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

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

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

<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

Zak is an associate in the Litigation Department in Morrison Foerster’s New York office.Zak’s practice focuses on class actions, commercial litigation, white collar defense, government investigations, and antitrust litigation and counseling. He has represented clients before federal and state courts in complex commercial matters, as well as in arbitration tribunals.Zak received his J.D. from New York University School of Law in 2018, where he was inducted into the Order of the Barristers. During law school, Zak also served as the Marden executive editor for the NYU Law Moot Court Board. In 2013, Zak received his B.A. and M.A. in political science from Yale University, receiving honors in his major and the Ellsworth Prize for Best Senior Essay in the Social Sciences.

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Associate

Zak Newman

Mitchell A. Hokanson is an associate in the Litigation Department of Morrison Foerster’s San Diego office.Mitchell’s practice focuses on commercial litigation and consumer class actions. He has extensive experience with civil litigation, including managing day-to-day strategy, propounding and responding to discovery, taking and defending depositions, and engaging in motion practice. He also has experience providing regulatory advice to clients, including pro bono partners and multinational corporations. Mitchell maintains an active pro bono practice.After law school, Mitchell worked as a judicial clerk for Justice Susan M. Carney of the Alaska Supreme Court, where he drafted bench memoranda and opinions on a wide range of state and federal law topics. Prior to joining MoFo, Mitchell worked for another international law firm, where he was a member of the Complex Civil Litigation practice group, in Los Angeles, California.Mitchell received his J.D. from Columbia Law School, where he was honored as a James Kent Scholar and Harlan Fiske Stone Scholar. While in law school he was the senior executive editor of the Columbia Journal of Environmental Law and worked as a judicial intern for Judge Sandra S. Ikuta of the United States Court of Appeals for the Ninth Circuit and Judge George B. Daniels of the United States District Court, Southern District of New York. Prior to that, Mitchell earned his B.A. from Stanford University.

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Mitchell Hokanson

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FDA Seeks to Phase Out Synthetic Color Additives

Client Alert: Jury Returns Verdict in “Manufactured in the USA” False Advertising Case

ICPHSO 2025: CPSC at ICPHSO

ICPHSO 2025: State Regulation in Response to Trump’s Push for Federal Deregulation

Everyone Please Stand: Supreme Court to Consider Standing Requirements for Class Actions, With the Potential to Resolve Long-standing Multi-circuit Split.

A recent case in the Northern District of California addresses the use of testing in a false advertising case at the pleading stage, and how specific plaintiffs must be when discussing test results in a complaint.  In Mack v. Edgewell Personal Care Company, the Court held that cursory allegations regarding testing may be insufficient to survive a motion to dismiss, and that specific factual allegations that explain the test results presented and plaintiff’s interpretation of those results are required to meet the plausibility requirement.Case Background:A group of plaintiffs sued Edgewell Personal Care Company (“Edgewell”) alleging that Edgewell’s statements about two of its tampon products were false and misleading.  Edgewell made various claims on its packaging, such as “100% Organic Cotton” and “free from colors, dyes, and BPA.”  Plaintiffs alleged these statements were false and misleading because the products contain polyfluoroalkyl substances (“PFAS”).The Testing Presented:In support of their allegations, plaintiffs referenced “independent, third-party” testing (which they did not attach), the results of which they alleged showed that Edgewell’s products contained PFAS.  Plaintiffs stated that their testing utilized total organic fluorine (TOF) analysis.  Plaintiffs also alleged that “[o]rganic fluorine is a surrogate or proxy for PFAS chemicals” and that “its presence is indicative that a sample contains PFAS.”  Plaintiffs further alleged that organic fluorine analysis is widely accepted and that “the state of California uses [it] to measure PFAS in its regulation of consumer products.”  According to plaintiffs, their testing showed that Edgewell’s tampon products contain PFAS.  The Complaint did not contain any other information about the testing, including how it was done, or why it showed that Edgewell’s products contained PFAS.The Court’s Holding:In its motion to dismiss, Edgewell argued (among other things) that plaintiffs did not plausibly allege that the products contained PFAS, despite their reference to third-party testing.  Judge Martínez-Olguín agreed with defendants and granted their motion to dismiss.  In so doing, the Court deemed the test results “cursory” and stated that they provided “no specificity as to the results reached or any other findings that would support plaintiffs’ interpretation of those results.”  The Court further held that the allegations required more factual content to “nudge Plaintiffs’ claims, based on the theory that Edgewell’s tampons contain PFAS, from possible to plausible.”  Specifically, plaintiffs excluded “whether the organic fluorine may be indicative of natural sources or is largely, if not exclusively, linked to forever chemicals” or “whether the presence or absence of any other substance might bolster Plaintiffs’ interpretation of their testing’s findings.”In so reasoning, Judge Martínez-Olguín distinguished Warren v. Whole Foods Market California, Inc., where plaintiffs’ test results survived a motion to dismiss.[1]  In Warren, plaintiffs alleged that Whole Foods falsely advertised a coffee creamer as “naturally flavored,” even though plaintiffs believed it contained artificial vanilla flavoring substances.  To support their claim that the creamer contained artificial flavoring, plaintiffs presented test results that they alleged showed the creamer contained artificial flavoring.  Judge Edward M. Chen of the Northern District of California ruled that plaintiffs’ testing showed the presence of artificial flavoring was probable and therefore denied dismissal.  “Plaintiffs offer more than a bare conclusory allegation that the Product contains ethyl vanillin; they support their allegation that the Product contains high levels of artificial flavoring with a photocopy of a test result . . . showing ethyl vanillin at a concentration of 2.205 parts per million.”The difference in what plaintiffs presented in Edgewell and in Warren is stark.  In Edgewell, plaintiffs merely provided conclusory allegations that their testing showed PFAS in Edgewell’s products.  In Warren, plaintiffs attached the test results to their complaint and explained the methodology used to reach their conclusion.  These cases suggest that the Northern District of California is requiring more specificity when plaintiffs present test results in their Complaints.  Edgewell may also signal a shift in false advertising cases to a more stringent view of what suffices to meet the plausibility requirement.What This Means for False Advertising CasesEdgewell highlights the specificity required to withstand a motion to dismiss when a plaintiff uses test results to bolster the allegations in their Complaint.  Judge Martínez-Olguín’s ruling shows that it is not enough to allege that tests were conducted and that those tests support plaintiff’s position.  Rather, courts will look to see whether plaintiffs include specific factual allegations regarding the methodology used in their testing and a discussion of why the findings support plaintiffs’ claims.Morrison Foerster will continue to monitor the impact of this ruling and is available to provide legal guidance to clients on the ramifications of this decision.[1] Warren v. Whole Foods Mkt. California, Inc., No. 21-CV-04577-EMC, 2022 WL 2644103 (N.D. Cal. July 8, 2022).

