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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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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Zak Newman

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

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Mitchell Hokanson

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FDA Seeks to Phase Out Synthetic Color Additives

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

ICPHSO 2025: CPSC at ICPHSO

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

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

David Fioccola, Adam Hunt, and Lily Westergaard authored an article for Pratt's Privacy & Cybersecurity Law Report reviewing recent decisions on the Telephone Consumer Protection Act (TCPA)."Last year marked another year of important developments in the Telephone Consumer Protection Act (“TCPA”) landscape as lower courts issued conflicting interpretations of the ruling by the Supreme Court of the United States (“SCOTUS”) in Barr v. AAPC  (“AAPC”) and began to apply the definition of “autodialer” that SCOTUS articulated in Facebook, Inc. v. Duguid. Although defendants swung for the fences in an attempt to argue that AAPC rendered the entirety of the TCPA unenforceable for a five-year period and had some initial success, the tide seems to be turning. Similarly, although Duguid provided a narrow definition of an “autodialer,” factual disputes about what satisfies that new definition may still need to be resolved on summary judgment."Read the <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt9bcf813070fdf0ad/627315fadeee7329767e7644/220422-tcpa-litigation-review-update.pdf" target="_blank">full article</a>.

Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

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TCPA Litigation Review and Update

Privacy Litigation 2021 Year in Review: TCPA Litigation

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David Fioccola, Adam Hunt, and Lily Westergaard authored an article for Pratt's Privacy & Cybersecurity Law Report reviewing recent decisions on the Telephone C

TCPA Litigation Review and Update

In a recent win for vaccine manufacturers, a district court found that federal law preempted claims against Merck, arising out of alleged injuries from the Gardasil vaccine. Herlth v. Merck & Co., Inc., No. 3:21-cv-438 (JAM), 2022 WL 788669 (D. Conn., Mar. 15, 2022). This ruling shows that plaintiffs making vague allegations of injury will not satisfy Iqbal and Twombly.BackgroundApproved by the Food and Drug Administration (“FDA”) in 2006, Merck’s Gardasil vaccine helps protect individuals against human papillomavirus infection, a viral infection associated with cervical cancer. With her mother’s consent, the plaintiff in Herlth received the first two doses of the vaccine at the age of 15. The plaintiff allegedly experienced side effects. She was diagnosed with various disorders, including chronic fatigue syndrome and postural orthostatic tachycardia syndrome, a condition that affects the body’s ability to adjust the heart rate and regulate blood flow. The plaintiff filed a petition for compensation in the “Vaccine Court” (i.e., the Office of the Special Masters of the U.S. Court of Federal Claims)—a prerequisite for bringing a civil action. Only after receiving an unfavorable outcome at the Vaccine Court may an individual sue the manufacturer. Here, the Vaccine Court dismissed the plaintiff’s claim for insufficient proof. The plaintiff then sued in federal court, alleging state law failure to warn, manufacturing defect, negligence, and common law fraud claims. The crux of the plaintiff’s complaint was her failure to warn claim. She alleged that her mother believed the vaccine was safe based on Gardasil television advertisements and other marketing material.The District Court’s DecisionIn granting Merck’s motion to dismiss, the court concluded that all claims were either preempted or inadequately pled. Federal law preempted the failure to warn claim, the plaintiff failed to plausibly plead a manufacturing defect, the plaintiff failed to plead fraud with particularity, and federal law preempted the fraud on the FDA claim.With respect to the failure to warn claim, the court held that the Food, Drug, and Cosmetic Act (“FDCA”) preempts a state law failure to warn claim against a drug manufacturer. FDA approves the text of vaccine labels. Manufacturers may change the label only with FDA approval, unless the changes reflect “newly acquired information” about warnings or adverse reactions, among other things. 21 CFR §601.12(f)(2)(i). A unilateral label change requires reasonable evidence of a causal link between the newly acquired information and the adverse reaction at issue. 21 CFR §201.57(c)(6)(i). Under this standard, the plaintiff had to sufficiently plead that Merck had newly acquired information (i.e., information received after the FDA’s approval of Gardasil) related to the plaintiff’s alleged injuries that justified a label change.Here, the plaintiff failed to meet her burden. She relied on conclusory allegations about risks of Gardasil that bore no concrete relationship to her alleged injuries. Her complaint also referred to scientific studies and news articles linking Gardasil to her alleged injuries without explaining how the studies supported her allegations. Even worse, many of the studies were published well after the plaintiff received her vaccine. Merck could not have relied on them to effect a label change before the plaintiff was allegedly injured.The court also rejected the plaintiff’s argument that drug labeling preemption principles apply only to design defect claims and not failure to warn claims. The plaintiff based this argument on the Vaccine Act’s express preemption of state law design defect claims against vaccine manufacturers. In rejecting this argument, the court reasoned that Congress did not intend to make it more difficult to bring design defect claims, while also, opening the “floodgates” for failure to warn claims. The court thus found that the Vaccine Act preempts both state law design defect and failure to warn claims.As to the manufacturing defect claim, the court found that the design defect claim was in fact a “dressed up” manufacturing defect claim; the plaintiff did not allege a mistake or flaw in the manufacturing process.The rest of the plaintiff’s claims failed for similar reasons. Under her negligence claim, the plaintiff lumped together various disparate theories that sounded in fraud, which requires a heightened pleading standard. The plaintiff failed to meet her burden. For instance, the plaintiff’s references to Merck’s advertisements merely described the advertisements. She did not point to specific statements in the advertisements made with knowing falsity.Finally, even if the plaintiff could have satisfied pleading standards for her fraud on the FDA claim, Buckman preemption applied, barring state law claims alleging fraud on the FDA. See Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 348 (2001). As the court noted, the Second Circuit further clarified that the FDCA preempts state tort law claims only when the cause of action assigns liability “solely on the basis” of fraud against the FDA. Desiano v. Warner-Lambert & Co., 467 F.3d 85, 98 (2d Cir. 2006). Since the plaintiff sought to assign liability “solely on the basis” of purported fraud against the FDA, the FDCA preempted her fraud on the FDA claim.TakeawaysThis ruling is one of the first major vaccine preemption decisions since FDA authorized the COVID-19 vaccines, which spurred much public attention and discussion around vaccines. Herlth makes clear that there is a high bar for successfully pleading vaccine products liability claims. Under Twombly and Iqbal, showing that a vaccine manufacturer acquired new information regarding possible side effects requires more than vague and conclusory allegations.

