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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The Future of Food: Exploring the World of Cell-Cultivated Cuisine

New California Law Redefines E-Bikes

ICPHSO 2025: Reese’s Law and Corded Blinds

So Long, CPSC?

FDA Seeks to Phase Out Synthetic Color Additives

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>.

Wiretap Act Class Action for Technology Company

BIPA Class Action for Social Media App

RICO and Fraud Class Action for Waste Management Company 

Copyright Class Action for AI Company

CCPA and Data Breach Class Action for Leading Software Company

TCPA and Other Class Actions for Major Technology Company

Wiretap Act Action Against a Major Consumer Electronics Manufacturer

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Clients seek out Tiffany for her successful track record in defending class action claims on behalf of clients in a broad range of industries, including technology, healthcare, and consumer product companies. She represents numerous Fortune 500 companies in high-stakes litigation involving privacy and marketing claims in courts throughout the United States.

Tiffany Cheung

Clients seek out Tiffany for her successful track record in defending class action claims on behalf of clients in a broad range of industries, including technology, healthcare, and consumer product companies. She represents numerous Fortune 500 companies in high-stakes litigation involving privacy and marketing claims in courts throughout the United States.

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Privacy Litigation 2022 Year in Review: Biometric Information Privacy Act (BIPA)

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Second in our Privacy Litigation Year in Review series is an overview of cases under Illinois’s Biometric Information Privacy Act (BIPA).

Privacy Litigation 2022 Year in Review: Biometric Information Privacy Act (BIPA)

2022 brought a new wave of data privacy lawsuits seeking to impose wiretapping liability on website operators and their service providers—just as the dust settled on the <a href="https://www.mofo.com/resources/insights/220113-web-analytics-session-reply">first wave</a>. To date, plaintiffs have filed over 120 such lawsuits across nine jurisdictions (California, Florida, Illinois, Pennsylvania, Maryland, Massachusetts, Missouri, New York, and Washington) seeking to capitalize on statutory damages. California and Pennsylvania are at the focal point of these filings, with recent circuit court decisions reopening the floodgates.  In addition to moving beyond California and Florida, a chief fixture of this second wave has been a focus on live chat recording. While about one-third of these cases are still premised on session replay—the technology at issue in the <a href="https://www.mofo.com/resources/insights/220113-web-analytics-session-reply">first wave</a> of these cases—the remaining two‑thirds are premised on the alleged wiretapping of online customer service chat communications.Read the <a href="https://www.mofo.com/resources/insights/230112-2022-year-in-review-wiretapping-litigation">client alert</a>.

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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

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Erik Manukyan is an associate in the Complex Litigation Department of Morrison Foerster's Los Angeles office.

Erik Manukyan

Privacy Litigation 2022 Year in Review: Wiretapping Litigation

2022 brought a new wave of data privacy lawsuits seeking to impose wiretapping liability on website operators and their service providers—just as the dust settled on the first wave. To date, plaintiffs have filed over 120 such lawsuits across nine jurisdictions (California, Florida, Illinois, Pennsylvania, Maryland, Massachusetts, Missouri, New York, and Washington) seeking to capitalize on statutory damages. 

Privacy Litigation 2022 Year in Review: Wiretapping Litigation

The Supreme Court just agreed to review an important question at the intersection of arbitration law and appellate practice. Its ultimate decision in the case could provide a major boost to defendants seeking to enforce arbitration agreements in circuits (including the Second and Ninth) where they currently operate under a disadvantageous rule.Section 16(a) of the Federal Arbitration Act permits immediate interlocutory appeal of a district court’s denial of a motion to compel arbitration. When a defendant exercises that right, what happens to the underlying district court litigation—does it proceed apace or is it automatically stayed until the appellate court decides whether the dispute should be in court at all? The circuits have long disagreed on that question, and on December 9 the Supreme Court granted certiorari to answer it.Read the <a href="https://www.mofo.com/resources/insights/221213-supreme-court-to-settle-longstanding-split">client alert</a>.

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Joe Palmore co-chairs Morrison Foerster’s Appellate and Supreme Court practice. Chambers USA describes him as “an outstanding oral advocate,” who is “calm, focused, effective and doesn’t back down,” and has “complete command of the facts.” Joe “writes great briefs” (Chambers USA), with one client recounting that “the Court mirrored the language he thoughtfully chose in its ultimate order” (Legal 500).