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

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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 mat

Claudia Vetesi

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

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Lena is an associate in the Litigation Department in Morrison Foerster’s San Francisco office. Lena’s practice focuses on commercial and class actions litigation, with an emphasis on false advertising, unfair competition, and antitrust. Lena regularly counsels clients in the food and beverage, dietary supplement, cosmetics, retail, and technology sectors.











Lena Gankin

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Mamie Tabet is an associate in the Litigation Department of Morrison Foerster’s San Francisco office.

Mamie Tabet

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A recent case in the Northern District of California addresses the use of testing in a false advertising case at the pleading stage, and how specific plaintiffs must be when discussing test results in a complaint.  In Mack v. Edgewell Personal Care Company, the Court held that cursory allegations regarding testing may be insufficient to survive a motion to dismiss, and that specific factual allegations that explain the test results presented and plaintiff’s interpretation of those results are required to meet the plausibility requirement.

Testing Plaintiff’s Test Results: What Specificity Is Required at the Pleading Stage in False Advertising Cases?

On January 25, 2024, Representative Jan Schakowsky (D-IL) introduced the Consumer Advocacy and Protection (CAP) Act, which would amend the Consumer Product Safety Act (CPSA) to increase the maximum civil penalty for a single violation of the CPSA from $100,000 to $250,000 and remove the $17,150,000 inflation-adjusted maximum cap for a series of violations. The legislation would also allow the Consumer Product Safety Commission (CPSC) to adjust the $250,000 per violation civil penalty for inflation each year, rather than every five years as allowed under the current CPSA. If enacted, the CAP Act would significantly impact how consumer product companies approach compliance with the CPSA.This bill follows CPSC’s recent increased and aggressive enforcement efforts. In recent years, CPSC has heightened the pressure on consumer product companies by using the different enforcement mechanisms in its toolbox—the number of recalls, unilateral press releases, and civil penalty amounts have all significantly increased in the last three years. Commissioner Richard Trumka summed up CPSC’s new attitude in a <a href="https://www.cpsc.gov/About-CPSC/Commissioner/Richard-Trumka/Statement/CPSC-Secures-158-Million-Penalty-Against-Generac-for-Failing-to-Timely-Disclose-Amputation-Hazard-Posed-by-Portable-Generators" target="_blank">May 5, 2023 statement</a> in support of a civil penalty settlement, explaining, “This Commission will use every tool at its disposal to stop bad actors from harming consumers, including maximum civil penalties and, where warranted, criminal referrals.”At the same time, CPSC Commissioners and consumer advocacy groups have been calling on Congress to increase the civil penalty maximum and provide CPSC with additional enforcement tools. For example, since Commissioner Mary Boyle was confirmed in June 2022, she has repeatedly urged Congress “to significantly increase CPSC’s penalty authority.”[1] It is her <a href="https://www.cpsc.gov/About-CPSC/Commissioner/Mary-T-Boyle/Statement/Commissioner-Mary-T-Boyle-Statement-on-HSNs-Agreement-to-Pay-160-Million-Civil-Penalty" target="_blank">position</a> that businesses “may consider the current penalty regime merely a cost of doing business” and increased maximum penalties are needed to “penalize bad actors and to incentivize companies of all sizes to make consumer safety a top priority.” Consumer product safety advocacy groups like Kids in Danger, Consumer Federation of America, and the <a href="https://pirg.org/edfund/articles/former-home-shopping-network-faces-penalty-for-not-reporting-injuries-from-defective-steamers/" target="_blank">U.S. Public