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

The flurry of food mislabeling class actions filed in California federal courts has recently come to a halt under the U.S. Supreme Court’s holding in Comcast v. Beherend. Comcast requires that putative class action plaintiffs present a damages model tied to their theory of liability. District courts in food mislabeling cases have limited plaintiffs’ recovery to price premium: the difference between the product as labeled and the product as received. But plaintiffs have yet to present a damages model that controls for factors other than misbranding that impact price. As a result, courts have denied certification of a damages class.Mislabeling plaintiffs are now searching for a new theory that would allow them to bypass price premium. Nonrestitutionary disgorgement based on a claim of unjust enrichment has become the theory de jure. These plaintiffs allege that proof of price premium is unnecessary for this claim, and courts can award whatever remedy they deem is warranted.Courts aren’t buying it. For example, in a series of three mislabeling actions against Nestlé decided in early July, Trazo v. Nestlé USA, Inc., Coffey v. Nestlé USA, Inc., Belli v. Nestlé USA, Inc., Magistrate Judge Paul S. Grewal permitted plaintiffs to pursue unjust enrichment, but precluded them from seeking nonrestitutionary disgorgement under that theory, holding that “nonrestitutionary disgorgement is not the appropriate remedy for an unjust enrichment/quasi-contract claim based on alleged mislabeling of a consumer product.” As the court explained:The nonrestitutionary disgorgement remedy which Trazo seeks would require Nestlé “to surrender . . . all profits earned as a result of [the alleged] unfair business practice regardless of whether those profits represent money taken directly from persons who were victims of the unfair practice.” Yet, Trazo’s amended complaint specifically sought restitution, “a remedy whose purpose is ‘to restore the status quo by returning to the plaintiff funds in which he or she has an ownership interest.’” “The proper measure of restitution in a mislabeling case is the amount necessary to compensate the purchaser for the difference between a product as labeled and the product as received,” not the full purchase price or all profits. “There is no reason to go beyond the price premium, and doing so would result in a windfall to plaintiff.”Trazo, No. 5:12-CV-02272-PSG (citations omitted).Judge Orrick reached the same conclusion in Khasin v. R.C. Bigelow, Case No. 12-cv-02204-WHO. In Khasin, Judge Orrick rejected the plaintiff’s demand for discovery on the defendant’s profits and costs to support a claim for unjust enrichment. Unjust enrichment, Judge Orrick held, does not entitle the plaintiff to a nonrestitutionary disgorgement remedy. As the court explained, “[t]he law is clear in this District that ‘[t]he proper measure of restitution in a mislabeling case is the amount necessary to compensate the purchaser for the difference between a product as labeled and the product as received, not the full purchase price or all profits.’”Relying on Judge Grewal’s orders in the Nestlé mislabeling cases, Judge Orrick held that, because the plaintiff was not entitled to nonrestitutionary disgorgement of profits, he was not entitled to discovery on this issue.Judges Grewal and Orrick’s decisions confirm what many mislabeling courts have already held: the proper measure of damages in a mislabeling class action is limited to price premium. This is true regardless of the claim or theory of recovery. Plaintiffs’ attempt to bypass the careful calculations required to prove price premium under Comcast have thus far failed to gain traction.

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

“Food” Courts Confirm That Price Premium Is the Proper Measure of Damages in Misbranding Cases

The flurry of food mislabeling class actions filed in California federal courts has recently come to a halt under the U.S. Supreme Court’s holding in Comcast v.

“Food” Courts Confirm That Price Premium Is the Proper Measure of Damages in Misbranding Cases

