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

Yesterday, the Supreme Court established a clear rule that a party litigating in federal court cannot later compel arbitration by arguing that there was no harm to the opposing party.  In Morgan v. Sundance, the Court unanimously held that a party opposing arbitration does not need to show that it experienced any prejudice in order to establish that the party attempting to invoke arbitration waived that right by pursuing litigation in federal court.<a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234840672-v4-Morgan_v__Sundance_CAMT_Blog_Post.docx#_ftn1">[1]</a>The Court’s decision in Sundance resolved a circuit split over what test federal courts should apply to assess whether a party waived its right to compel arbitration.  The Seventh Circuit and D.C. Circuit employed a two-element test for waiver, which required a party to show (1) knowledge of an existing right to compel arbitration and (2) intentional acts inconsistent with that right to arbitration.  But the First Circuit, Second Circuit, Third Circuit, Fourth Circuit, Fifth Circuit, Sixth Circuit, Ninth Circuit, and Eleventh Circuit added a third element that made establishing waiver more difficult: the party opposing arbitration had to show that it experienced prejudice.<a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234840672-v4-Morgan_v__Sundance_CAMT_Blog_Post.docx#_ftn2">[2]</a>  In a short seven-page opinion by Justice Elena Kagan, the Court endorsed the two-factor test.The plaintiff in Sundance brought a nationwide collective action against her employer in federal court for violations of the Fair Labor Standards Act, despite having signed a confidential binding arbitration agreement for all employment disputes.<a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234840672-v4-Morgan_v__Sundance_CAMT_Blog_Post.docx#_ftn3">[3]</a>  After litigating the case for nearly eight months in federal court, including filing a motion to dismiss, the defendant filed a motion to compel arbitration.<a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234840672-v4-Morgan_v__Sundance_CAMT_Blog_Post.docx#_ftn4">[4]</a>  The plaintiff opposed the motion, arguing that the defendant had waived its right to arbitration by litigating for too long.<a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234840672-v4-Morgan_v__Sundance_CAMT_Blog_Post.docx#_ftn5">[5]</a>Following the lead of eight other circuits, the Eighth Circuit applied the three-element test to determine waiver because of “the strong federal policy favoring arbitration.”<a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234840672-v4-Morgan_v__Sundance_CAMT_Blog_Post.docx#_ftn6">[6]</a>  But in a surprising departure from the majority circuit rule, the Supreme Court rejected that approach, explaining that the Federal Arbitration Act does not authorize federal courts to create special, arbitration-preferring procedural rules.<a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234840672-v4-Morgan_v__Sundance_CAMT_Blog_Post.docx#_ftn7">[7]</a>Sundance is a cautionary tale for parties seeking to enforce arbitration agreements.  Without the additional hurdle of showing prejudice, plaintiffs will have a lower burden to show waiver if a defendant choses to litigate in federal court.  Moving forward, companies will need to strategically consider whether and when to pursue arbitration in order to ensure they do not engage in acts that may waive their right to arbitration later on.  If a company affirmatively litigates in federal court, arbitration likely will not be a fallback option. <a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234840672-v4-Morgan_v__Sundance_CAMT_Blog_Post.docx#_ftnref1">[1]</a> Morgan v. Sundance, Inc., No. 21-328, 2022 WL 1611788, at *4 (U.S. May 23, 2022).<a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234840672-v4-Morgan_v__Sundance_CAMT_Blog_Post.docx#_ftnref2">[2]</a> Id. at 3.<a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234840672-v4-Morgan_v__Sundance_CAMT_Blog_Post.docx#_ftnref3">[3]</a> Id. at 2.<a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234840672-v4-Morgan_v__Sundance_CAMT_Blog_Post.docx#_ftnref4">[4]</a> Id.<a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234840672-v4-Morgan_v__Sundance_CAMT_Blog_Post.docx#_ftnref5">[5]</a> Id. at 2-3.<a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234840672-v4-Morgan_v__Sundance_CAMT_Blog_Post.docx#_ftnref6">[6]</a> Id. at 3.<a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234840672-v4-Morgan_v__Sundance_CAMT_Blog_Post.docx#_ftnref7">[7]</a> Id. at 4–5.

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.

Associate

Caroline Pohl is an associate in Morrison and Foerster’s Litigation Group, where she specializes in intellectual property and complex commercial litigation.