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

Fitbit

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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

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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Pleading and Preemption: Immunization Against Vaccine Products Liability Claims

Pleading and Preemption: Immunization Against Vaccine Products Liability Claims

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In a recent win for vaccine manufacturers, a district court found that federal law preempted claims against Merck, arising out of alleged injuries from the Gard

The Tenth Circuit recently held that the Federal Meat Inspection Act (FMIA) gets the final word on what “Product of the U.S.A.” means for labels of beef products. Thornton v. Tyson Foods, Inc., No. 20-2124, 2022 WL 727628 (10th Cir. Mar. 11, 2022). The court based its decision on federal preemption, finding that the express preemption provision of FMIA preempted plaintiffs’ deceptive labeling claims under state law.Case background. Since 2015, defendants including Tyson Foods, Inc. have imported live cattle from other countries, slaughtered and processed the cattle in the United States, and then labeled the resulting beef products as “Products of the USA.” Already-slaughtered beef imported into the country also gets the same label. Plaintiffs, a rancher and a consumer, both argued in their complaints that this practice is misleading, fraudulent, and deceptive under New Mexico law.At issue is the FMIA, which permits labels that are “not false or misleading” and that the Food Safety Inspection Service (FSIS), an agency of the USDA, has approved. The FSIS has a Policy Book that defines “Product of the U.S.A.” as products that “at a minimum, have been prepared in the United States,” with no requirement that the animals be born or prepared in the United States. The FSIS approved defendants’ beef labels here.Both the consumer’s and the rancher’s cases were removed to federal court, and the district court granted defendants’ motions to dismiss, concluding that federal preemption barred all of plaintiffs’ state law claims. The district court further concluded that, either way, plaintiffs had failed to state a claim under any of their theories of liability. Plaintiffs appealed the ruling to the Tenth Circuit.Federal law and express preemption trump. The Tenth Circuit considered analysis of the beef labels under federal law. The court found it “undisputed” that the FSIS approved defendants’ labels “in line with the currently applicable and permissive regulatory framework and meaning of ‘Product of the U.S.A.’” Furthermore, the court found that, because the FSIS approved the beef labels, this approval was a determination that they were not “false or misleading” under the FMIA.Next, the court evaluated the FMIA’s express preemption provision, which prohibits states from imposing any labeling requirements for meat products that are “in addition to, or different than” the federal requirements. The Tenth Circuit concluded that, because FSIS approval was a determination under federal law, the FMIA’s express preemption provision prohibited any additional arguments under state law.In dissent, Judge Lucero argued the FMIA set separate, dual requirements—one, for the labels not to be misleading, and two, for the FSIS to approve those labels—and disagreed with the majority’s interpretation that FSIS approval automatically cleared the misleading hurdle under federal law.State’s concurrent jurisdiction did not change analysis. Plaintiffs also relied on the FMIA’s concurrent jurisdiction provision, which allows states to exercise concurrent jurisdiction regarding labeling requirements, so long as state requirements are “consistent with” the FMIA. This provision, plaintiffs argued, should mean they could still make an argument under New Mexico law. Judge Lucero’s dissenting opinion agreed, as he thought whether the labels were misleading was an open question that should allow plaintiffs to make arguments under state law.But the court found that this argument, too, was “doomed by the FSIS’s preapproval.” The majority reiterated that “plaintiffs’ concurrent-jurisdiction argument ignores the critical feature of this case”: that defendants’ products were not misbranded under federal law, so there was no open question. An analysis under state law would impose an additional requirement to what federal law calls for. Where federal preemption applies, additional state law analysis is barred.The court pointed to a recent Ninth Circuit decision, Webb v. Trader Joe’s Co., 999 F.3d 1196 (9th Cir. 2021), in which the court found that federal approval of labels for poultry products preempted plaintiff’s attempt to impose additional requirements for those labels under state law. The court also cited a number of district court decisions and concluded the consensus favored its interpretation that additional analysis under state law is preempted by the FMIA for the beef labels in this case. Key takeaways. The Tenth Circuit’s decision is a win for defendants. The Tenth Circuit’s determination that federal preemption prohibits additional requirements under state law for beef product labels should prove helpful for defendants facing class actions claims, who seek to limit plaintiffs’ arguments about other federally regulated products. Preemption is a topic that comes up frequently in disputes involving regulated industries like food and food labeling. Given the rise of food litigation in recent years, it is likely to continue to be an issue that parties should be prepared to confront until the cows come home.

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Till the Cows Come Home: Tenth Circuit’s Affirmation of Federal Preemption Is a Win for Defendants in Food Labeling Cases

Till the Cows Come Home: Tenth Circuit’s Affirmation of Federal Preemption Is a Win for Defendants in Food Labeling Cases

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The Tenth Circuit recently held that the Federal Meat Inspection Act (FMIA) gets the final word on what “Product of the U.S.A.” means for labels of beef product

