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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Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

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Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

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

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

Claudia M. Vetesi

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

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Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

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

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

Adam Hunt

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Alexandra Preece Barlow

Adam J. Hunt

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

New Wave of PFAS Legislation Aimed at Consumer Products

CPSC Releases Annual Report on Deaths and Injuries Involving Nursery Products

CPSC Proposes New Safety Rules for Infant Rockers

CPSC Commissioners Abstain from Retracting Infant Sleep Product Statements

A recent decision by a California federal judge highlights the important role that expert testimony and evidence can play in defeating a bid for class certification. On May 12, 2014, Judge Anthony Battaglia of the Southern District of California denied a motion for class certification in a lawsuit challenging Maybelline’s allegedly false and deceptive advertising regarding its SuperStay 24-hour lipcolor and skin foundation products. Algarin v. Maybelline LLC, Case No. 12cv3000 AJB (DHB). The plaintiffs alleged that they paid a premium for Maybelline’s products, which purportedly did not last for 24 hours as promised, and that the company’s representations would deceive the reasonable consumer.In denying class certification, Judge Battaglia gave considerable weight to Maybelline’s expert testimony. Maybelline’s expert conducted a survey of consumers who had bought either a SuperStay lipcolor or skin foundation product and found that:<ul><li>many purchasers were satisfied and made repeat purchases;</li><li>the duration of the makeup staying on was not the only motivating factor for buying the product;</li><li>and only 9% of the lipcolor buyers and 14% of the skin foundation buyers expected the products to last 24 hours.</li></ul>Therefore, only a small percentage of people were injured in the manner alleged by the plaintiffs.Judge Battaglia found that, “in light of the objective evidence showing that there was a substantial number of class members who were not misled by the 24 hour claim, whether Maybelline’s conduct was false or misleading or likely to deceive is not subject to common proof on a classwide basis.” Additionally, the plaintiffs failed to demonstrate that materiality and reliance were subject to common proof in light of Maybelline’s persuasive evidence of consumer expectations, multiple factors that influence purchasing decisions, and consumer satisfaction with the SuperStay products.

Algarin v. Maybelline: Survey Evidence of Purchaser Behavior Defeats Class Certification

A recent decision by a California federal judge highlights the important role that expert testimony and evidence can play in defeating a bid for class certifica

Algarin v. Maybelline: Survey Evidence of Purchaser Behavior Defeats Class Certification

