkt. No. 59. (staying putative class action pending Ninth Circuit appeals and collecting decisions in accord). ECJ cases are no exception. See Thomas v. Costco Wholesale Corp., No. 12-CV-02908-BLF, 2015 WL 6674696 (N.D. Cal. Nov. 2, 2015) (staying entire action based on Ninth Circuit appeals after staying ECJ claims in November 2014). Thus, even if FDA-based stays are lifted, Ninth Circuit stays may continue to keep ECJ claims at bay.

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Reviving a Forgotten Fad: Three Judges Lift Stays of Evaporated Cane Juice Claims

Reviving a Forgotten Fad: Three Judges Lift Stays of Evaporated Cane Juice Claims

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We’ve all heard about food fads:  Paleo, artisanal, farm-to-table.  But what about food litigation fads?  Plaintiffs’ lawyers must scour the same grocery aisles

The Ninth Circuit will not review district court stays, the appeals court recently held, because they are not “final orders” subject to immediate appeal. On January 26, 2015, the Ninth Circuit granted General Mills’ motion to dismiss plaintiff Troy Backus’ appeal of a district court order staying his putative class action against General Mills for its use of partially hydrogenated oils (PHOs) (also known as “trans fats”) in its baking mixes. Backus v. General Mills, Inc., Case No. 15-16658District Court Stay. Judge Henderson stayed the case based on the Food and Drug Administration’s (FDA’s) primary jurisdiction over the safety of trans fats. The court held that whether General Mills’ use of trans fats in food poses a significant safety risk “is both an important question of first impression, and a complicated issue that has been committed to the FDA.” No. 15-cv-01964-THE, 2015 WL 4932687, at *17 (N.D. Cal. Aug. 18, 2015).Plaintiff’s Appeal. The plaintiff appealed, arguing that the stay was effectively final because it was unclear when FDA would complete its review. In a one page order without discussion, the Ninth Circuit disagreed. The stay was not a “final or collateral order” subject to immediate appeal, the panel held, so the court lacked jurisdiction.Takeaway. Backus demonstrates that the Ninth Circuit will not provide immediate relief for plaintiffs facing stays pending FDA’s review of food or cosmetic regulations. Rather, plaintiffs must argue to district courts that stays should be lifted based on the slow pace of FDA’s review. As we describe in a <a href="http://classdismissed.mofo.com/food-misbranding/reviving-a-forgotten-fad/">related post on “evaporated cane juice” (ECJ) stays</a>, while this argument has gained traction with a few courts in this district — including Judge Henderson in a subsequent case, Figy v. Lifeway Foods, Inc., No. 3:13-cv-4828-TEH (N.D. Cal. Jan. 4, 2016), Dkt. No. 57—most courts have rejected it. Food and cosmetic misbranding cases stayed pursuant to the primary jurisdiction doctrine will likely have to wait for FDA’s review to run its course.

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Ninth Circuit: No Relief from Stay in General Mills’ Trans Fats Case Pending FDA Action

Ninth Circuit:  No Relief from Stay in General Mills’ Trans Fats Case  Pending FDA Action

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The Ninth Circuit will not review district court stays, the appeals court recently held, because they are not “final orders” subject to immediate appeal. On Jan