Joseph R. Palmore

Joseph R. Palmore is co-chair of the firm's Appellate and Supreme Court Practice Group and Managing Partner for the Washington, D.C. office. Before joining Morrison Foerster, Joe was an Assistant to the Solicitor General at the United States Department of Justice and the Deputy General Counsel of the Federal Communications Commission (FCC).

Joseph Palmore

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Supreme Court To Settle Longstanding Split Over Stays Pending Arbitration Appeals

High Court Orders Rethink Of $9.7M Award After TransUnion

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The Supreme Court just agreed to review an important question at the intersection of arbitration law and appellate practice. Its ultimate decision in the case could provide a major boost to defendants seeking to enforce arbitration agreements in circuits (including the Second and Ninth) where they currently operate under a disadvantageous rule.




















Supreme Court To Settle Longstanding Split Over Stays Pending Arbitration Appeals

For decades, health-conscious consumers have argued about what it really means for a food to be “healthy.” Is dark chocolate “healthy”? How about breakfast cereal, coffee, or fruit gummies? At the same time, class action litigants have seized on ever-evolving and subjective definitions of “healthy,” pursuing claims against food manufacturers based on allegations that consumers were misled by a product’s marketing into believing that the product was more “healthy” than it really is.But as of this week, the U.S. Food and Drug Administration might finally have an answer to the age-old question of what “healthy” means. On September 28, 2022, the FDA released its new proposed criteria for when foods can be labelled “healthy.” Under the FDA’s new proposed definition, in order to make a “healthy” claim, a product must:<ul><li>Contain a certain meaningful amount of food from at least one of the food groups or subgroups (such as fruit, vegetable, dairy, etc.) recommended by the Dietary Guidelines.</li><li>Adhere to specific limits for certain nutrients, such as saturated fat, sodium, and added sugars. The threshold for the limits is based on a percent of the Daily Value (DV) for the nutrient and varies depending on the food and food group.</li></ul>The History of “Healthy”The FDA first defined “healthy” for label claims in 1994, and most recently <a href="https://www.fda.gov/regulatory-information/search-fda-guidance-documents/guidance-industry-use-term-healthy-labeling-human-food-products" target="_blank">updated its guidance</a> in 2016, when the agency advised manufacturers that it would allow “healthy” labels on food products that contain at least ten percent of the Daily Value of potassium or vitamin D, or products that have a fat profile makeup of predominantly mono- and polyunsaturated fats.Under the FDA’s current definition, a food qualifies for the “healthy” label if it has limited amounts of certain fats, cholesterol, and sodium, and provides at least ten percent of the Daily Value of certain nutrients. Notably, there are no limits on added sugars.Digesting the New Proposed CriteriaThe FDA’s new criteria, announced this week, seeks to reduce added sugar consumption by limiting added sugar in products labeled “healthy” to generally no more than 2.5 grams per serving, but there are exceptions based on the exact category of food product.As part of the FDA’s <a href="https://www.federalregister.gov/documents/2022/09/29/2022-20975/food-labeling-nutrient-content-claims-definition-of-term-healthy" target="_blank">new proposed definition</a>, foods can be slotted into one of four categories: (1) raw whole fruits and vegetables; (2) individual food products (like plain yogurt or brown rice); (3) combination foods, like mixed products (like granola or yogurt with fruit chunks), main dish products (like frozen entrees intended to be eaten with sides to form a full meal), and meal products (like frozen dinners); and (4) plain water.Raw whole fruits and vegetables and plain water automatically qualify for the “healthy” label.The other categories are judged based on (1) meeting certain nutritional requirements and (2) if the product contains a certain amount of food from at least one of the food groups or subgroups (e.g., fruit, vegetables, grains, dairy, and protein foods) recommended by the 2020–2025 Dietary Guidelines for Americans.To understand the FDA’s new proposed criteria, it is important to understand that the FDA measures quantity in “food group equivalents” (FGE). One FGE is based on the FDA’s understanding of how much of that food group a healthy person should consume on a 2,000-calorie daily diet.Mixed Product Requirements“<a href="https://www.govinfo.gov/content/pkg/FR-2022-09-29/pdf/2022-20975.pdf#page=23" target="_blank">Mixed products</a>” are food products that contain small amounts of multiple components. Imagine a trail