This month the International Civil Aviation Organization (ICAO) officially adopted a Protocol to amend the Tokyo Convention on offenses committed on aircrafts.  The culmination of a four-year effort to modernize the Tokyo Convention, the Montreal Protocol 2014 makes key changes to improve airlines’ ability to deal with unruly passenger incidents and enhance aviation security.  Some 100 governments participated in the process that led to the Protocol, which will come into force once 22 states ratify it.The Tokyo Convention.  The Tokyo Convention, which came into effect in 1969, governs what action an airline may take to address offences and other acts that occur on board an aircraft during flight.  The Convention allows the aircraft commander to take reasonable measures against an unruly passenger, including restraint, to (1) protect the safety of the aircraft, passengers, and crew, (2) maintain good order and discipline on board, and (3) enable the aircraft commander to deliver the passenger to law enforcement.  Article 10 of the Convention provides immunity from liability in any proceedings for actions taken in accordance with its provisions.It is generally thought that this 50-year-old Convention has served the aviation industry well.  Nonetheless, the past five years have seen a dramatic increase in unruly passenger in-flight incidents.  In fact, according to the International Air Transport Association (IATA), more than 28,000 unruly passenger incidents were reported between 2007 and 2013.  These incidents included violence against crew and other passengers, harassment, and failure to follow safety instructions.To address the rising tide of unruly passenger incidents, a Diplomatic Conference was held between March 26 and April 4, 2014.  The Conference considered proposed revisions to the Tokyo Convention, aimed at ensuring that the Convention continues to work as an effective deterrent to unruly in-flight behavior.And so the Montreal Protocol 2014 was born.  The Protocol makes three key improvements to the Tokyo Convention, including the clarification of the definition of “unruly behavior,” the extension of jurisdiction over in-flight incidents, and the recovery of costs stemming from unruly passenger behavior.  These changes, along with the measures already being taken by airlines, ensure greater liability protection for airlines dealing with unruly passenger incidents.What is unruly behavior?Importantly, Article VIII of the new Protocol eliminates the need for an aircraft commander to have reasonable grounds to believe that an unruly passenger is committing “a serious offence according to the penal law of the State of registration of the aircraft” in order to justify delivery to law enforcement under Article 9.  All that is required under the Protocol is reasonable grounds to believe a “serious offence” has been committed.  Serious offences could range from terroristic threats, to violent or threatening behavior against other passengers or crew, to tampering with a smoke detector.The Protocol also encourages contracting states to take appropriate criminal, administrative, or other measures against any person who commits an in-flight offence, including “physical assault or threat to commit such assault against a crew member” or “refusal to follow a lawful instruction given by or on behalf of the aircraft commander[.]”  See Protocol Article X (adding Convention Article 15(b)).Who has jurisdiction over unruly passengers?  The Protocol also extends the jurisdiction over the unruly passenger’s offense to the destination country of the flight, in addition to the country of aircraft registration.  See Protocol Article IV (replacing Convention Article 3).  This closes a serious Convention loophole that allowed many serious offenses to escape legal action.Can an airline recover costs?  The Protocol also adds provisions to support the recovery of significant costs arising from unruly passenger behavior.  Specifically, Article XIII adds Article 18(b) to the Tokyo Convention, and provides that nothing in the Convention “shall preclude any right to seek the recovery, under national law, of damages incurred, from a person disembarked or delivered [to law enforcement] pursuant to Article 8 or 9[.]”  Nevertheless, airlines may wish to be circumspect in attempting to charge unruly passengers for the high cost of holding up or diverting a flight; most passengers will not have the means to pay such a fine, and airlines may not want to build a reputation for trying to punish their own passengers.Conclusion.The changes effected by the Protocol provide enhanced tools for airlines to handle unruly passengers and combat legal claims arising from disembarkation and delivery to law enforcement.In 2013, a trial team from Morrison & Foerster’s San Diego office won a defense verdict in one of the only, if not the only, case where an airline defense was based on Article 10 of the Tokyo Convention.  The airline argued that the Captain had reasonable grounds for his actions against the unruly passengers, who had refused to follow crew instructions and engaged in a heated verbal altercation with the crew.  Plaintiffs claimed that the Captain acted unreasonably in disembarking them and reporting them to airport police.The 2014 Protocol would have strengthened the airline’s case in at least two ways.  First, the new Article 15(b) would have made even more clear to the jury that refusing a flight attendant’s instructions constitutes unruly behavior, providing additional justification for the Captain’s decision to disembark.  Second, the revised Article 9 would have made clear that a Captain is not required to be an expert on every State’s penal laws in order to form a reasonable belief that a “serious offence” has been committed.Unfortunately, the Protocol did not revise or expound on the Article 6 “reasonable grounds to believe” standard.  It would have been helpful to airlines if the Protocol clarified that this was a standard deferential to the aircraft commander’s judgment and that actions not “arbitrary or capricious” are considered reasonable under the Convention.  Such changes would give airlines a better shot at winning summary judgment under the Tokyo Convention, rather than being forced to go to trial over whether the Captain’s actions were reasonable.

Unruly Passengers Beware: ICAO Delivers Montreal Protocol 2014 to Enhance Enforcement Measures Against Unruly Passengers

This month the International Civil Aviation Organization (ICAO) officially adopted a Protocol to amend the Tokyo Convention on offenses committed on aircrafts. 