<div class="resource-detail">Litigation often involves lengthy battles over the proper scope of discovery. Defendants with substantial resources frequently find themselves on the receiving end of unreasonable discovery requests in an attempt to overwhelm the party and stall litigation. A recent district court decision in In re Xarelto, along with the latest amendments to the Federal Rules of Civil Procedure, may help to curb this practice in the future.</div><div class="richtext">Federal Rule of Civil Procedure 26 governs the scope and limits of discovery, allowing discovery into “any nonprivileged matter that is relevant to any party’s claim.”[1] As early as 1983, the Advisory Committee has addressed the “problem of over-discovery” and attempted to ameliorate this issue through amendments to the Federal Rules.[2] However, the problems associated with discovery overuse have only worsened over the years with the increased prevalence of electronically stored information. The most recent amendments to the Federal Rules attempt once again to address this problem.2015 Amendments to Rule 26The 2015 amendments included a significant change to Rule 26. The amended Rule includes an increased emphasis on the role of proportionality in discovery. Prior to this amendment, the discussion on proportionality was located in section 26(b)(2)(C). Section 26(b)(2) sets forth limitations on the frequency and extent of discovery. The 2015 amendments moved the proportionality requirement to section 26(b)(1), which governs the scope of discovery in general. By moving the language on proportionality to the general scope of Rule 26, the drafters indicated the importance of this requirement.The amended Rule still allows for discovery into relevant, nonprivileged matter, but adds that the information must also be “proportional to the needs of the case.” Proportionality is measured by several factors, including “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”[3]This substantial amendment places more emphasis on the responsibility of the court and the parties to assess the importance of each discovery request, and to balance the importance of discovery against the burden on the producing party. Despite these substantial amendments, their practical effect depends on the extent to which courts implement these changes into the resolution of discovery disputes.In re XareltoA district court in Louisiana recently had the opportunity to interpret amended Rule 26 in the context of a discovery dispute.[4] The plaintiffs in this case sought to depose defendants’ employees and requested production of the employee personnel files. According to plaintiffs, the employee personnel files were relevant to employee bias and plaintiffs’ theory that the drug Xarelto was “rushed to the market.” Defendants opposed the discovery request, claiming the personnel files were not relevant to the claims and defenses in this case, and that the interest in discovery was outweighed by employee privacy interests.The court cited to amended Rule 26(b)(1) in its analysis of the case. Specifically, the court noted that “Rule 26(b) commands that all discovery be both relevant and proportional.” The court also cited to Fifth Circuit privacy law in balancing the interests of both parties. Noting that personnel files contain personal and potentially embarrassing material, the court concluded that the privacy concerns implicated by releasing personnel files to plaintiffs would be substantial. In contrast, plaintiffs had failed to demonstrate the relevancy and particularity of its requests under both Rule 26 and privacy law. Thus, the court denied plaintiffs’ discovery request for deponent personnel files.The court stated that plaintiffs could file a separate motion for in camera review of the personnel files. If this were requested, the court indicated that it would “balance privacy against the relevancy and particularity of the sought information” before it was released. This balancing of the burdens and benefits to each party is precisely what the Rule 26 amendments call for. The court in In re Xarelto denied an overbroad discovery request in favor of an appropriate balancing of interests. Accordingly, it sets a good example for proper interpretation of proportionality under the amended rules.Impact of Amended Rule 26 and In re XareltoPrior to these developments in the law governing discovery, defendants were often inundated with an enormous volume of discovery requests. Under amended Rule 26, it will be more difficult for plaintiffs to use discovery requests as a tactic in litigation. The court in In re Xarelto properly considered the changes to Rule 26 in determining that the discovery request at issue was overbroad. Due to the clarity of the intention behind the Rule amendments, federal courts should adopt this interpretation in the future.Parties should be diligent in objecting to discovery requests that are not proportional. However, the Advisory Committee Notes specifically state that “boilerplate objections” will not be permitted under the Rule.[5] Thus, parties faced with disproportional discovery requests should clearly indicate the reasons for their objections. At the very least, the amended Rules require courts to take a closer look at unduly burdensome discovery requests that were once commonplace. [1] Fed. R. Civ. P. 26(b)(1).[2] Advisory Committee’s Notes to 1983 Amendment.[3] Fed. R. Civ. P. 26(b)(1).[4] In re Xarelto (Rivaroxaban) Products Liability, 2016 WL 311762 (E.D. La. Jan. 26, 2016).[5] Advisory Committee’s Notes to 2015 Amendment.</div>

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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Associate

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