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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Software Gains New Status as a Product Under Strict Liability Law

MAHA Commission Publishes Report to Highlight Childhood Chronic Disease Drivers

Tenth Circuit Denies Challenge to CPSC Rule Regulating High-Powered Magnets

Ousted CPSC Democrats Fight Back Against President Trump

Setting Consumer Standards for Lithium-Ion Batteries Act

In a recent 5-4 decision reversing the Ninth Circuit and settling a circuit split, the Supreme Court of the United States in Coinbase v. Bielski held that a district court must stay its proceedings while an interlocutory appeal on the question of arbitrability is ongoing.The Court’s decision reflects the majority view of the Circuit split, where courts granted the stays automatically, while the Ninth Circuit was one of three circuit courts that left the decision of the stay to the discretion of the district judge or court of appeals.Calling it a “common sense” decision, the Justices noted that if a district court could move forward with pre-trial and trial proceedings while the appeal on arbitrability was ongoing, the continuation of proceedings in the district court largely defeated the point of the appeal.Read the <a href="https://www.mofo.com/resources/insights/230801-coinbase-v-bielski-scotus-authorizes-automatic-stays" target="_blank">full client alert</a>.

Katie Viggiani is co-chair of Morrison Foerster’s Complex Litigation + Advisement practice group and a partner in the firm’s New York office. She specializes in the defense of complex commercial disputes and consumer class actions and privacy litigation.

Katie Viggiani is co-chair of Morrison Foerster’s Complex Litigation + Advisement practice group and a partner in the firm’s New York office. 

Katie Viggiani

Katie Viggiani is a partner in the Litigation Department in Morrison Foerster’s New York office. Her practice focuses on investigations, white collar defense and commercial litigation

Katie L. Viggiani

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High Court Orders Rethink Of $9.7M Award After TransUnion

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In a recent 5-4 decision reversing the Ninth Circuit and settling a circuit split, the Supreme Court of the United States in Coinbase v. Bielski held that a district court must stay its proceedings while an interlocutory appeal on the question of arbitrability is ongoing.

Coinbase v. Bielski – SCOTUS Authorizes Automatic Stays Pending Decision of Arbitrability

As more organizations collect data to enhance their products or services, privacy is in the forefront of everyone’s minds, earning it a place in the class action spotlight. At the 2023 Class Action Law Forum, the Honorable Vince Chhabria (Northern District of California), Jean Martin (Morgan & Morgan), Andre Mura (Gibbs Law Group), and Purvi G. Patel (Morrison Foerster) gathered to discuss the rise of privacy class actions. San Diego Federal Bar Association Immediate Past President Dylan Aste (U.S. Attorney’s Office) moderated the panel. To stay ahead of privacy class actions, companies should regularly assess their data collection policies and practices. Companies are increasingly focused on balancing the need for personalized services with consumers’ privacy interests. As Purvi, managing partner of MoFo’s Los Angeles office, explained, it is convenient and valuable for a consumer when they open a food delivery app to see exactly what they most recently ordered from the restaurant they have selected. To order the same item, with any customizations, all they have to do is click on the “recently ordered” item. That same prior order information could also help consumers avoid re-ordering something they did not enjoy. However, companies cannot provide that convenience and personalization without collecting and storing data. Purvi explained that, even if the intent behind a data collection policy or procedure is to benefit the consumer, companies should regularly assess how the practice might appear to a consumer or potential litigant.  Businesses, large and small, may end up the targets of privacy class actions even when their data collection benefits consumers. These class actions, at times, target core business functions, potentially impacting the company’s business model. Toeing the line between how much data to collect and what consumers view as “acceptable” data collection can be tricky. As a result, it is important for businesses to approach data privacy practices in a holistic manner, including data collection, use, and retention as well as related disclosures. Stepping into the shoes of consumers and potential litigants from the outset can proactively mitigate risk and help prevent future litigation.

Lauren N. Margolies is an associate in the Litigation Department of Morrison Foerster’s New York Office.