mix with fruits and nuts, where there are not enough fruits in the package to equal a full FGE’s amount of fruit, and there are also not enough nuts to qualify as a full serving of nuts. Under the FDA’s new proposed rule, a mixed food is “healthy” if it contains at least half an FGE each of two different food groups. So the trail mix would qualify for the “healthy” label if it has half an FGE’s worth of nuts per serving (1/2 ounce-equivalent of nuts) and half an FGE’s worth of fruit per serving (1/4 cup-equivalent of fruit). The trail mix would not qualify as “healthy” if it had the same amount of nuts but a miniscule amount of fruit, because it would then be a mixed product with half an FGE’s worth of only one food group, not the required two.Main Dish and Complete Meal Product RequirementsUnder the FDA’s new proposed rule, “<a href="https://www.govinfo.gov/content/pkg/FR-2022-09-29/pdf/2022-20975.pdf#page=25" target="_blank">Main dish products</a>” must contain at least one full FGE’s worth of two different food groups per labelled serving. For example, a vegetarian lasagna containing a ½ cup-equivalent of mixed vegetables per serving (one vegetable FGE) and ¾ ounce-equivalent of whole grains per serving (one whole-grain FGE) would qualify as “healthy.”Similarly, under the FDA’s new proposed rule, “<a href="https://www.govinfo.gov/content/pkg/FR-2022-09-29/pdf/2022-20975.pdf#page=26" target="_blank">Complete meal products</a>” must contain at least one full FGE of three different food groups per labelled serving. A frozen salmon dinner would meet the “healthy” criteria if it contains at least one FGE each of salmon, green beans, and brown rice. That would be a large enough amount of three different food groups: seafood (protein food), vegetables, and whole grains.Combination foods have yet <a href="https://www.govinfo.gov/content/pkg/FR-2022-09-29/pdf/2022-20975.pdf#page=24" target="_blank">further complexities</a> under the FDA’s new proposed rule. For example, beans, peas, and lentils may be counted as either a protein or as a vegetable in a combination food.One Day You’re Healthy, the Next Day You’re NotUnder the FDA’s new proposed definition, some foods that currently qualify as “healthy” will no longer meet the criteria to use the label. These products include white bread, some yogurts, and cereals that exceed the FDA’s new limits on added sugar per serving.But other products that currently fail to qualify as “healthy” would qualify under the FDA’s new proposed definition. These products include avocados, nuts and seeds, higher-fat fish such as salmon, water, and certain oils (such as oil-based spreads or dressings). Water previously failed to qualify as healthy because it did not meet the existing nutrient-related criteria—another oversight that the FDA is seeking to close with this update.Recordkeeping RequirementsWhile the new contours of “healthy” will get all of the media (and potentially litigation) attention in coming months, the FDA’s proposed new definition of “healthy” comes with <a href="https://www.govinfo.gov/content/pkg/FR-2022-09-29/pdf/2022-20975.pdf#page=27">additional recordkeeping requirements</a> that are likely to be important to food manufacturers. Manufacturers that want to use the “healthy” label on their products may be required to keep records proving their products meet the FDA’s requirements. The FDA may require companies to maintain records such as recipes or formulations, batch records, or certificates of analysis from ingredient suppliers.Exact recordkeeping requirements depend on the type of food product, and if the ingredient statement on the product’s information panel makes it facially apparent that the product meets the “healthy” requirements. Manufacturers subject to the FDA’s new proposed definition would be required to keep records for a period of two years after rolling out the product, and would be required to make the records available to the FDA for examination or copying upon request.The Future of “Healthy”As part of its effort to improve the nation’s health, the FDA is also developing a front-of-package symbol indicating that a product meets the FDA’s “healthy” criteria. The FDA understands that consumers are busier than ever and wants to enable consumers to make healthy decisions more easily. The FDA is <a href="https://www.federalregister.gov/documents/2022/09/29/2022-20975/food-labeling-nutrient-content-claims-definition-of-term-healthy" target="_blank">accepting</a> public comment on its proposed rule for “healthy” labeling until December 28, 2022.Morrison & Foerster will continue to monitor the FDA’s rulemaking on “healthy” claims and is available to provide legal guidance to its clients on regulatory and class action litigation matters pertaining to the “healthy” label.

Water Is In, White Bread Is Out: “Healthy” Gets a New Look in 2023

Nature's Path Foods

Suja Juices

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