Caroline Pohl

Caroline Pohl is an associate in the Litigation department of Morrison and Foerster’s San Diego office. Caroline earned her law degree magna cum laude from the University of California, Irvine School of Law, where she served as an Articles Editor of the UC Irvine Law Review. While in law school, Caroline and her Community & Economic Development Clinic partners successfully briefed and argued a

Caroline F. Pohl

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Choose Your Forum Wisely: Supreme Court Rejects “No Harm, No Foul” Approach to Arbitration Waiver Analysis

Healthcare, Biologics, and Severability: Will the ACA—and the BPCIA—Survive the Latest Challenge?

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Yesterday, the Supreme Court established a clear rule that a party litigating in federal court cannot later compel arbitration by arguing that there was no harm

Choose Your Forum Wisely: Supreme Court Rejects “No Harm, No Foul” Approach to Arbitration Waiver Analysis

California lawmakers are considering a bill that would limit confidentiality in cases involving allegations of defective products or environmental harms by placing restrictions on protective orders and confidentiality terms in settlement agreements.Generally, parties litigating cases alleging defective products or environmental conditions may stipulate to a protective order that governs discovery and protects the confidentiality of certain documents. Similarly, settlement agreements almost always require both parties to maintain some level of confidentiality as a condition of settlement. The ability to protect confidential information encourages early resolution, which in turn helps reduce the caseload of overburdened courts.The Public Right to Know Act (SB 1149), however, seeks to limit the parties’ ability to enter into such agreements in product liability and environmental cases in California. SB 1149, which was introduced by California State Senator Connie Leyva (D-Chino) this spring and is jointly sponsored by Consumer Reports and Public Justice, seeks to require public disclosure of factual information about an allegedly defective product or environmental condition that “has caused, or is likely to cause, significant or substantial bodily injury or illness, or death.”<a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234731187-v10-MOFO_SB_1149_Client_Alert.docx#_ftn1">[1]</a> California would join other states such as Florida and Louisiana that impose similar restrictions by statute.If passed, the bill would:<ul><li>Render provisions in settlement agreements that restrict disclosure of such factual information void and unenforceable;</li><li>Preclude courts or arbitral tribunals from entering any protective order that would seek to maintain the confidentiality of such factual information, with narrow exceptions; and</li><li>Allow any person, including a media member acting on behalf of the public, to challenge these types of confidentiality provisions so long as it is reasonably foreseeable that the restriction would affect the challenger.</li></ul>The bill provides some exceptions. A settlement provision or a protective order could still maintain confidentiality over the following:<ul><li>Settlement amount;</li><li>Medical or personal identifying information;</li><li>Citizenship or immigration status; and</li><li>Proprietary customer lists or trade secrets if the party moves the court or arbitral tribunal in good faith and demonstrates that an overriding confidentiality interest outweighs public interest in disclosure.</li></ul>The legislature recently amended SB 1149 to permit a party, including an intervenor who has become a party or a producing or testifying third party, to move for nondisclosure under the above provisions.The bill’s proponents claim to seek a balance between corporate confidentiality and promoting disclosure of evidence related to public safety. If passed, however, the bill could undermine public policy favoring early resolution and harm parties litigating these kind of cases by restricting the tools available to protect confidentiality. Protecting confidential information incentivizes parties to settle cases early. Settlements help parties avoid costly litigation and lessen burdens on courts. Without this incentive, parties would be more likely to avoid seeking early resolution and to engage in protracted litigation.Furthermore, with protective orders severely limited, discovery disputes would likely intensify, as parties defending against such allegations would seek to protect their confidential information from public inquiries.In addition, SB 1149 would place new obligations on attorneys. If passed, attorneys would have to take this legislation into account when advising clients about the scope of confidentiality permitted in settlements and in discovery. Asserting confidentiality over the underlying facts in a settlement agreement, advising a client to sign an agreement containing such a provision, or moving for a protective order that seeks to protect such information could constitute grounds for bar discipline.This bill’s passage is not a foregone conclusion. Similar legislative proposals have failed in the past, including a recent effort in 2017. If SB 1149 passes, however, parties defending in the areas of products and environmental harms could experience increased litigation costs, drawn out discovery disputes, and greater risk of exposing confidential business information.The Morrison Foerster Class Action & Mass Tort team will continue to monitor the progress of SB 1149 and provide updates as the bill proceeds through the legislature. <a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234731187-v10-MOFO_SB_1149_Client_Alert.docx#_ftnref1">[1]</a> <a href="https://legiscan.com/CA/text/SB1149/id/2520468/California-2021-SB1149-Introduced.html">SB 1149</a>.

