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

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 and is resident in the firm’s Washington, D.C. and New York offices. 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

Joe Palmore co-chairs Morrison Foerster’s Appellate and Supreme Court practice and is resident in the firm’s Washington, D.C. and New York offices. 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

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

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For decades, health-conscious consumers have argued about what it really means for a food to be “healthy.”

The Ninth Circuit gets more requests to appeal class-certification decisions under Rule 23(f) than any other court.  How do those requests fare?  We take a look below, drawing from <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3589733">this invaluable nationwide study</a> by Professor Bryan Lammon.BackgroundFederal Rule of Civil Procedure 23(f) provides a way to immediately appeal orders granting or denying class certification.  These interlocutory orders ordinarily would be appealable only after final judgment.  But Rule 23(f) was added in 1998 because the class-certification decision is often a make-or-break moment.  If the class is certified, the defendant feels overwhelming pressure to settle; if not, the plaintiff might drop the case.  By allowing appeal before those pressures kick in, Rule 23(f) creates a chance to correct errors in these high-stakes decisions and to develop the law.A Rule 23(f) appeal, however, is not automatic.  A party must file a petition for permission to appeal, and the court of appeals has discretion over whether to grant it.  To make that decision, the Ninth Circuit looks for:  (1) a “death-knell situation” coupled with a “questionable” decision, (2) “an unsettled and fundamental issue” of class-action law important to the litigation and likely to evade end-of-case review, or (3) manifest error.  Chamberlan v. Ford Motor Co., 402 F.3d 952, 959 (9th Cir. 2005).In the Ninth Circuit, Rule 23(f) petitions go to the motions panel, which rotates monthly.  Just two judges decide the petitions (unless they call in a third judge, for example if the first two disagree).  The motions panel typically issues only a brief order without reasoning; if the petition is granted, the case then goes to a merits panel for full briefing, argument, and decision.A look at the Ninth Circuit’s Rule 23(f) docket Despite their high stakes for the parties, Rule 23(f) petitions get little fanfare sitting on the motions panel’s docket.  We’d like to shed some light on that docket.  Our data below come from Prof. Lammon’s analysis of all Rule 23(f) petitions filed from 2013 through 2017, plus our own research on Ninth Circuit petitions filed from 2018 through 2021.Volume:  The Ninth Circuit gets a ton of Rule 23(f) petitions.  The Ninth Circuit decides far more Rule 23(f) petitions than any other circuit—unsurprising given its size.  In Prof. Lammon’s 2013-2017 data, the Ninth Circuit got over 50 petitions a year, while the next closest courts (the Second and Seventh Circuits) each got fewer than 20 annually.  And the Ninth Circuit’s pace hasn’t dropped: from 2018 to 2021, the court saw an average of about 60 petitions per year. Rule 23(f) outcomes:  It’s tough to seek Rule 23(f) appeal in the Ninth Circuit, especially as a defendant.  The Ninth Circuit is one of the stingiest courts in the country when it comes to permission to appeal under Rule 23(f).  Prof. Lammon found the Ninth Circuit granted only 18% of Rule 23(f) petitions from 2013 to 2017—lower than any other circuit but one (the D.C. Circuit, which decided only 7 petitions in that period).  We found the Ninth Circuit had a similarly low grant rate from 2018 to 2021, about 20%.  And that rate was only 10% for petitions filed last year (2021).  Prof. Lammon found a statistically significant gap between the Ninth Circuit and the most generous Rule 23(f) court (the Fifth Circuit, with a grant rate of 50%).It’s especially tough to be a defendant filing a Rule 23(f) petition in the Ninth Circuit.  On the surface of Prof. Lammon’s data, Ninth Circuit plaintiffs and defendants seemingly had similar success—19% and 17% of petitions granted, respectively.  What is noteworthy about that parity, however, is that nationally defendants seeking Rule 23(f) review do better than plaintiffs. So while the Ninth Circuit’s 19% grant rate for plaintiffs was in line with the national plaintiffs’ average of 21%, the Ninth Circuit defendants’ rate (17%) was quite a bit below the national defendants’ average of 27%.  And even the surface-level parity in Prof. Lammon’s data has disappeared in recent years—we found from 2018 to 2021 that Ninth Circuit plaintiffs had a whopping 29% grant rate, while defendants sat at a measly 13%.  (That recent disparity, though, was biggest in 2018-2019 and lessened in 2020-2021.)  As Prof. Lammon explains, these figures come with caveats, and he found little statistically significant evidence of courts treating plaintiffs and defendants differently.  But to the extent there is a difference in the Ninth Circuit, it appears to disfavor defendants. Merits outcomes:  In the Ninth Circuit, reversal of class-certification decisions is relatively rare.  Once Rule 23(f) appeal is granted, courts of appeals nationwide reverse the district court roughly half the time (54% for 2013-2017 petitions).  But the Ninth Circuit reverses less often:  37% for 2013-2017 petitions, and 44% for 2018-2021 petitions.  These reversal rates, Prof. Lammon found, do not differ significantly depending on which party is appealing.  The Ninth Circuit’s low 23(f) grant rate, combined with its low reversal rate, means that only a few lucky petitioners achieve their ultimate goal—reversal of a class certification grant or denial.Timing:  The Ninth Circuit generally decides Rule 23(f) petitions in 3 months.  We found the Ninth Circuit decides Rule 23(f) petitions in about 85 days on average—in line with the national average according to Prof. Lammon’s data.  But there’s a lot of variation behind that average.  Many petitions were decided more quickly—over 30% of the petitions we saw were decided within 60 days, and over 60% within 90 days—but some took much longer, with 17% taking longer than 120 days.The timing is roughly similar whether the petition is granted or not.  Grants took slightly longer—90 days on average, compared to 83 days for denied petitions—but it’s unclear whether that’s a meaningful difference.Amicus participation:  Petition-stage amici are rare.Amici weighed in on Rule 23(f) petitions in only 4% of the Ninth Circuit cases we looked at.  That’s not surprising, as the deadlines for these petitions are so tight, there’s not much time for amici to get involved (14 days to file the petition and 10 days to file the response). When amici did participate at the Rule 23(f) stage in the cases we saw, the petition was granted four times as often.  But it’s impossible to draw firm conclusions from that.  Not only is our data set small, but we can’t tell which of those petitions would have been granted even without amicus participation.  After all, if a petition was strong enough to grab amici’s attention, it might have been strong enough on its own to grab the court’s attention as well.  On the other hand, the presence of an amicus brief does signal to the court that the issue presented by petitioner is of interest to other parties.The bottom lineRule 23(f) petitions are a valuable tool for disappointed litigants to get appellate review and for courts to develop class-action law.  And they are popular in the Ninth Circuit, which has more Rule 23(f) activity than any other court.  But the Ninth Circuit uses its Rule 23(f) power relatively sparingly, granting review less often and—even when it does grant review—affirming the district court more often.