A recent decision from the Southern District of California demonstrates the uphill battle consumer lawsuits face when challenging “handmade” or “handcrafted” labels on alcoholic beverages.  On July 27, 2015, in Nowrouzi et al. v. Maker’s Mark Distillery Inc., Case No. 3:14-cv-02885, U.S. District Judge John A. Houston granted Maker’s Mark’s motion to dismiss plaintiffs’ four causes of action challenging the “handmade” label on its whisky:  (1) false advertising; (2) unfair competition; (3) negligent misrepresentation; and (4) intentional misrepresentation.Plaintiffs’ claims were premised on the argument that Maker’s Mark’s “handmade” label was deceptive because the company’s whisky-making process “involves little to no human supervision, assistance, or involvement” and because its website demonstrates that the company uses a “mechanized and/or automated production process.”  In dismissing plaintiffs’ claims, the court relied on two recent decisions addressing similar claims:  the “handmade” label on Maker’s Mark’s bourbon (Salters v. Beam Suntory, Inc., No. 14-cv-659, 2015 WL 2124939 (N.D. Fla. May 1, 2015); and the “handmade” label on Tito’s Vodka (Hofman v. Fifth Generation, Inc., Case No. 14-cv-2569 JM (JLB), Dkt. No. 15 (S.D. Cal. March 18, 2015).UCL and FAL ClaimsMaker’s Mark made two main arguments for dismissal of the UCL and FAL claims.  First, it argued that the Tobacco Tax and Trade Bureau’s (TTB) review and pre-approval process for distilled spirit labels ensures compliance with applicable laws and regulations, thus bringing the company’s label within the safe harbor doctrine.  Judge Houston, however, disagreed, and followed a recent decision in a similar case, Hofman v. Fifth Generation, Inc., Case No. 14-cv-2569 JM (JLB), Dkt. No. 15 (S.D. Cal. March 18, 2015).  In Hofman, the court ruled that the safe harbor decision did not cover TTB’s decision in investigating and approving the defendant’s “handmade” label because it was an informal agency decision that was not as stringent as the USDA or FDA processes.Second, Maker’s Mark argued that plaintiffs failed to plausibly allege the requisite likelihood of deception.  Specifically, Maker’s Mark argued that the “handmade” claim could not mislead a reasonable consumer because it was not a specific or measurable claim and that plaintiffs’ proffered interpretation of “handmade” failed the Ninth Circuit’s common sense approach.  Maker’s Mark noted that its label describes the actual production process and invites consumers to visit the website for more information, where consumers can view a video about the production process.  The court agreed, finding that: “‘handmade’ cannot reasonably be interpreted as meaning literally by hand nor that a reasonable consumer would understand the term to mean no equipment or automated process was used to manufacture the whisky.”Negligent and Intentional Misrepresentation ClaimsPlaintiffs abandoned their negligent misrepresentation claim.  As for the intentional misrepresentation claim, Maker’s Mark moved to dismiss this claim on the grounds that a reasonable consumer would not find the challenged statements misleading and that plaintiffs failed to allege facts supporting a finding that the company had the requisite intent to deceive.In dismissing these claims, the court was persuaded by the reasoning in Salters, where the court concluded that no reasonable person could understand the term “handmade” to mean “literally by hand” and that “substantial equipment was not used.”  The Salters court also noted that if the statement was “some ill-defined effort to glom onto a trend toward products like craft beer,” it merely constituted puffery that could not support an intentional misrepresentation claim.Judge Houston agreed with Maker’s Mark that it was not premature to decide whether a reasonable consumer would have been deceived, and concluded that the intent issue was not dependent on consumers visiting the website because “plaintiffs cannot plausibly contend defendant intends to deceive consumers about the nature of its processes when its label clearly describes the process and points consumers to its website.”  Finding that this claim could not possibly be cured by pleading additional facts, Judge Houston dismissed the claim with prejudice.

A Handmade Dismissal for Maker’s Mark

A recent decision from the Southern District of California demonstrates the uphill battle consumer lawsuits face when challenging “handmade” or “handcrafted” la

A Handmade Dismissal for Maker’s Mark

Last week, the Consumer Product Safety Commission (CPSC) approved a pilot program to test an electronic filing system that will require importers to submit data electronically for imported consumer products.  The filing system will aid CPSC and other regulators in their surveillance of imported goods and allow them to identify noncompliant goods before distribution within the United States.  CPSC commissioners approved the pilot program in a 4-1 vote.Under the current system, imported goods are shipped with paper certificates of compliance inside their shipping containers.  The paper certificates describe the product, identify its manufacturer, and list applicable rules and bans.  According to CPSC chair Elliot Kaye, the paper certificates can cause confusion, and there are concerns that the certificates are not always provided at the time the goods enter the United States.The electronic filing system will require importers to provide five data points: (1) identification of the finished product; (2) each safety rule under which the product has been certified; (3) the manufacturer and place of manufacture; (4) the parties who tested the product to certify its compliance with applicable regulations; and (5) an indication that a required certificate currently exists for the product.  The electronically filed information will be available to CPSC for validation and risk assessment. Ultimately, the electronic data will guide CPSC’s determination of a product’s admissibility into the country.The electronic filing program is part of CPSC’s larger “single window” approach for imported products. The “single window” framework aims to give companies a single point for submitting import-related information to the multiple agencies that have jurisdiction over goods entering the United States.Importers interested in participating in the pilot program should contact CPSC for more information.  The test program will begin no earlier than July 2016.  CPSC will accept electronic requests to participate in the pilot program before the program starts, and will continue to take requests throughout the duration of the pilot.  Participating in the pilot program may come with significant advantages.  For example, pilot participants may experience a reduction in product safety tests on imported goods.  In the event a products examination is required, shipments will be conditionally released to the importer’s premises for examination.  In the event of testing, participants will receive “front of the line testing” from CPSC laboratories.  And in the event that products must be destroyed, participants may be allowed to destroy products themselves in lieu of redelivering the product for destruction.  Finally, the opportunity to cooperate and collaborate with CPSC in a limited context before full-scale implementation of the pilot program could prove advantageous in strengthening a company’s relationship with CPSC.