Unruly Passengers Beware:  ICAO Delivers Montreal Protocol 2014 to Enhance Enforcement Measures Against Unruly Passengers

In one of the first summary judgment rulings in the onslaught of food mislabeling and misbranding class actions, Judge Lucy Koh of the Northern District of California tossed the plaintiff’s restitution and disgorgement claims.  Her exclusion of the plaintiff’s monetary relief claims is a welcome limitation on class action damages.Background: On January 2, 2014, Judge Koh granted in part and denied in part Bumble Bee’s Motion for Summary Judgment in a class action lawsuit alleging that Bumble Bee made a variety of unlawful, false, and misleading statements about its products, both on its products’ labels and its websites.  See Ogden v. Bumble Bee Foods, LLC, Case No. 5-01828 LHK (N.D. Cal. Jan. 2, 2014).  Among other claims, the plaintiff asserted causes of action for violations of California’s Unfair Competition Law (UCL) and False Advertising Law (FAL) and for a violation of the California Consumers Legal Remedies Act (CLRA).  She sought injunctive relief as well as damages, restitution, or disgorgement.  While finding that the plaintiff had statutory standing to pursue two of her four product claims and upholding her claim for injunctive relief, the court rejected the plaintiff’s request for restitution and disgorgement.  Statutory Standing: The court first concluded that the plaintiff established a genuine issue of material fact as to whether she possessed statutory standing (i.e., suffered a loss of money or property) to pursue claims that Bumble Bee’s statements about its products’ omega-3 content, as well as its front-of-package disclosures, violated state law.  Id. at 23.  The court also found, however, that the plaintiff lacked statutory standing with regard to other nutrient content and health and drug claims, as information regarding these claims appeared on Bumble Bee’s nutrition labels and website, and the plaintiff had admitted that she read neither.  Id. at 22-23.  Most importantly, the court limited its holding to whether the plaintiff possessed statutory standing to pursue her claims—it did not rule on the claims’ substantive merits.Restitution: The court next held that the plaintiff failed to adequately prove her restitution claim.  Id. at 27.  Although she presented sufficient evidence of the total amount of money she spent on Bumble Bee products, the plaintiff failed to present evidence of the difference in value between what she spent and what she received.  Id. at 27.  Indeed, the court stated that:<blockquote>“[The plaintiff] has not provided evidence of the price of any comparable products that do not make the allegedly unlawful label statements, nor has she offered any other evidence regarding the size of the price premium she paid for Bumble Bee’s product due to the allegedly unlawful label statements.”</blockquote>Id. at 27-28.  The court also rejected the plaintiff’s attempt to rely on the declaration of her expert witness, Dr. Oral Capps, as evidence of restitution, as Dr. Capps merely stated that he could provide an estimate of damages, but failed to make actual calculations.  Id. at 28.  In light of the plaintiff’s failure to present substantial evidence to support an award of restitution, the court granted Bumble’s Bee’s Motion for Summary Judgment on this ground.  Id.Disgorgement: The court also rejected the plaintiff’s claim for disgorgement.  Noting that disgorgement under the UCL and FAL is restitutionary in nature, the court found that the plaintiff’s failure to provide evidence of an appropriate amount of restitution similarly barred her disgorgement claim.  Id. at 28-29.  The court therefore granted Bumble Bee’s Motion for Summary Judgment on this ground as well.  Id. at 29.Injunctive Relief: Finally, the court concluded that the plaintiff could pursue her claim for injunctive relief.  Although Bumble Bee argued that, because it was currently revising its allegedly misbranded labels, there would be no future violations, the court found that Bumble Bee had not produced evidence of when the label changes would occur or what the new labels would say.  Id. at 29.  The court thus determined that Bumble Bee had not established that there was no genuine issue of material fact with respect to plaintiff’s entitlement to injunctive relief, and thus the court denied that Bumble Bee’s motion for summary judgment on this ground was warranted.  Id. at 29-30.Takeaway: Overall, Judge Koh’s summary judgment order is a victory for class action defendants.  Her rulings on the plaintiff’s claims for restitution and disgorgement demonstrate that, without concrete proof of a premium paid for allegedly mislabeled products, it is likely that at best only injunctive relief will stand.