Interest Research Group</a>, which have all endorsed the CAP Act, have echoed Commissioner Boyle’s sentiments.Representative Schakowsky, one of the CAP Act’s co-sponsors, frequently spearheads consumer product safety legislation and measures in Congress. In 2021, she introduced the Sunshine in Product Safety Act, which would broaden one of CPSC’s enforcement mechanisms by repealing Section 6(b) of the CPSA. Section 6(b) requires CPSC to provide companies with an opportunity to comment before CPSC makes public statements about them. This includes unilateral press releases that CPSC intends to publish. Companies have no authority to block a unilateral press release unless it contains materially inaccurate information, but Representative Schakowsky and other critics claim it delays and restricts CPSC’s authority to promptly and effectively warn the public about product safety hazards. She reintroduced the bill in 2023 but has failed to garner the necessary support to push it through Congress.If the failed Sunshine in Product Safety Act is any sign, then the CAP Act faces an uphill battle in Congress. But even if it is not enacted, the CAP Act reflects CPSC’s demonstrated commitment to increasing enforcement of reporting obligations, highlighting the importance of understanding and complying with consumer product safety laws and regulations. Consumer product companies need to have a plan in place to evaluate and respond to information that may trigger their reporting obligations. They must also ensure they are taking a thoughtful and measured approach to compliance. Morrison Foerster’s Product Life Cycle group helps companies navigate the evolving enforcement landscape to find business-friendly compliance solutions.[1] Press Release, <a href="https://www.cpsc.gov/About-CPSC/Commissioner/Mary-T-Boyle/Statement/Commissioner-Mary-T-Boyle-Statement-on-HSNs-Agreement-to-Pay-160-Million-Civil-Penalty">Commissioner Mary T. Boyle Statement on HSN’s Agreement to Pay $16.0 Million Civil Penalty</a> (Nov. 8, 2023). See also Press Release, <a href="https://www.cpsc.gov/About-CPSC/Commissioner/Mary-T-Boyle/Statement/Commissioner-Mary-T-Boyle-Statement-on-BJ%E2%80%99s-Agreement-to-Pay-90-Million-Civil-Penalty" target="_blank">Commissioner Mary T. Boyle Statement on BJ’s Agreement to Pay $9.0 Million Civil Penalty</a> (Sept. 29, 2023) (“To penalize bad actors and to incentivize companies of all sizes to make consumer safety a top priority, I am urging Congress to significantly increase CPSC’s penalty authority.”); Press Release, <a href="https://www.cpsc.gov/About-CPSC/Commissioner/Mary-T-Boyle/Statement/Commissioner-Mary-T-Boyle-Statement-on-Whirlpool-Corporation-Agreement-to-Pay-115-Million-Civil-Penalty" target="_blank">Commissioner Mary T. Boyle Statement on Whirlpool Corporation Agreement to Pay $11.5 Million Civil Penalty</a> (Aug. 24, 2023).

Proposed Bill Seeks to Remove Cap on Civil Penalties Issued by 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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Co-Chair, Litigation Department

Erin Bosman is the global co-chair of Morrison Foerster’s litigation department. Erin is also the founder and co-head of the Artificial Intelligence group and former chair of the Complex Litigation + Advisement practice 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 the Global Co-Chair of Morrison Foerster’s Litigation Department. Erin is also the founder and co-head of the Artificial Intelligence Group and former chair of the Complex Litigation + Advisement Practice 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

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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

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

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Matt is an associate in the Litigation Department in MoFo’s San Diego office. Matt’s practice focuses on the product lifecycle, from early product development to litigation to end-of-life advisement. He counsels clients through complex consumer product safety regulatory landscapes and product recalls.











Matt Robinson