Originally published by Law360, Claudia Vetesi, Nicole Ozeran, and Lena Gankin authored an article discussing a wave of protein-labeling lawsuits hitting food manufacturers, alleging that their products’ front-label protein content statements violate U.S. Food and Drug Administration (FDA) regulations, and mislead consumers by overstating the amount of protein in the food products. Read the full article below. Since spring 2020, food manufacturers have been hit with a wave of protein-labeling lawsuits all making the same core allegation: that their products' front-label protein content statements violate U.S. Food and Drug Administration regulations, and mislead consumers, by overstating the amount of protein in the food products. While the plaintiffs admit that the FDA regulations are explicitly applicable to back-label claims, they allege that these same regulations do not apply to the same statements being made on front labels. The defendants argue otherwise, claiming that the plaintiffs' proffered theory would result in the illogical result of having different protein statements on the front and back labels. And indeed, the U.S. District Court for the Northern District of California, in a February ruling in Nacarino v. Kashi Co., described the applicable regulatory scheme as "convoluted."[1] That was true — until recently. Earlier this year, the FDA released new guidance clarifying labeling requirements concerning protein claims, undermining the foundation of the labeling plaintiffs' claims. And the Northern District of California has since dismissed these protein lawsuits with prejudice. These decisions highlight the dispositive impact of preemption arguments. But in two cases, plaintiffs have since appealed the district courts' orders dismissing their claims, bringing the regulatory scheme back into question. District Courts' Distaste for Protein Suits On Feb. 10, in Nacarino v. Kashi Co., Judge Vince Chhabria dismissed with prejudice the plaintiff's claims that Kashi mislabels its food products by miscalculating their protein content.[2] The Nacarino court found that Kashi's use of the nitrogen method for calculating protein is appropriate under FDA regulations, and any claims brought by individuals based on the use of this method were preempted by the Federal Food, Drug, and Cosmetic Act.[3] In making its ruling, the Nacarino court relied heavily on the FDA's newly issued guidance on its website clarifying appropriate methods for calculating front-label protein statements. Less than a week after the Nacarino decision, another court in the Northern District of California followed suit, dismissing with prejudice the allegations of the plaintiff in Chong v. Kind LLC that Kind's front-label protein claims were deceptive and unlawful.[4] In Chong, the court declined to follow its own earlier decision in what it admitted was a "nearly identical" lawsuit from 2020, Minor v. Baker Mills, which had permitted protein-labeling claims to proceed past a motion to dismiss.[5] The Chong court acknowledged that "it has now become apparent ... that Minor was incorrectly decided."[6] Referencing Nacarino, the Chong court held that the plaintiff's claims were preempted because federal regulations establish "that producers may state grams of protein even outside the Nutrition Facts panel calculated by the nitrogen method, and without adjustment for digestibility."[7] Furthermore, the court rejected plaintiff's claims based on Kind's failure to include a percentage of the daily value of protein on the back label, in violation of FDA regulations. The court found that, because they were entirely dependent on violations of the FDCA, the plaintiff's claims under California's Sherman Law were impliedly preempted under the U.S. Supreme Court's 2001 ruling in Buckman v. Plaintiffs' Legal Committee.[8] The plaintiffs in both Nacarino and Chong have since appealed the courts' decisions dismissing their claims with prejudice.