Fertility Center Litigation

Fitbit

MicroPort

Leading Healthcare, Pharmaceutical, and Medical Device Company

Lethal Injection Matters – Major Pharmaceutical Company

Pain Pump Matters – Large Pharmaceutical Company

Major Technology Company

Leading Chemical Company

Security Device Company

In re Air Crash Near Peixoto de Azevedo, Brazil

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Erin Bosman is chair of MoFo’s Class Actions and Mass Torts Practice Group and is a founder and co-head of the Artificial Intelligence Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin M. Bosman

Erin Bosman is chair of MoFo’s Class Actions and Mass Torts Practice Group and is a founder and co-head of the Artificial Intelligence Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin Bosman

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

Julie Park provides analytic and strategic counsel for issues in product life cycle, product liability and defective products, consumer class actions, and more.

Julie Park

Julie Park | Product Liability Lawyer

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Confidentiality at Risk: California Legislature Considers Bill That Would Limit Scope of Confidentiality in Product Liability and Environmental Cases and Settlements

Confidentiality at Risk: California Legislature Considers Bill That Would Limit Scope of Confidentiality in Product Liability and Environmental Cases and Settlements

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California lawmakers are considering a bill that would limit confidentiality in cases involving allegations of defective products or environmental harms by plac

For the second year in a row, Morrison Foerster partners and associates gathered virtually and in person for Western Alliance Bank’s 4th Annual Class Action Law Forum (CALFTM), hosted in collaboration with the University of San Diego School of Law. From federal judges to top litigators to law school faculty, this hybrid event brought together a wide range of class action and mass tort practitioners to provide both students and practitioners with opportunities to interact with and learn from leading jurists and preeminent litigators. Among the notable list of speakers and panelists were Morrison Foerster’s own Erin Bosman (who also co-chaired the forum), Julie Park, William (Bill) Tarantino, Jessica Grant, Claudia Vetesi, Tiffany Cheung, and Stacy Sprenkel. Our partners shared valuable insights on key areas of class action and complex litigation, including the intersection between class actions and multidistrict litigation, special challenges in large mass tort cases, best practices for class action and mass action mediations and arbitrations, trends in settlements and notice claims, and health and wellness in the legal field. Many of the panels discussed the impact remote work has had on class action and mass tort practice, from the efficiency of virtual appearances to the positive impact remote work can have on associate development. To read more on the key takeaways from the annual CALF, read Western Alliance Bank’s <a href="https://www.westernalliancebancorporation.com/insights/2022-class-action-law-forum-highlights-driving-efficiency-post-covid">recap insights article</a>.

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, autom

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2022 Class Action Law Forum: Recap & Insights

2022 Class Action Law Forum: Recap & Insights

For the second year in a row, Morrison Foerster partners and associates gathered virtually and in person for Western Alliance Bank’s 4th Annual Class Action Law