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

CPSC Will Launch Electronic Filing System Pilot Program for Imported Products

Last week, the Consumer Product Safety Commission (CPSC) approved a pilot program to test an electronic filing system that will require importers to submit data

CPSC Will Launch Electronic Filing System Pilot Program for Imported Products

A recent decision from the Southern District of California demonstrates the potential narrowing effect of a failure to strictly comply with the notice requirement for claims for damages under California’s Consumers Legal Remedies Act (CLRA), Cal. Civ. Code § 1750 et seq. In Ruszecki v. Nelson Bach USA Ltd., No. 12-cv-495 (S.D. Cal. June 25, 2015), the plaintiff alleged violations of the CLRA (along with other claims) based on Nelson Bach’s marketing and sale of various “Rescue Remedy” homeopathic products. According to the plaintiff, Nelson Bach falsely represented these products as “natural” even though they contain certain artificial or synthetic ingredients and also falsely represented the products as having health benefits and having been proven effective.Nelson Bach moved to dismiss the CLRA claims on the basis of plaintiff’s failure to comply with the CLRA’s notice requirement, among other things. That requirement obligates claimants to provide notice of the particular CLRA violation at issue prior to suing for damages so that the alleged violator has the opportunity to cure the problem. See Cal. Civ. Code § 1782(a). Nelson Bach argued that because the plaintiff was required to provide notice of the “particular alleged violations” of the CLRA, the CLRA claims should be dismissed to the extent they were based on any products or alleged misrepresentations that were not explicitly mentioned in the plaintiff’s pre-suit demand letter. That letter did not reference the allegedly false “natural” representations and stated only that “all of YOUR products, not only Original Rescue Drops, have no efficacy beyond a placebo.”The Southern District ruled in favor of Nelson Bach, holding that a CLRA claimant “must provide notice for each particular product the plaintiff is seeking damages for, even when the products are substantially similar [and] must notify the defendant of each alleged violation of the CLRA.” Accordingly, the court dismissed the CLRA claims with prejudice to the extent they were based on products other than Nelson Bach’s Original Rescue Drops or on alleged misrepresentations other than those related to efficacy.

Rescue Remedy Decision Confirms that CLRA Notice Requirement Has Real Teeth

A recent decision from the Southern District of California demonstrates the potential narrowing effect of a failure to strictly comply with the notice requireme

Rescue Remedy Decision Confirms that CLRA Notice Requirement Has Real Teeth

The Ninth Circuit has held that a district court abused its discretion in certifying a class based on allegedly false health claims because not all class members saw the advertising. The Ninth Circuit said that the trial court thus erred in ruling that the predominance requirement was satisfied: “[I]n order for the issue to predominate, it must at least be common and there must be cohesion among the class members. It is upon those rocks that the district court’s certification founders.” Cabral v. Supple LLC, No. 13-55943 (9th Cir. June 23, 2015) (citations omitted).The district court held that the common issue that predominated was whether the defendant, Supple LLC, had misrepresented to the class members that its dietary supplement, which contained glucosamine hydrochloride and chondroitin sulfate, was “‘clinically proven effective in treating joint pain.’” But that claim was not made in all the advertising for the product. The Ninth Circuit noted that while “some deviations from precise wording . . . might not be fatal to class certification, advertisements that did not declare [the supplement] to be ‘clinically proven effective in treating joint pain’ are a far cry from advertisements that did.”Accordingly, the trial court erred in certifying the class: “In a case of this nature, one based upon alleged misrepresentations in advertising and the like, it is critical that the misrepresentation in question be made to all of the class members.” The Ninth Circuit cited both federal and California state court decisions in support of this holding. Cabral, citing Mazza v. Am. Honda Motor Co., 666 F.3d 581, 596 (9th Cir. 2012); Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1020 (9th Cir. 2011); Davis-Miller v. Auto. Club of S. Cal., 201 Cal. App. 4th 106, 124-25 (2011) (CLRA and UCL); Fairbanks v. Farmers New World Life Ins. Co., 197 Cal. App. 4th 544, 562 (2011) (UCL); Pfizer Inc. v. Super. Ct., 182 Cal. App. 4th 622, 629-30 & n.4, 631-32 (2010) (UCL and FAL), and Cohen v. DirecTV, Inc., 178 Cal. App. 4th 966, 980-81 (2009) (UCL and CLRA).