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

Judge Koh Tosses Restitution and Disgorgement Claims in Bumble Bee Class Action

In one of the first summary judgment rulings in the onslaught of food mislabeling and misbranding class actions, Judge Lucy Koh of the Northern District of Cali

Judge Koh Tosses Restitution and Disgorgement Claims in Bumble Bee Class Action

A recent decision in the Central District of California reflects the growing trend among federal courts to deny class certification where the class is not ascertainable from the defendants’ records. Last week, U.S. District Court Judge Dale Fischer denied class certification in Alan Hernandez v. Chipotle Mexican Grill, Inc., Case No. 12-05543 DSF (C.D. Dec. 2, 2013), an “all-natural” suit against Chipotle. The plaintiff alleged that Chipotle’s in-store signs and menus falsely advertised its meats as “naturally raised” when, in fact, many Chipotle restaurants served conventionally raised meats at various times throughout the proposed class period. The plaintiff also contended that Chipotle’s point-of-purchase (POP) signs, which publicized supply shortages of naturally raised meats, insufficiently informed customers that certain stores served conventionally raised meats.In denying class certification, Judge Fischer found that common questions did not predominate over individual issues and that there was no way to determine class membership in a reliable or administratively feasible manner:Purchase Records: First, Judge Fischer found that the court would need to individually resolve key questions regarding consumers’ purchases of contested meats. Because “the alleged misconduct took place only with regard to varying products at varying locations within limited time frames,” the court would need to individually assess “when a class member ate at Chipotle, the exact location where he ate, and which meat (if any) he ate . . .” to determine the appropriateness of his class membership. Moreover, because the “dispute concern[ed] a low price transaction that neither class members nor Chipotle maintain[ed] specific records of or could be expected to recall,” it would be impossible to prove whether any given individual was a member of the class. These difficult factual questions demonstrated that individual issues predominated over common questions and that the class was not readily ascertainable.POP Signs: Second, Judge Fischer also found that the court could not determine on a classwide basis which class members were exposed to Chipotle’s allegedly insufficient POP signs. The court would instead have to assess individually whether each proposed member saw the POP sign, and, if not, why he or she did not see it—either because of Chipotle’s negligence, the class member’s negligence, or because the sign was not there. Such an inquiry only further demonstrated the predominance of individual issues that rendered the class unascertainable.Class Action Not Superior: Finally, individual liability issues demonstrated that a class action was not a fair or efficient mechanism to adjudicate the plaintiff’s claims. Judge Fischer was specifically concerned that the claims administration process would not appropriately compensate class members. Given the complicated process of filing a claim, the court was concerned that potential claimants would either lie, incorrectly fill out a claim form or not even bother:<blockquote>“Money would [therefore] be given out basically at random to people who may or may not actually be entitled to restitution. This is unfair both to legitimate class members and to Chipotle,” the Court concluded. </blockquote>Takeaway: Judge Fischer’s denial of class certification suggests that federal courts are imposing a greater threshold than in the past to prove that a class is ascertainable. Indeed, the Third Circuit recently denied class certification on these grounds, finding that the plaintiff’s proposed use of third-party retail records and class members’ affidavits did not provide a reliable or administratively feasible method to prove class membership. See Carrera v. Bayer Corp., 727 F.3d 300, 308 (3d Cir. 2013); see also Red v. Kraft Foods, Inc., No. CV 10-1028-GW (AGRX), 2012 WL 8019257 at *5-6 (C.D. Cal. Apr. 12, 2012) (finding that putative class members’ lack of receipts presented a “significant legal and practical hurdle” in ascertaining class membership); Weiner v. Snapple Beverage Corp., No. 07 CIV. 8742 DLC, 2010 WL 3119452 at *13 (S.D.N.Y. Aug. 5, 2010) (finding class unascertainable where plaintiffs failed to demonstrate that “putative class members will have retained a receipt, bottle label, or any other concrete documentation of their purchases” of product with contested “All Natural” label). Defendants whose businesses do not readily store identifiable customer information and/or permit identification of class members exposed to alleged misconduct may find these cases to be a welcome trend in defending against class actions.