A circuit split has emerged over faxes offering “free” goods, money, or services and whether they constitute an “unsolicited advertisement” under the Telephone Consumer Protection Act (the TCPA).In a February decision, the Second Circuit held that under the plain text of the TCPA, an unsolicited fax to doctors and nurses inviting participation in a market research survey in exchange for money did not constitute an “unsolicited advertisement” under the TCPA. Bruce Katz, M.D., P.C. v. Focus Forward LLC, 22 F.4th 368, 374 (2d Cir. 2022). The court determined that the fax was not an “unsolicited advertisement” because it did not promote the commercial availability or quality of any property, goods, or services, as prohibited by the TCPA. Id. at 372.The Second Circuit’s ruling explicitly rejected the Third Circuit’s conclusion in Fischbein v. Olson Research Group, Inc., 959 F.3d 559 (3d Cir. 2020). In that case, the Third Circuit considered a fax soliciting participation by the recipients in market research surveys in exchange for monetary payments. The court held that the fax was an “unsolicited advertisement,” reasoning that healthcare professionals have a particular need for protection from unsolicited faxes, and that “these firms are not offering compensation out of the goodness of their hearts—they do so for a commercial purpose, to increase the response rate of their surveys, i.e. they can buy more of what they desire.” Id. at 564. The Katz court explicitly disagreed with that argument, opining that “[t]he notion that such faxes might advertise the availability of a ‘service’—i.e., of the recipient’s participation in a survey—contorts the ordinary meaning of the statute too far.” Katz, 22 F.4th 368 at 373.While no other circuit court has weighed in on this split, two Fourth Circuit district courts quickly followed the Second Circuit’s lead. The District of Maryland held that a faxed invitation to a “Monthly Webinar Series,” which also provided a link to win an Amazon gift card by completing a webinar survey, “d[id] not advertise the availability of a good or service, but merely the opportunity to exchange goods or services.” Family Health Physical Medicine, LLC v. Pulse8, LLC, No. SAG-21-2095, 2022 WL 596475, *6 (D.Md. Feb. 28, 2022). And in Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, the Southern District of West Virginia found that a fax offering a “free” eBook did not constitute an advertisement. No. 3:15-14887, 2022 WL 386097, *5 (S.D.W.Va. Feb. 8, 2022), appeal filed, No. 22-1279 (4th Cir. Mar 15, 2022). With the Carlton decision on appeal in the Fourth Circuit, we may soon see another federal appellate court weigh in on this circuit split.We will update this post as more circuits weigh in on this issue.

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The Praxis of Faxes: Circuits Split on the Meaning of “Advertisement” Under the TCPA

The Praxis of Faxes: Circuits Split on the Meaning of “Advertisement” Under the TCPA

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A circuit split has emerged over faxes offering “free” goods, money, or services and whether they constitute an “unsolicited advertisement” under the Telephone 

David Fioccola, Adam Hunt, and Lily Westergaard authored an article for Pratt's Privacy & Cybersecurity Law Report reviewing recent decisions on the Telephone Consumer Protection Act (TCPA)."Last year marked another year of important developments in the Telephone Consumer Protection Act (“TCPA”) landscape as lower courts issued conflicting interpretations of the ruling by the Supreme Court of the United States (“SCOTUS”) in Barr v. AAPC  (“AAPC”) and began to apply the definition of “autodialer” that SCOTUS articulated in Facebook, Inc. v. Duguid. Although defendants swung for the fences in an attempt to argue that AAPC rendered the entirety of the TCPA unenforceable for a five-year period and had some initial success, the tide seems to be turning. Similarly, although Duguid provided a narrow definition of an “autodialer,” factual disputes about what satisfies that new definition may still need to be resolved on summary judgment."Read the <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt9bcf813070fdf0ad/627315fadeee7329767e7644/220422-tcpa-litigation-review-update.pdf" target="_blank">full article</a>.

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TCPA Litigation Review and Update

Privacy Litigation 2021 Year in Review: TCPA Litigation

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David Fioccola, Adam Hunt, and Lily Westergaard authored an article for Pratt's Privacy & Cybersecurity Law Report reviewing recent decisions on the Telephone C