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

Ninth Circuit Reverses Class Certification In Joint Supplement Case Because Not All Class Members Saw Misrepresentation

The Ninth Circuit has held that a district court abused its discretion in certifying a class based on allegedly false health claims because not all class member

Ninth Circuit Reverses Class Certification In Joint Supplement Case Because Not All Class Members Saw Misrepresentation

A New Jersey federal court ruled that plaintiffs once again failed to demonstrate the ascertainability of a class of purchasers seeking to challenge “all natural” claims by the makers of Skinnygirl Margarita. Stewart v. Beam Global Spirits & Wine, Inc., No. 11-5149 (D.N.J. June 8, 2015). The court held that the Third Circuit’s high bar for demonstrating ascertainability was not lowered by its most recent decision on the issue, Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015). The Stewart decision is notable for its analysis and rejection of plaintiffs’ effort to rely on a class action administrator’s declaration to establish a “reliable and administratively feasible” methodology for ascertaining class membership.Ascertainability RequirementsThe court noted that there are two requirements for ascertainability: (1) the class must be defined with reference to objective criteria, and (2) there must be a reliable and feasible mechanism for determining whether putative class members fall within the class definition. The court concluded that, because putative class members were simply defined as purchasers of Skinnygirl Margaritas between specified dates, the first requirement was satisfied; the second, however, was not.The court reiterated the Third Circuit’s guiding principle, first articulated in Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir. 2013), that ascertainability may not be based on the purported class members’ “say so;” a methodology that depends primarily on class members’ affidavits does not give defendants a “suitable and fair” basis for challenging class membership. In Stewart, the defendants did not sell directly to consumers and did not have records that would permit identification of class members. Plaintiffs attempted to satisfy the requirement of a reliable and feasible methodology for identifying class members by submitting the declaration of Steven Weisbrot, the executive vice president of Angeion Group, LLC, a class action administration firm, detailing the methodology proposed to be applied. The court addressed the proposed methodology in detail, finding it lacking in numerous respects.Analysis of Proposed MethodologyThe Weisbrot declaration proposed a three-tiered methodology. In the first level of review, claims submitted with a receipt would be accepted and subject to further review only at the third level. Class members who had not retained receipts would be subject to a second level of review, involving multiple factors such as identifying the size of the bottle from photographs and providing details about date of purchase, place of purchase, and price, which the class action administrator would use to validate claims. Finally, a third level of review would apply “sophisticated . . . data matching techniques” to identify patterns of duplication.The court found the declaration insufficient at every level. The court noted that few purchasers would have retained receipts, and that, in any event, possession of a receipt did not necessarily demonstrate that the claimant had purchased the product. Claimants could fabricate receipts, use a receipt to support more than one claim, or could have come into possession of the receipt by happenstance. The third tier of review would only identify duplicative claims, not detect other types of fraud.The court expressed even more skepticism as to the second level of review, noting that even the named plaintiffs could not recall the details of their purchases. The court stated that it was “left to wonder how the named plaintiffs, or any claimant, can complete an affidavit attesting under oath to the details of their purchases when they cannot remember such specifics.” The court concluded that claimants would either provide only generalized information that would not provide any indicia of reliability, would speculate, or could possibly make up the information. The court thus concluded that the fraud prevention methodology in the declaration was not a workable, reliable process for identifying class members. The court also noted that even were the proposed methodology workable, plaintiffs had not demonstrated that it was reliable because Mr. Weisbrot admitted that it had only been applied to settlement classes and never to a litigation class, and because he admitted in his deposition that it might not be reliable.The court lastly rejected plaintiffs’ argument that defendants’ due process rights were protected because total damages from the sales of the beverage were purportedly objectively quantifiable and not based on consumers’ proof of purchase. Following Carrera, the court said that even if defendants’ rights were protected, the risk of fraudulent claims meant that the recovery of legitimate claimants could be improperly diluted. The court then denied class certification based on plaintiffs’ inability to carry their burden of proof that the class was ascertainable.Ascertainability in the Ninth CircuitThe Ninth Circuit has not yet ruled on the standard for ascertainability; a case currently pending before the court, Jones v. Conagra Foods, Inc., No. C12-01633 CRB (N.D. Cal. June 13, 2014), will provide the first opportunity for it to do so. District court opinions in food labeling cases within the Ninth Circuit have taken a variety of approaches to the ascertainability issue. Some cases have adopted the Third Circuit approach. See, e.g., In re Clorox Consumer Litigation, 301 F.R.D. 436 (N.D. Cal. 2014); Sethavanish v. ZonePerfect Nutrition Co., No. 12-2907-SC (N.D. Cal. Feb. 13, 2014). Others have rejected it, taking a significantly more permissive approach to ascertainability and finding it sufficient for plaintiffs to rely on class member declarations and an adequate notice plan. See, e.g., Allen v. Similasan Corp., No. 12-cv-376 BAS (JLB) (S.D. Cal. Mar. 27, 2015); Lilly v. Jamba Juice Co., No. 13-cv-02998-JST (N.D. Cal. Sept. 18, 2014). Still other courts in the Ninth Circuit have rejected the Third Circuit’s approach as too strict but have nonetheless found classes unascertainable because variations in product labeling, advertising, product contents, or other factors precluded ascertainability. See, e.g., Jones v. Conagra Foods, supra; In re POM Wonderful, LLC, No. 10-2199 DDP (RZx) (C.D. Cal. Mar. 25, 2014).If the Ninth Circuit rejects the Third Circuit’s approach and adopts a different standard, ascertainability may well be the next major class action issue headed for the United States Supreme Court.