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How Do Rule 23(F) Petitions Fare In The Ninth Circuit?

How Do Rule 23(F) Petitions Fare In The Ninth Circuit?

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The Ninth Circuit gets more requests to appeal class-certification decisions under Rule 23(f) than any other court.  How do those requests fare?  We take a look

Morrison Foerster’s Class Actions + Mass Torts Practice Achieves Top Rankings by The Legal 500The Legal 500 US 2022 has recognized Morrison Foerster as a top Tier 1 in Product Liability, Mass Torts, and Class Action (Defense) for Consumer Products.Additionally, the practice received top rankings in:<ul><li>Dispute Resolution: Product Liability, Mass Tort and Class Action – Defense: Pharmaceuticals and Medical Devices</li><li>Dispute Resolution: Product Liability, Mass Tort and Class Action – Defense: Toxic Tort</li><li>Dispute Resolution: Financial Services Litigation</li><li>Industry Focus: Environment: Litigation</li><li>Industry Focus: Environment: Regulatory</li><li>Media, Technology and Telecoms: Advertising and Marketing: Litigation</li></ul>In addition to the group rankings, Erin Bosman and Julie Park were named among the top product liability and class action practitioners nationwide:Erin Bosman was named a “Leading Lawyer” in Product Liability, Mass Torts, and Class Action (Defense) for Consumer Products. Erin was also recognized for her work in Defense: Pharmaceuticals and Medical Devices and Defense: Toxic Tort. The Legal 500 has recognized Erin’s outstanding skills in “handling high-stakes litigation and product recalls” typically at the “forefront of the team’s highest-profile mandates.”Julie Park was recognized as a “Next Generation Partner” in Product Liability, Mass Tort and Class Action (Defense) for Pharmaceuticals and Medical Devices. Julie was also recognized for her work in Defense: Toxic Tort. Julie was recognized by The Legal 500 as a “result of her combined legal and technical knowledge,” particularly her management of “complex and multi-jurisdictional litigation, both in state and federal court, as well as guiding clients through product recalls.”Included in the 2022 guide, the following Class Actions + Mass Torts lawyers were recommended in their respective practice areas:Defense: Consumer Products<ul><li>Erin Bosman – “Leading Lawyer”</li><li>Grant Esposito</li><li>David Fioccola</li><li>Jessica Grant</li><li>Julie Park</li><li>Bill Tarantino</li><li>Alexandra Preece Barlow</li></ul>Defense: Pharmaceuticals and Medical Devices<ul><li>Julie Park – “Next Generation Partner”</li><li>Erin Bosman</li><li>David Fioccola</li><li>Jessica Grant</li><li>Bill Tarantino</li><li>Alexandra Preece Barlow</li></ul>Dispute Resolution: Financial Services Litigation<ul><li>Grant Esposito</li><li>David Fioccola</li><li>Michael Miller</li><li>Nancy Thomas</li></ul>Industry Focus: Environmental Litigation<ul><li>Bill Tarantino</li></ul>Media, Technology and Telecoms: Advertising and Marketing<ul><li>Erin Bosman</li><li>Tiffany Cheung</li><li>David Fioccola</li><li>Claudia Vetesi</li></ul>Toxic Tort Defense<ul><li>Erin Bosman</li><li>Grant Esposito</li><li>David Fioccola</li><li>Julie Park</li><li>James Schurz</li><li>Bill Tarantino</li><li>Claudia Vetesi</li><li>Alexandra Preece Barlow</li><li>Krista deBoer</li></ul><div>See what our <a href="https://www.mofo.com/resources/news/220623-mofos-class-actions-rankings-legal.html">clients and peers are saying about our team</a>.</div><div></div><div></div><div></div><div></div><div>To view the complete list of Morrison Foerster's rankings in The Legal 500's guide, please visit <a href="https://www.legal500.com/firms/50701-morrison-foerster/52144-los-angeles-usa/">the publication's website</a>.</div>