TCPA Litigation Review and Update

In a recent win for vaccine manufacturers, a district court found that federal law preempted claims against Merck, arising out of alleged injuries from the Gardasil vaccine. Herlth v. Merck & Co., Inc., No. 3:21-cv-438 (JAM), 2022 WL 788669 (D. Conn., Mar. 15, 2022). This ruling shows that plaintiffs making vague allegations of injury will not satisfy Iqbal and Twombly.BackgroundApproved by the Food and Drug Administration (“FDA”) in 2006, Merck’s Gardasil vaccine helps protect individuals against human papillomavirus infection, a viral infection associated with cervical cancer. With her mother’s consent, the plaintiff in Herlth received the first two doses of the vaccine at the age of 15. The plaintiff allegedly experienced side effects. She was diagnosed with various disorders, including chronic fatigue syndrome and postural orthostatic tachycardia syndrome, a condition that affects the body’s ability to adjust the heart rate and regulate blood flow. The plaintiff filed a petition for compensation in the “Vaccine Court” (i.e., the Office of the Special Masters of the U.S. Court of Federal Claims)—a prerequisite for bringing a civil action. Only after receiving an unfavorable outcome at the Vaccine Court may an individual sue the manufacturer. Here, the Vaccine Court dismissed the plaintiff’s claim for insufficient proof. The plaintiff then sued in federal court, alleging state law failure to warn, manufacturing defect, negligence, and common law fraud claims. The crux of the plaintiff’s complaint was her failure to warn claim. She alleged that her mother believed the vaccine was safe based on Gardasil television advertisements and other marketing material.The District Court’s DecisionIn granting Merck’s motion to dismiss, the court concluded that all claims were either preempted or inadequately pled. Federal law preempted the failure to warn claim, the plaintiff failed to plausibly plead a manufacturing defect, the plaintiff failed to plead fraud with particularity, and federal law preempted the fraud on the FDA claim.With respect to the failure to warn claim, the court held that the Food, Drug, and Cosmetic Act (“FDCA”) preempts a state law failure to warn claim against a drug manufacturer. FDA approves the text of vaccine labels. Manufacturers may change the label only with FDA approval, unless the changes reflect “newly acquired information” about warnings or adverse reactions, among other things. 21 CFR §601.12(f)(2)(i). A unilateral label change requires reasonable evidence of a causal link between the newly acquired information and the adverse reaction at issue. 21 CFR §201.57(c)(6)(i). Under this standard, the plaintiff had to sufficiently plead that Merck had newly acquired information (i.e., information received after the FDA’s approval of Gardasil) related to the plaintiff’s alleged injuries that justified a label change.Here, the plaintiff failed to meet her burden. She relied on conclusory allegations about risks of Gardasil that bore no concrete relationship to her alleged injuries. Her complaint also referred to scientific studies and news articles linking Gardasil to her alleged injuries without explaining how the studies supported her allegations. Even worse, many of the studies were published well after the plaintiff received her vaccine. Merck could not have relied on them to effect a label change before the plaintiff was allegedly injured.The court also rejected the plaintiff’s argument that drug labeling preemption principles apply only to design defect claims and not failure to warn claims. The plaintiff based this argument on the Vaccine Act’s express preemption of state law design defect claims against vaccine manufacturers. In rejecting this argument, the court reasoned that Congress did not intend to make it more difficult to bring design defect claims, while also, opening the “floodgates” for failure to warn claims. The court thus found that the Vaccine Act preempts both state law design defect and failure to warn claims.As to the manufacturing defect claim, the court found that the design defect claim was in fact a “dressed up” manufacturing defect claim; the plaintiff did not allege a mistake or flaw in the manufacturing process.The rest of the plaintiff’s claims failed for similar reasons. Under her negligence claim, the plaintiff lumped together various disparate theories that sounded in fraud, which requires a heightened pleading standard. The plaintiff failed to meet her burden. For instance, the plaintiff’s references to Merck’s advertisements merely described the advertisements. She did not point to specific statements in the advertisements made with knowing falsity.Finally, even if the plaintiff could have satisfied pleading standards for her fraud on the FDA claim, Buckman preemption applied, barring state law claims alleging fraud on the FDA. See Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 348 (2001). As the court noted, the Second Circuit further clarified that the FDCA preempts state tort law claims only when the cause of action assigns liability “solely on the basis” of fraud against the FDA. Desiano v. Warner-Lambert & Co., 467 F.3d 85, 98 (2d Cir. 2006). Since the plaintiff sought to assign liability “solely on the basis” of purported fraud against the FDA, the FDCA preempted her fraud on the FDA claim.TakeawaysThis ruling is one of the first major vaccine preemption decisions since FDA authorized the COVID-19 vaccines, which spurred much public attention and discussion around vaccines. Herlth makes clear that there is a high bar for successfully pleading vaccine products liability claims. Under Twombly and Iqbal, showing that a vaccine manufacturer acquired new information regarding possible side effects requires more than vague and conclusory allegations.