[9] Opening briefs are due in June, which will provide additional insight into the plaintiffs' basis for challenging the courts' conclusions that FDA guidance on protein claims is definitive. FDA Regulations and New Guidance Under FDA regulations, food manufacturers may calculate protein content for front-label protein claims at least two different ways: (1) calculating the amino acid content of the food directly, or (2) using the nitrogen method, which requires manufacturers to multiply the nitrogen content of the food by a factor of 6.25.[10] When food manufacturers calculate the percentage daily value of protein on the product's back label, federal regulations require that the percentage be adjusted for digestibility using a "protein digestibility-corrected amino acid score."[11] Because plant-based proteins are not fully digestible by the human body, the amount of protein calculated under the nitrogen method may differ from the amount of protein as adjusted for digestibility and as used for calculating the percentage of daily value on the back label. Plaintiffs have seized on these nuances in the federal regulations to argue that front-label protein claims overstate the amount of protein by failing to account for protein digestibility. In essence, plaintiffs claim that, despite manufacturers calculating protein claims in accordance with FDA regulations for back-label protein statements, using this same calculation for front-label claims is misleading. But no requirement to calculate protein digestibility exists for front-label claims. In its Jan. 11 guidance, the FDA made it clear that, contrary to plaintiffs' claims, food manufacturers are not required to use only an amino acid content method for calculating front-label protein statements, nor are they required to adjust the front-label content claims for digestibility. Indeed, the FDA approves of the use of the nitrogen method for front-label protein claims, and does not require that manufacturers adjust protein content for digestibility when making such claims. Looking Ahead Where plaintiffs' claims rest on an interpretation of the federal regulatory scheme that the FDA recently rejected, decisions from the Northern District of California suggest that preemption arguments may present a viable defense — at least for now. As the U.S. Court of Appeals for the Ninth Circuit grapples with Chong and Nacarino, manufacturers can expect some reprieve from the barrage of these protein case filings. Even if they are named in new filings, manufacturers have additional ammunition in their pockets, and should consider and give great weight to asserting preemption arguments and requesting a stay of their proceedings. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] <a href="https://advance.lexis.com/api/search?q=2022%20U.S.%20Dist.%20LEXIS%2023409&qlang=bool&origination=law360&internalOrigination=article_id%3D1480247%3Bcitation%3D2022%20U.S.%20Dist.%20LEXIS%2023409&originationDetail=headline%3DRulings%2C%20FDA%20Guidance%20May%20Help%20Food%20Cos.%20In%20Protein%20Suits&" target="_blank">Nacarino v. Kashi Co. </a>, No. 21-cv-07036-VC, 2022 WL 390815, at *1 (N.D. Cal. Feb. 9, 2022). [2] Id. [3] Id. at *5. [4] <a href="https://advance.lexis.com/api/search?q=2022%20U.S.%20Dist.%20LEXIS%2027438&qlang=bool&origination=law360&internalOrigination=article_id%3D1480247%3Bcitation%3D2022%20U.S.%20Dist.%20LEXIS%2027438&originationDetail=headline%3DRulings%2C%20FDA%20Guidance%20May%20Help%20Food%20Cos.%20In%20Protein%20Suits&" target="_blank">Chong v. Kind LLC </a>, No. 21-cv-04528-RS, 2022 WL 464149 (N.D. Cal. Feb. 15, 2022). [5] Id. at *1; <a href="https://advance.lexis.com/api/search?q=2020%20U.S.%20Dist.%20LEXIS%20258880&qlang=bool&origination=law360&internalOrigination=article_id%3D1480247%3Bcitation%3D2020%20U.S.%20Dist.%20LEXIS%20258880&originationDetail=headline%3DRulings%2C%20FDA%20Guidance%20May%20Help%20Food%20Cos.%20In%20Protein%20Suits&" target="_blank">Minor v. Baker Mills Inc. </a>, No. 20-cv-02901-RS, 2020 WL 11564643 (N.D. Cal. Nov. 12, 2020). [6] Chong, 2022 WL 464149, at *1. [7] Id. at *3. [8] Id. at *4. [9] Nacarino v. Kashi Co., No. 22-15377 (9th Cir.) (appeal filed March 14, 2022); Chong v. Kind LLC, No. 22-15368 (9th Cir.) (appeal filed March 11, 2022). [10] See 21 C.F.R. § 101.9(c)(7). [11] Id.