Skinnygirl Margarita Class Rejected Again: Proof Fell Below Third Circuit’s High Bar for Ascertainability

A New Jersey federal court ruled that plaintiffs once again failed to demonstrate the ascertainability of a class of purchasers seeking to challenge “all natura

Skinnygirl Margarita Class Rejected Again: Proof Fell Below Third Circuit’s High Bar for Ascertainability

The United States Consumer Product Safety Commission (CPSC) continues to escalate its enforcement efforts. Last week, the United States Department of Justice, on behalf of CPSC, filed suit against Spectrum Brands, Inc.  (“Spectrum”). United States v. Spectrum Brands, Inc., No. 3:15-cv-00371 (W.D. Wisc.). This is CPSC’s second enforcement lawsuit filed in 2015—yet another year that will likely set records for CPSC penalties.The complaint alleges that Spectrum not only failed to comply with CPSC reporting requirements, but also allowed hundreds of defective coffeemakers to be sold after a 2012 recall of the products. CPSC seeks both civil penalties and injunctive relief. While Spectrum has indicated that it will “vigorously defend itself” in this matter, this CPSC-backed lawsuit should be viewed as a warning to similarly situated companies deciding whether or not to report products containing potential hazards. This is especially true in light of the previous CPSC-backed lawsuit filed less than two months ago against a retailer for alleged reporting violations and misrepresentations. Companies may also want to look to this lawsuit when deciding whether or not to pursue settlement options following a CPSC civil penalties investigation in order to avoid litigation.REPORTING STANDARDThe Consumer Product Safety Act (CPSA) requires that manufacturers, distributors, and retailers “shall immediately inform” CPSC of any potential substantial product safety hazards or unreasonable risks of serious injury associated with their products. According to CPSC, “immediately” means “within 24 hours.” 16 C.F.R. § 1115.14(e).THE ALLEGATIONS AGAINST SPECTRUMThe complaint alleges that in November 2014, Spectrum merged with Applica Consumer Products, Inc. (“Applica”), with Spectrum surviving and assuming all assets and liabilities of Applica.According to the complaint, Applica manufactured approximately 150,000 coffeemakers between January 2008 and April 2012. As early as February 2009, Applica began hearing from highly concerned consumers who reported that the coffeemaker’s carafe handle could break and allow hot coffee to spill. The complaint lists 21 specific consumer reports received from 2009 through 2011. Many of these consumers were obviously concerned and upset. They saw the carafe as a potential danger, making comments that “[t]his carafe should be recalled because of burn danger!!!” and “this is a seriously defective product!”In March 2012, Applica was served with a class action complaint over the carafe handles. It wasn’t until April 3, 2012, that Applica submitted its Section 15(b) report to CPSC. On April 27, 2012, Applica followed up with an amended and supplemental report. By that time, Applica had received approximately 1,600 consumer reports “of the handle splitting, breaking, or separating from the carafe of the Coffeemaker, including more than 60 reports of related burns.”On June 1, 2012, Applica and CPSC issued a joint press release announcing a recall of the products. Initially, the remedy was a replacement carafe but the recall was updated to ask consumers to stop using the coffeemakers altogether and contact Applica for a full refund.The complaint charges Spectrum with knowingly failing to “immediately inform the CPSC upon obtaining information that reasonably supported the conclusion that the Coffeemaker created an unreasonable risk of serious injury, in violation of 15 U.S.C. §§ 2064(b)(4) and 2068(a)(4).” The government claims that the violation was ongoing from the time Spectrum obtained information concerning the “unreasonable risk of serious injury” until it adequately reported this information to CPSC.The alleged violations extend beyond reporting obligations. For nine months following the recall, Applica continued to distribute several hundred recalled coffeemakers. Applica notified CPSC of this error in late July 2013. On August 15, 2013, Applica and CPSC issued a second recall notice for the 641 coffeemakers that were sold after the initial June 1, 2012 recall.On top of Applica’s past violations, the complaint attacks Spectrum’s current compliance efforts (as Spectrum assumed Applica’s liabilities). According to the government, Spectrum still hasn’t “implemented and maintained a reasonable and effective program or system for complying with the reporting requirements of the CPSA and related regulations and the CPSA’s prohibition on the sale, distribution or importation of recalled products.”The complaint seeks civil penalties for “each separate violation, and the related series of violations.” It also seeks injunctive relief in the form of compliance and the establishment of an internal compliance program.CPSC OVERSIGHT AND INCREASED ENFORCEMENTThis lawsuit continues the trend of increased CPSC enforcement, which has largely been directed at unsafe products and associated reporting violations. CPSC-backed lawsuits have historically been rare. Before this year, CPSC had only filed three lawsuits and one administrative complaint, all seeking mandatory recall remedies under Section 15 of the CPSA. But in the past two years, CPSC has significantly increased its assessment of civil penalties stemming from companies’ failures to report potential defects.<a href="#_ftn1" name="_ftnref1">[1]</a> Now, in a flurry of activity, CPSC has initiated two separate lawsuits enforcing provisions of the CPSA within a two-month period.This lawsuit is likely the result of settlement negotiations that have fallen through. Most civil penalties investigations brought by CPSC end in settlement. The alternative isn’t great. CPSC carries a big stick and isn’t afraid to wield it, as seen with the litigation and publicity surrounding rare earth magnets.<a href="#_ftn2" name="_ftnref2">[2]</a> Going to the mat with CPSC means litigating in federal court—a very public forum compared to settlement negotiations. But when a company believes it has strong defenses or a sympathetic position and CPSC still demands high civil penalties and rigorous internal compliance programs, companies may be willing to fight CPSC in open court. Depending on the outcomes of these recent lawsuits, CPSC may become more aggressive in referring cases to the Department of Justice. Increased litigation may encourage CPSC to raise penalty demands and, as a result, increase the pressure on companies to settle.To avoid this pressure, we advise manufacturers, distributors, and retailers of products to maintain clear and well-understood policies for evaluating and reporting on potential product hazards. These policies should be up-to-date and clearly communicated to company employees. Additionally, recalling companies should implement safeguards and procedures to avoid distributing recalled products into the stream of commerce. Once in CPSC’s crosshairs, careful negotiation with a healthy dose of cooperation may be the best solution for companies fearful of the high costs, adverse publicity, and the uncertainty that comes with litigation. <a href="#_ftnref1" name="_ftn1">[1]</a> “CPSC Penalties to Increase Beyond ‘Cost of Doing Business,’” Morrison & Foerster Client Alert, Mar. 3, 2015.<a href="#_ftnref2" name="_ftn2">[2]</a> See “The Epic Buckyballs® Saga Settles,” Morrison & Foerster Client Alert, May 20, 2014.