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Pleading and Preemption: Immunization Against Vaccine Products Liability Claims

Pleading and Preemption: Immunization Against Vaccine Products Liability Claims

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In a recent win for vaccine manufacturers, a district court found that federal law preempted claims against Merck, arising out of alleged injuries from the Gard

The Tenth Circuit recently held that the Federal Meat Inspection Act (FMIA) gets the final word on what “Product of the U.S.A.” means for labels of beef products. Thornton v. Tyson Foods, Inc., No. 20-2124, 2022 WL 727628 (10th Cir. Mar. 11, 2022). The court based its decision on federal preemption, finding that the express preemption provision of FMIA preempted plaintiffs’ deceptive labeling claims under state law.Case background. Since 2015, defendants including Tyson Foods, Inc. have imported live cattle from other countries, slaughtered and processed the cattle in the United States, and then labeled the resulting beef products as “Products of the USA.” Already-slaughtered beef imported into the country also gets the same label. Plaintiffs, a rancher and a consumer, both argued in their complaints that this practice is misleading, fraudulent, and deceptive under New Mexico law.At issue is the FMIA, which permits labels that are “not false or misleading” and that the Food Safety Inspection Service (FSIS), an agency of the USDA, has approved. The FSIS has a Policy Book that defines “Product of the U.S.A.” as products that “at a minimum, have been prepared in the United States,” with no requirement that the animals be born or prepared in the United States. The FSIS approved defendants’ beef labels here.Both the consumer’s and the rancher’s cases were removed to federal court, and the district court granted defendants’ motions to dismiss, concluding that federal preemption barred all of plaintiffs’ state law claims. The district court further concluded that, either way, plaintiffs had failed to state a claim under any of their theories of liability. Plaintiffs appealed the ruling to the Tenth Circuit.Federal law and express preemption trump. The Tenth Circuit considered analysis of the beef labels under federal law. The court found it “undisputed” that the FSIS approved defendants’ labels “in line with the currently applicable and permissive regulatory framework and meaning of ‘Product of the U.S.A.’” Furthermore, the court found that, because the FSIS approved the beef labels, this approval was a determination that they were not “false or misleading” under the FMIA.Next, the court evaluated the FMIA’s express preemption provision, which prohibits states from imposing any labeling requirements for meat products that are “in addition to, or different than” the federal requirements. The Tenth Circuit concluded that, because FSIS approval was a determination under federal law, the FMIA’s express preemption provision prohibited any additional arguments under state law.In dissent, Judge Lucero argued the FMIA set separate, dual requirements—one, for the labels not to be misleading, and two, for the FSIS to approve those labels—and disagreed with the majority’s interpretation that FSIS approval automatically cleared the misleading hurdle under federal law.State’s concurrent jurisdiction did not change analysis. Plaintiffs also relied on the FMIA’s concurrent jurisdiction provision, which allows states to exercise concurrent jurisdiction regarding labeling requirements, so long as state requirements are “consistent with” the FMIA. This provision, plaintiffs argued, should mean they could still make an argument under New Mexico law. Judge Lucero’s dissenting opinion agreed, as he thought whether the labels were misleading was an open question that should allow plaintiffs to make arguments under state law.But the court found that this argument, too, was “doomed by the FSIS’s preapproval.” The majority reiterated that “plaintiffs’ concurrent-jurisdiction argument ignores the critical feature of this case”: that defendants’ products were not misbranded under federal law, so there was no open question. An analysis under state law would impose an additional requirement to what federal law calls for. Where federal preemption applies, additional state law analysis is barred.The court pointed to a recent Ninth Circuit decision, Webb v. Trader Joe’s Co., 999 F.3d 1196 (9th Cir. 2021), in which the court found that federal approval of labels for poultry products preempted plaintiff’s attempt to impose additional requirements for those labels under state law. The court also cited a number of district court decisions and concluded the consensus favored its interpretation that additional analysis under state law is preempted by the FMIA for the beef labels in this case. Key takeaways. The Tenth Circuit’s decision is a win for defendants. The Tenth Circuit’s determination that federal preemption prohibits additional requirements under state law for beef product labels should prove helpful for defendants facing class actions claims, who seek to limit plaintiffs’ arguments about other federally regulated products. Preemption is a topic that comes up frequently in disputes involving regulated industries like food and food labeling. Given the rise of food litigation in recent years, it is likely to continue to be an issue that parties should be prepared to confront until the cows come home.

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Till the Cows Come Home: Tenth Circuit’s Affirmation of Federal Preemption Is a Win for Defendants in Food Labeling Cases

Till the Cows Come Home: Tenth Circuit’s Affirmation of Federal Preemption Is a Win for Defendants in Food Labeling Cases