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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Rulings, FDA Guidance May Help Food Cos. In Protein Suits

Rulings, FDA Guidance May Help Food Cos. In Protein Suits

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Originally published by Law360, Claudia Vetesi, Nicole Ozeran, and Lena Gankin authored an article discussing a wave of protein-labeling lawsuits hitting food m

Meta recently agreed to settle one of the longest-running data privacy lawsuits in the United States.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftn1">[1]</a>  The lawsuit challenged the company’s use of cookies to track users, including after they have logged out of their Facebook accounts.  The significance of In re Facebook, Inc. Internet Tracking Litigation, however, is not so much the decade-long litigation in the Ninth Circuit as the proposed settlement, which would require Facebook to “sequester and delete” all user data that was allegedly collected unlawfully during the class period.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftn2">[2]</a>  This form of non-monetary relief seems unprecedented in private privacy class actions in the U.S.  If approved, such relief could be adopted in future actions alleging unlawful data collection.  In this article, we explore some of the corresponding implications.Although novel in U.S. private privacy class cases, the “sequester and delete” requirement is not without recent precedent in regulatory enforcement actions.  The Federal Trade Commission recently announced a settlement requiring a weight loss company to delete not only the unlawfully collected data, but also any algorithms or other work product derived from that data.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftn3">[3]</a>  This was not the first time that deletion was part of a settlement involving the FTC: in January 2021, the same was required in a settlement between the FTC and a photo app.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftn4">[4]</a>  Other varieties of private class action have long resulted in similar relief; for example, under the Fair Debt Collection Practices Act, a debt collector that fails to verify an individual’s debts can be required to contact credit reporting agencies and have the debt deleted from the individual’s credit report.Retaining the subject data following a data privacy lawsuit settlement can have ongoing liability risk with respect to the ongoing use of that data and, as is true in most jurisdictions, it is difficult, if not impossible, to enforce a release covering future liability.  But once the subject data is destroyed, there is no longer a risk of future liability stemming from the use of that data.  For this reason, deletion can be a preventative measure that reduces the likelihood of exposure to future liability.  By the same token, deletion is one way for the defendant to add value to the settlement without incurring additional out-of-pocket costs.Requiring deletion pursuant to a settlement agreement would also provide plaintiffs with a form of relief that may not have been available at trial.  Privacy class actions usually involve statutory claims, in which case the relief sought and granted is limited to what is provided for in the statute (often statutory damages), or claims in contract and tort law. The relief in those cases is also usually monetary relief and/or an injunction to prevent the defendant from continuing the allegedly unlawful act<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftn5">[5]</a> or from disseminating—but not keeping—the inappropriately collected information.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftn6">[6]</a>  An agreement that the defendant will not benefit from the data that has already been taken, however, has not been a common remedy either sought or granted in trial courts.Overall, including deletion as part of a class action settlement concerning unlawful data collection may be trending in the U.S. and for good reason: it may reduce risks and costs to defendants, add value to the settlement, and provide plaintiffs with meaningful forms of relief.Morrison & Foerster law clerk Sophie Barnett contributed to the writing of this post.