Recall, Enforce, Repeat! CPSC and DOJ Team Up for Another Enforcement Action

The United States Consumer Product Safety Commission (CPSC) continues to escalate its enforcement efforts.
Last week, the United States Department of Justice, o

Recall, Enforce, Repeat! CPSC and DOJ Team Up for Another Enforcement Action

The FAA’s regulatory actions on unmanned aircraft systems (“UAS”) are accelerating, making it more important than ever for those in the industry—and those looking to use this technology in their own sectors—to keep their eyes on Washington.At a drone industry conference earlier this month, the FAA announced a new partnership to explore the future of UAS operations, beyond the limited range of operations permitted by the draft rules the agency released in February.  The focus of the FAA program, called “Pathfinder,” is on three areas that have been the subject of much discussion after the release of the draft rules: visual line-of-sight operations in urban and populated areas, extended line-of-sight operations in rural areas, and beyond visual line-of-sight operations.The Pathfinder program bodes well for the future of drone regulation.  In the wake of the Notice of Proposed Rulemaking (NPRM) for small UAS, many drone operators struggled to see how the FAA’s rulemaking process could keep up with the pace of innovation, and permit the most promising technologies to take flight.  Last week’s announcement is a significant step by the FAA to formalize its efforts to understand the risks and rewards of increasingly sophisticated drone operations.Accelerating Agency ActionThe recent announcement is the latest example of the FAA’s evolution in drone regulation.  The process leading to release of the NPRM in February was slow, even by federal regulatory standards, as the agency struggled to meet its own deadlines to come up with rules for the sky.  The NPRM was generally seen as a step in the right direction, but many in the drone industry and among potential users argued that the NPRM’s proposed prohibition on drone operations beyond the user’s line of sight limited some of the most significant potential applications of drones.Since the NPRM’s release, there have been several encouraging signs that the agency is taking a more flexible approach:First, in late March, the agency relaxed the application process for Certificates of Authorization (“COAs”). Essentially, the FAA created a blanket COA for drone users who had already received an exemption from certain regulations (known as a “Section 333 exemption”).  Previously, COAs covered relatively limited areas, requiring drone operators to apply for a new COA any time they wished to fly in another region, a process that could entail months before an FAA decision.  Under the new COA, existing exemption holders can fly effectively anywhere nationwide under 200 feet, subject to a handful of safety restrictions (such as avoiding airports).Second, in April, the FAA acted quickly after Amazon said the agency had taken so long to approve its request to test delivery drones that its drones were obsolete by the time the FAA made its decision.  Responding in a matter of weeks, the agency approved Amazon delivery test flights using its newer drones.  Those flights could take place up to 400 feet high at up to 100 miles an hour over private property and within sight of the remote-control pilot or a designated observer.Third, the FAA in April announced a summary grant process for Section 333 exemptions. Under this process, the FAA will continue to review each individual application, but will issue a summary grant where it finds that it has already granted a previous exemption similar to the request.  The FAA also relaxed the requirement that the individual operator hold a commercial or private pilot certificate and at least a third-class airman’s medical certificate.  Going forward, the FAA will allow exemptions for individuals holding a sport or recreational pilot certificate, and a driver’s license in place of a medical certificate. The lower standard is significantly easier to meet and reduces the burden (and especially costs) on drone operators.Fourth, non-regulatory FAA actions in the drone world are coming at a faster clip as well.  The FAA announced, in addition to the Pathfinder program, a new smartphone app, B4UFly, to help operators determine restrictions that may apply to their flight paths.  The app announcement follows close on the heels of the release of AirMap.io, a free iOS and Android app created by Pepperdine School of Law professor Greg McNeal and Ben Marcus that shows users where it is safe to fly.  A little over a week ago, the FAA announced that Mississippi State University will lead a team of 13 universities in running a new national center to research unmanned aerial vehicles.  The Alliance for System Safety of UAS through Research Excellence (ASSURE) will help the FAA research technologies and systems to safely integrate drones and manned aircraft in the same airspace.Industry EngagementThe Pathfinder program signals an increasing effort to engage with the drone industry, even when the agency cannot accelerate the rule making process.  