Class Certification Denied in Chipotle “All Natural” Case Where Class Unascertainable from Chipotle’s Records

A recent decision in the Central District of California reflects the growing trend among federal courts to deny class certification where the class is not ascer

Class Certification Denied in Chipotle “All Natural” Case Where Class Unascertainable from Chipotle’s Records

As we have noted in prior posts (<a href="http://www.privatesurgeongeneral.com/tag/food-drug-and-cosmetic-act-fdca/" target="_blank">FDCA</a>, <a href="http://www.privatesurgeongeneral.com/tag/pom-wonderful/" target="_blank">POM</a>, <a title="Preemption and the Health Claim Class Action: FDA to the Rescue?" href="http://www.privatesurgeongeneral.com/2012/09/13/preemption-and-the-health-claim-class-action-fda-to-the-rescue/">preemption</a>), the Food, Drug, and Cosmetic Act (“FDCA”) can provide a powerful tool to food companies that are hit with claims about their labeling.  Yesterday, Judge Otero in the Central District of California confirmed that preemption under the FDCA has teeth, finding that the FDCA preempts California’s Unfair Competition Law (“UCL”) and False Advertising Law (“FAL”), Cal. Bus. & Prof. Code §§ 17200, et seq., 17500, et seq. in the POM Wonderful lawsuit against Coca-Cola.  Pom Wonderful LLC v. The Coca-Cola Company, et al., No. 2:08-cv-06237-SJO-FMO, Docket Entry 417 (C.D. Cal. Feb. 13, 2013).As a quick recap, in 2007, plaintiff Pom Wonderful sued Coca-Cola for alleged false advertising of Coca-Cola’s “Pomegranate Blueberry Blend” juice.  POM Wonderful claimed that Coca-Cola misled consumers with its label and name because the product purportedly consisted of over 99% apple and grape juices.  POM alleged violation of the Lanham Act, as well as California’s UCL and FAL statutes.  On summary judgment, the court dismissed plaintiff’s Lanham Act claims relating to the name and labeling of the product, holding that they were preempted by the FDCA.  The state law claims were dismissed for lack of standing.On appeal, the Ninth Circuit affirmed the lower court’s determination that the FDCA preempts Pom’s Lanham Act claims.  The Ninth Circuit did not address whether plaintiff’s UCL and FAL claims are also preempted, or whether California’s safe-harbor doctrine insulates the defendant from liability on such claims.  On remand, Coca-Cola moved for summary judgment on these remaining issues.On February 13, 2013, Judge Otero found for Coca-Cola, finally disposing of POM Wonderful’s suit.  The Court acknowledged Pom’s Catch-22:<blockquote>“Either [the state law claims] impose obligations identical to those in the FDCA, in which case Defendant has already satisfied [its] obligations; or they impose obligations additional to those in the FDCA, in which case they are preempted[.]”</blockquote>Finding that POM was indeed attempting to impose additional requirements under state law, the Court dismissed such claims as preempted.  And for good reason.  Citing the Seventh Circuit in Turek v. Gen. Mills, Inc., 662 F.3d 423, 427 (7th Cir. 2011), the court explained the “broad policy goals” for “holding that the FDCA preempts application of non-identical state law labeling requirements”:<blockquote>“[I]t is easy to see why Congress would not want to allow states to impose disclosure requirements of their own on packaged food products, most of which are sold nationwide.  Manufacturers might have to print 50 different labels, driving consumers who buy food products in more than one state crazy.”</blockquote>But the court did not stop at preemption, finding that California’s safe-harbor doctrine—which will not let liability lie where the federal or state legislature has permitted such conduct—also shielded Coca-Cola from liability.

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Alexis is a skilled class action and commercial litigator, and practices in a variety of high-profile areas, including: Breach of contract, Complex consumer class actions, False advertising, Federal banking law