Lauren Margolies

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2023 Class Action Law Forum Recap: Privacy Class Actions Panel

2022 Class Action Law Forum: Recap & Insights

As more organizations collect data to enhance their products or services, privacy is in the forefront of everyone’s minds, earning it a place in the class action spotlight. At the 2023 Class Action Law Forum, the Honorable Vince Chhabria (Northern District of California), Jean Martin (Morgan & Morgan), Andre Mura (Gibbs Law Group), and Purvi G. Patel (Morrison Foerster) gathered to discuss the rise of privacy class actions. San Diego Federal Bar Association Immediate Past President Dylan Aste (U.S. Attorney’s Office) moderated the panel. 


2023 Class Action Law Forum Recap: Privacy Class Actions Panel

A key contested issue in data breach class actions is whether plaintiffs can satisfy Article III’s injury-in-fact requirement by alleging risk of future harm rather than actual misuse of plaintiffs’ personal information. As the number of data breach class actions filed continues to rise, a promising ruling by the Supreme Court seemed poised to resolve appellate courts’ diverging rulings on this issue. Almost two years later, though, the circuit split persists. We discuss that split and a few emerging trends in the full alert linked below.Read the full <a href="https://www.mofo.com/resources/insights/230405-no-injury-no-data-breach-claims-recent-trends?utm_source=publication&utm_medium=email" target="_blank">client alert</a>.

No Injury, No Data Breach Claims? Recent Trends in Evaluating Standing in Data Breach Class Actions

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No Injury, No Data Breach Claims? Recent Trends in Evaluating Standing in Data Breach Class Actions

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A key contested issue in data breach class actions is whether plaintiffs can satisfy Article III’s injury-in-fact requirement by alleging risk of future harm rather than actual misuse of plaintiffs’ personal information.

A recent putative class action case against luxury brand Christian Dior sheds light on the health care exemption in the Illinois Biometric Privacy Act (BIPA). In Delma Warmack-Stillwell v. Christian Dior Inc., the plaintiff alleged Dior’s virtual try-on feature for sunglasses violated BIPA’s requirements to (1) provide notice and obtain informed consent before collecting an individual’s biometric data; (2) have a written retention and deletion policy for biometric data; and (3) not sell, lease, trade, or otherwise profit from an individual’s biometric data. The Northern District of Illinois dismissed the case, finding that the feature fell within BIPA’s health care exemption.Read the full <a href="https://www.mofo.com/resources/insights/230403-applying-bipas-health-care-exemption?utm_source=publication&utm_medium=email" target="_blank">client alert</a>.

Applying BIPA’s Health Care Exemption to Virtual Try-On Technologies in Light of Dior Dismissal

Melissa Crespo helps clients navigate a wide range of challenging privacy compliance and data security matters with a focus on the health information and the health care sector.

Melissa M. Crespo

Melissa Crespo

Applying BIPA’s Health Care Exemption to Virtual Try-On Technologies in Light of Dior Dismissal

A recent putative class action case against luxury brand Christian Dior sheds light on the health care exemption in the Illinois Biometric Privacy Act (BIPA).

In the final installment of our Privacy Litigation Year in Review series, we focus on important developments in TCPA litigation. Following the Supreme Court’s adoption of a narrow definition of “autodialers” (ATDS) in the 2021 case Facebook v. Duguid, courts across the country have continued to interpret that seminal decision. While the full impact of Duguid remains to be seen, guidance from several federal courts of appeals has begun to emerge regarding what systems actually qualify as autodialers, providing more certainty and predictability for businesses engaged in telephone and text marketing campaigns.Read our <a href="https://www.mofo.com/resources/insights/230209-privacy-litigation-2022-year-in-review-tcpa-litigation?utm_source=publication&utm_medium=email" target="_blank">client alert</a>.

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.

Tiffani B. Figueroa is a partner in the Litigation Department and is based in Morrison Foerster’s New York office. Her practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Tiffani B. Figueroa

Tiffani Figueroa

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Privacy Litigation 2022 Year in Review: TCPA Litigation

Privacy Litigation 2020 Year in Review: Data Breach Litigation

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In the final installment of our Privacy Litigation Year in Review series, we focus on important developments in TCPA litigation. Following the Supreme Court’s adoption of a narrow definition of “autodialers” (ATDS) in the 2021 case Facebook v. Duguid, courts across the country have continued to interpret that seminal decision. 