To that end, the agency is using industry partnerships to understand the risks and opportunities associated with different types of drone operations.The FAA will collaborate with CNN to explore drone use by journalists in populated areas, while keeping the drones in sight.  The FAA and PrecisionHawk, a leading manufacturer and service provider for agricultural applications, will examine extended line-of-sight drone use in precision agricultural operations.  And BNSF Railroad and the agency will explore command-and-control challenges when operating beyond visual contact, such as inspecting rail system infrastructure.“What we’re trying to do here is push the envelope,” FAA Administrator Michael Huerta told reporters at the Association for Unmanned Vehicle Systems International (AUVSI) conference in Atlanta, according to The Wall Street Journal. “The rule-making process is deliberative so we’re actively looking for other things we can do and ways we can expand use of unmanned aircraft in the meantime.”The agency indicated that the companies had reached out to the FAA to explore potential partnerships, and Huerta told attendees at the conference, “You can interpret that as an invitation.”  This presents an intriguing opportunity for drone operators to help the FAA understand the potential benefits of drone technology.Huerta also said the results of the research the FAA will conduct with the program’s three partners will “help us determine if and how we can safely expand unmanned-aircraft operations in the United States,” according to The National Journal.  The agency tweeted that the program “could result in FAA-approved operations in the next few years.”Media Use of UASLess celebrated was the FAA’s release of a legal memo from the Chief Counsel’s Office titled Media Use of UAS.  The memo addresses under what circumstances photography captured by drones can be legally sold—an area blurred by the widespread commercial availability of drones that can capture professional-quality images.According to the memo, absent FAA permission, news organizations cannot use drones to take news photos because those operations do not qualify for the hobbyist exemption.  “Because the use of an unmanned aircraft by a media entity to gather news would be in furtherance of that entity’s business, the operations would fail the ‘hobby or recreation’ test of [the FAA Modernization Act of 2012],” the agency said.Similarly, professional photographers cannot sell their photos to news organizations with FAA approval if the photos were captured by drone.  The FAA allows for some wiggle room where a hobbyist has captured newsworthy images: “If the individual[] takes the pictures or videos or gathers other information as part of a hobby or recreational activity, then a later decision to sell some or all of those pictures, videos or other information” does not necessarily require FAA permission.  The ambiguity in determining when someone goes from a hobbyist occasionally selling pictures to a professional drone photographer is reflected in the memo’s final sentence: “The FAA would have to consider each case on its own merits.”The memo fails to address the potential free-speech concern with limiting drone journalism.  In 2014, a group of 15 media companies filed an amicus brief in Huerta v. Pirker, arguing that the media’s use of drones was protected by the Constitution.  The brief, whose co-authors included The New York Times, Associated Press, and Washington Post, claimed that the “FAA’s position is untenable as it rests on a fundamental misunderstanding about journalism.  News gathering is not a ‘business purpose’: It is a First Amendment right.”This most recent FAA memo, which only spans two pages, highlights the challenges faced by an agency attempting to make decisions on the fly.  While the FAA continues to review the comments submitted on the NPRM, it remains unclear what form final drone regulations for small UAS will take, much less the later comprehensive regulations addressing larger drones.  In the interim, the FAA’s piecemeal efforts to address the commercial uses of drones run the risk of regulatory uncertainty and contradiction.  For instance, last week’s FAA memo comes after a March brouhaha precipitated by the FAA’s sending letters to YouTube users who had posted drone footage.  YouTube users have the option of allowing ads to run before their footage.  According the letters from the FAA, this meant that hobbyists were commercial operators and in violation of the FAA’s drone rules.  A few weeks later, John Duncan, director of the FAA’s Flight Standard Service, told FAA inspectors to cease sending the letters.  The memo noted that a video “is ordinarily not sufficient evidence alone to determine” a violation of drone rules.These speed bumps notwithstanding, the FAA’s accelerated pace of action is a welcome change. The Pathfinder program and the FAA’s new dynamism suggest the drone industry may soon face less of a regulatory headwind as it takes flight.