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Morrison Foerster’s Class Actions + Mass Torts Practice Achieves Top Rankings by The Legal 500

Morrison Foerster’s Class Actions + Mass Torts Practice Achieves Top Rankings by The Legal 500

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Morrison Foerster’s Class Actions + Mass Torts Practice Achieves Top Rankings by The Legal 500
The Legal 500 US 2022 has recognized Morrison Foerster as a top T

Morrison Foerster’s Class Actions + Mass Torts group received notable recognitions in the 2022 edition of Chambers USA, reflecting the group’s technical legal ability, professional conduct, client service, diligence, and commercial astuteness. The group was once again ranked in the following practice areas:<ul><li>USA – Nationwide: Financial Services Regulation: Consumer Finance (Litigation)</li><li>USA – Nationwide: Retail</li><li>California: Environment</li></ul>In addition to the recurring rankings, the group secured two new practice rankings:<ul><li>USA – Nationwide: Product Liability: Consumer Class Actions</li><li>USA – Nationwide: Food & Beverages: Regulatory & Litigation</li></ul>Highlighted for her experience and expertise, partner Julie Park was also ranked in Product Liability & Mass Torts nationwide. Julie was noted by clients and peers as “a strong partner who advises us on product liability and regulatory risks” and “a knowledgeable and responsible resource.”See what our <a href="https://www.mofo.com/resources/news/220621-mofos-class-actions-recognized-chambers.html">clients and peers are saying about our team</a>.To view the complete list of Morrison Foerster’s rankings in the 2022 edition of Chambers USA, please visit the <a target="_blank" href="https://chambers.com/law-firm/morrison-foerster-llp-usa-5:7854">publication’s website</a>.

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Morrison Foerster’s Class Actions + Mass Torts Practice Recognized by Chambers USA 2022

Morrison Foerster’s Class Actions + Mass Torts Practice Recognized by Chambers USA 2022

chambers usa 2022 recognizes mofos class actions mass torts group

Morrison Foerster’s Class Actions + Mass Torts group received notable recognitions in the 2022 edition of Chambers USA, reflecting the group’s technical legal a

The United States Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022), is welcome news for California employers.  In short, employers can compel “individual” claims under the Labor Code Private Attorneys General Act of 2004 (PAGA) to arbitration.  With the “individual” PAGA claims compelled to arbitration, a court must dismiss the “non-individual” PAGA claims for lack of standing.To learn more, read our <a href="https://www.mofo.com/resources/insights/220617-viking-river-paga-claim-arbitration.html">client alert</a>.

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Viking River Is Victorious in Compelling Individual PAGA Claim to Arbitration

Viking River Is Victorious in Compelling Individual PAGA Claim to Arbitration

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The United States Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022), is welcome news for California employers.  In short, e

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>.