Privacy Litigation 2022 Year in Review: TCPA Litigation

In part four of our Privacy Litigation Year in Review series, we discuss courts’ continuing efforts to construe the private right of action provision in the California Consumer Privacy Act. Last year, we noted that plaintiffs were trying to stretch the CCPA’s private right of action, something courts began to halt in 2022. This year, we highlight key decisions construing the CCPA’s private right of action provision, review what the California Attorney General has been doing to enforce the CCPA, and look forward to what’s to come in 2023, as the new California Privacy Rights Act supplants the CCPA.Read our <a href="https://www.mofo.com/resources/insights/230201-ccpa-litigation-enforcement" target="_self">client alert</a>.

Privacy Litigation 2022 Year in Review: CCPA Litigation & Enforcement

Purvi G. Patel is the former managing partner of the Los Angeles Office. She represents retail, e-commerce, and other businesses in significant advertising, unfair competition, consumer fraud, and privacy matters.

Purvi G. Patel is the former managing partner of the Los Angeles Office. She represents retail, e-commerce, and other businesses in significant advertising, unfair competition, consumer fraud, and privacy 

Purvi G. Patel

Purvi G. Patel defends retail, e-commerce, and other businesses in significant advertising, unfair competition, consumer fraud, and privacy matters. She has built a robust practice defending household names in complex and class action litigation in federal and state courts across the country, winning motions to dismiss, defeating class certification, and securing summary disposition in several multi-million dollar lawsuits. Purvi is a strategic and practical thinker who is in tune with her clients’ priorities, which leads to successful outcomes both inside and outside the courthouse.

Purvi Patel

Dillon Kraus is an associate in Morrison Foerster’s Privacy + Data Security, Investigations + White Collar Defense, and Commercial Litigation + Trial groups and is based in the firm’s New York office.

Dillon Kraus

Privacy Litigation 2022 Year in Review: CCPA Litigation & Enforcement

In part four of our Privacy Litigation Year in Review series, we discuss courts’ continuing efforts to construe the private right of action provision in the California Consumer Privacy Act

022 was another record-setting year for data breach class actions. Here’s our take on the key developments and trends we have seen over the past year, as well as what we should watch for in 2023.We count 43 major data breach class actions filed this past year, treating multiple cases filed against a single defendant as one major class action. <a href="#_ftn1" target="_self" id="_ftnref1">[1]</a> This continues the upward trend, from 25 in 2020 to 36 in 2021, even though we have narrowed our definition of major cases each year. Of the new cases, four are subject to MDL proceedings, 30 are consolidated or have pending motions to consolidate, and nine are proceeding as individual actions.Read our <a href="https://www.mofo.com/resources/insights/230125-year-in-review-data-breach-litigation?utm_source=publication&utm_medium=email" target="_blank">client alert</a>. <a href="#_ftnref1" target="_self" id="_ftn1">[1]</a> In gathering cases, we defined major data breach litigation as cases in which: 1) the breach impacted at least 200,000 individuals; and 2) multiple actions were filed regarding the same incident. This is a more limited definition than we used in our 2021 year-in-review, when we counted all cases in which multiple actions were filed.

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Matt Wyatt is an associate in the Litigation Department of Morrison Foerster’s Los Angeles office.
Prior to joining Morrison & Foerster, Matt was a summer associate in the Los Angeles office. He ear

Matt Wyatt

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Privacy Litigation 2022 Year in Review: Data Breach Litigation

FTC & Privacy: Will the FTC's Rulemaking Push Result in New Privacy Rules?

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2022 was another record-setting year for data breach class actions. Here’s our take on the key developments and trends we have seen over the past year, as well as what we should watch for in 2023.

Privacy Litigation 2022 Year in Review: Data Breach Litigation

Second in our Privacy Litigation Year in Review series is an overview of cases under Illinois’s Biometric Information Privacy Act (BIPA).In 2022, Illinois’s Biometric Information Privacy Act (BIPA) litigation was bustling. Defendants in BIPA cases ranged from pharmacies, insurance companies, and social media platforms to software companies, schools, and airlines. Even with the steady stream of opinions in 2022, key questions about BIPA’s scope remain open for future interpretation.Read our <a href="https://www.mofo.com/resources/insights/230118-privacy-litigation-2022-year-in-review?utm_source=publication&utm_medium=email">client alert</a>.