Drones: FAA Announces Pathfinder Program to Explore BVLOS and Urban Drone Operations

The FAA’s regulatory actions on unmanned aircraft systems (“UAS”) are accelerating, making it more important than ever for those in the industry—and those looki

Drones: FAA Announces Pathfinder Program to Explore BVLOS and Urban Drone Operations

On April 29, 2015, California’s Governor Jerry Brown issued an executive order to set a new interim target for reducing the state’s emissions of greenhouse gases (GHGs) to 40 percent below 1990 levels by 2030.  In March 2015, we wrote about the current state of play in GHG regulation in California, noting that the California Global Warming Solutions Act’s (AB 32) silence on GHG reduction requirements after 2020 left a vacuum that could be filled by a 2005 Executive Order issued by Governor Schwarzenegger. The 2005 Executive Order called for GHG emissions to be reduced to 80 percent below 1990 levels by 2050.  Governor Brown’s new Executive Order doubles down on that ambitious goal by setting a similarly ambitious interim target of 40 percent reduction by 2030.Depending in part on how currently pending litigation and proposed Senate Bill 32 (SB 32) are resolved (which we also reported on in our March alert), this latest order threatens to be yet another standard for project proponents to grapple with in determining the significance of their GHG emissions when undergoing environmental review.  SB 32 would codify into state law the requirement that the California Air Resource Board (CARB) approve a statewide GHG emissions limit of 80 percent below 1990 levels by 2050.  As for litigation, briefs have not yet been filed in Cleveland National Forest Foundation et al. v. San Diego Association of Governments, in which the California Supreme Court will determine the import of GHG reduction targets established by gubernatorial decree, such as those in Governor Schwarzenegger’s—and now Governor Brown’s—Executive Orders, unless the state legislature beats it to the punch with SB 32.In the meantime, Governor Brown’s new Executive Order contains numerous requirements directed at state agencies to achieve these ambitious goals.  It calls on CARB to update its Climate Change Scoping Plan, which provides the road map for how GHG reductions will be achieved.  This critical document provides industry with detailed information on what exactly the state will do to regulate GHG emissions.  The Governor’s announcement also can be seen as aligned with many of his other proposals, such as further tightening of the caps in CARB’s aggressive cap-and-trade program, the controversial high-speed rail program, and the initiatives to shift electricity generation to renewable energy sources.  While many experts believe that the interim reductions can be achieved with the increased use of existing technologies, the wild card will be California’s future economic growth, which may strain or counteract the projections of emission reductions.  Thus, the ambitious goals called for by 2030 and 2050 will likely demand a multipronged approach that could have serious impacts on California businesses, including the need for development of new technologies that are not currently available.In connection with the California Natural Resources Agency’s climate adaptation strategy document known as “Safeguarding California,” agencies in key sectors, including water, energy, transportation, and forestry, will be required to prepare implementation plans by September 2015 and to report on actions taken by June 2016.  This aspect of the Executive Order cements climate adaptation as a critical element of agency planning.State agencies will also be required to take climate change into account in planning and investment decisions.  Full life-cycle cost accounting will likely become the norm for state-funded projects.  In other words, projects that utilize GHG reduction strategies to a greater extent will presumably receive an additional boost when being compared to alternatives, even if the alternatives have potentially lower up-front costs.  Current and future climate change impacts will also be taken into account for all infrastructure projects going forward under the state’s Five-Year Infrastructure Plan.To assist agencies with their new responsibilities and obligations, the Governor’s Office of Planning and Research (OPR) is establishing a technical advisory group.  It will be important to track who is selected to be part of this advisory group, as its technical expertise may significantly influence the actual agency decisions that will affect California businesses.Governor Brown is not backing down from the ambitious, aggressive target of an 80 percent GHG emissions reduction below 1990 levels by 2050.  His Executive Order assures that the trajectory for such reductions is in place by adopting the interim target of a 40 percent emissions reduction below 1990 levels by 2030.  Further action by the state legislature or the California Supreme Court may ultimately determine the future of California GHG regulation, but, for now, California businesses must focus on the new Executive Order and the additional regulation it is likely to induce across the state.