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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Adam J. Hunt

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Alexandra Preece Barlow

Mitchell A. Hokanson

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

Nearly one year after Florida <a href="https://www.mofo.com/resources/insights/210706-tcpa-like-florida-law-takes-effect.html">introduced</a> a law that imposes broad prior consent requirements on phone and text solicitations (in apparent response to the U.S. Supreme Court’s narrowing of the applicability of the federal Telephone Consumer Protection Act (TCPA)), Oklahoma has followed suit. The <a href="http://webserver1.lsb.state.ok.us/cf_pdf/2021-22%20ENR/hB/HB3168%20ENR.PDF" target="_blank">Telephone Solicitation Act of 2022</a> was signed by Governor Stitt on May 20, 2022, and it takes effect on November 1, 2022.To learn more, read our <a href="https://www.mofo.com/resources/insights/220607-another-state-imposes-prior-consent-obligations.html">client alert</a>.

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.

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

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Another State Imposes Prior Consent Obligations for Telemarketing Calls - Along with a Private Right of Action

Privacy Litigation 2021 Year in Review: TCPA Litigation

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Nearly one year after Florida introduced a law that imposes broad prior consent requirements on phone and text solicitations (in apparent response to the U.S. S

Another State Imposes Prior Consent Obligations for Telemarketing Calls - Along with a Private Right of Action

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.

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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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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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