Alexis Amezcua

Alexis’ practice focuses on a variety of substantive areas, including breach of contract, wrongful termination, trade secret theft, unfair competition, product liability, federal banking law, complex consumer class actions, and wrongful death. Alexis has represented both plaintiffs and defendants, and her practice includes substantive arbitration experience, as well as trial experience in state and federal courts. She is a frequent speaker and author on topics related to arbitration, the Servicemembers Civil Relief Act, consumer class actions, and consumer product safety.What do you like best about your work? I love the “chess game” of litigation. As a litigator, my job is to be steps ahead of my opponent and think strategically about where the other party is going, why, and how we can best outmaneuver him or her. It means brainstorming with my whip-smart team members and clients, understanding our goals, and, of course, jumping into the ring (figuratively) at hearings, depositions, and, ultimately, at trial.What do you enjoy doing in your free time? In my free time, I most enjoy spending time with my 3-year-old daughter, husband, and extended family, usually during outdoor or travel excursions. What is your favorite thing about living in your current city? We live in Burlingame, mid-way between San Francisco and Palo Alto. I love its walk- and bike-ability. We bike almost everywhere on the weekends, including to parks, restaurants, and the library. It sure beats having to wrestle a toddler into a car seat.

Alexis A. Amezcua

Preemption Still Has Teeth: The FDCA Keeps California False Advertising Claims at Bay in Pom Wonderful Suit

As we have noted in prior posts (FDCA, POM, preemption), the Food, Drug, and Cosmetic Act (“FDCA”) can provide a powerful tool to food companies that are hit wi

Preemption Still Has Teeth:  The FDCA Keeps California False Advertising Claims at Bay in Pom Wonderful Suit

Are retailers at risk in private surgeon general class actions?  Often, their only conduct is putting a product on the shelf.  They haven’t designed the product, much less had any input on the product labels or advertising.  Yet, time after time, retailers are named as defendants in false advertising class actions.  Private surgeon generals often treat manufacturers and retailers as one and the same in their complaints, pleading blanket allegations of negligence, strict liability, breach of implied and express warranties, and violations of various state consumer protection statutes.  To date, there isn’t any kryptonite to keep these lawsuits away, but there are a few tactics to keep them at bay.No Vicarious Liability:  Move to dismiss or move for summary judgment on the grounds that a retailer does not advertise a product merely by selling it, and cannot be held vicariously liable for false advertising.  See, e.g., Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 792 (9th Cir. 2007) (“[U]nfair practices claim[s] . . . cannot be predicated on vicarious liability.  A defendant’s liability must be based on his personal participation in the unlawful practices and unbridled control over the [alleged offending] practices[.]”) (citing Emery v. Visa Int’l Serv. Ass’n, 95 Cal. App. 4th 952, 964 (2002) (“[E]ven if [the defendant] allowed [use] of its logo, trade name, or trademark, it would not be liable for false advertising.  There is no duty to investigate the truth of statements made by others.”)).Seller’s Exception:  Assert the so-called “Seller’s Exception” available in a number of states, which expressly excludes non-manufacturing sellers from strict liability resulting from harm alleged to have been caused by a product.  Illinois (735 ILCS 5/2-621), Georgia (O.C.G.A. 51-1-11.1), Indiana (Indiana Code section 34-20-2-3), and New Jersey (N.J.S.A. 2A:58C-9) are but a few of the states that shield sellers from strict product liability.California’s Sherman Act: Assert California’s Sherman Act to defeat liability under California’s UCL and other state unfair competition statutes.  California’s UCL cannot be used to impose liability on a seller who is expressly excluded from liability by another statute, see Hobby Industry Assoc. of America v. Younger, 101 Cal. App. 3d 358, 369-71 (1980), and California’s Sherman Food, Drug, and Cosmetic Act, Cal. Health & Safety Code § 110245, does just that (“Immunity of Dealers from Prosecution”) (excepting sellers from liability for the sale of an adulterated or misbranded product where certain circumstances are met).Federal Food, Drug, and Cosmetic Act: Assert the federal Food, Drug, and Cosmetic Act to defeat liability under California’s UCL, and other state unfair competition statutes.  See 21 U.S.C. § 333(c)(1)-(2) (“Exception in Certain Cases of Good Faith”) (excepting sellers from liability for the selling of an adulterated or misbranded product under certain circumstances).

Strategies and Defenses for Retailers Named in Consumer Class Actions

Are retailers at risk in private surgeon general class actions?  Often, their only conduct is putting a product on the shelf.  They haven’t designed the product

Strategies and Defenses for Retailers Named in Consumer Class Actions