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftnref1">[1]</a> Motion for Certification of Settlement Class and Preliminary Approval of Class Action Settlement, In re Facebook Internet Tracking Litigation, No. 5:20-MD-2314-EJD (N. D. Cal.), Dkt. No. 232.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftnref2">[2]</a> Id. at 12.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftnref3">[3]</a> Federal Trade Commission, FTC Takes Action Against Company Formerly Known as Weight Watchers for Illegally Collecting Kids’ Sensitive Health Data (March 4, 2022), <a href="https://www.ftc.gov/news-events/press-releases/2022/03/ftc-takes-action-against-company-formerly-known-weight-watchers">https://www.ftc.gov/news-events/press-releases/2022/03/ftc-takes-action-against-company-formerly-known-weight-watchers</a>.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftnref4">[4]</a> Federal Trade Commission, FTC Finalizes Settlement with Photo App Developer Related to Misuse of Facial Recognition Technology (May 7, 2021), <a href="https://www.ftc.gov/news-events/press-releases/2021/05/ftc-finalizes-settlement-photo-app-developer-related-misuse">https://www.ftc.gov/news-events/press-releases/2021/05/ftc-finalizes-settlement-photo-app-developer-related-misuse</a>.<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftnref5">[5]</a> See, e.g., Wolfson v. Lewis, 924 F. Supp. 1413, 1435 (E.D. Pa. 1996).<a href="file:///C:/Users/TLW9/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/A4F48JTY/FINAL%20(Barnett)%20Class%20Dismissed%20Blog%20(003).DOCX#_ftnref6">[6]</a> See, e.g., Michaels v. Internet Ent. Grp., Inc., 5 F. Supp. 2d 823, 842 (C.D. Cal. 1998).

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Jessica’s practice focuses on complex civil litigation, with an emphasis on class action, financial services litigation and enforcement, and commercial disputes. Recent representative matters include the defense of a leading marketplace lender in a putative nationwide class action under state usury laws; a major consumer products company in multidistrict antitrust litigation; a

Jessica Kaufman

Jessica’s practice focuses on complex civil litigation, with an emphasis on class action, financial services litigation and enforcement, and commercial disputes. Recent representative matters include the defense of a leading marketplace lender in a putative nationwide class action under state usury laws; a major consumer products company in multidistrict antitrust litigation; a professional services firm in a malpractice action; a lingerie company facing consumer protection claims, including claims of false advertising; and financial institutions facing claims under the federal and state contract and antitrust laws, RICO Act, Right to Financial Privacy Act, Fair Debt Collection Practices Act, and state unfair and deceptive practices statutes. She also regularly advises and represents clients in complex commercial disputes.What do you like best about your work? Our work is our role as problem solvers. As litigators, we help clients address immediate problems. But when we know our clients and their businesses well, our clients also turn to us for longer term advice, to help identify issues before they arise, and think about how to do things better.What do you enjoy doing in your free time? I try to work with my hands. I started learning wheel-thrown pottery last year and enjoy forcing my family and friends to accept impractically shaped mugs, not just at Christmas, but — lucky for them — all year long.How do you see your practice changing in the next few years? I see my practice including more state AG enforcement work in the years ahead. The regulatory environment for our financial services clients is poised to change dramatically at the federal level; active AGs in New York and California will see that as an opportunity to fill the void.

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Sophie Barnett

Deleting the Data: A Future Trend in Data Privacy Settlements?