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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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

<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

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 action lawsuits. Claudia also regularly counsels clients in the food, cosmetics, retail, and technology industries. She represents companies in false advertising disputes before the National Advertising Division (NAD) of the Council of Better Business Bureaus, Inc.<h5>More about Claudia</h5>Claudia is active in MoFo’s pro bono efforts, and recently traveled to El Paso, Texas, to work with families separated and detained at the border. She is also supervising a pro bono collaboration with Equal Rights Advocates, a nonprofit fighting for gender justice in work places and schools across the country. The initiative will help students who have been victims of sexual assault, attempted assault, or harassment find support and seek justice. Claudia is also a board member of Bay Area Legal Aid and a former board member of Equal Rights Advocates. Claudia is an editor and frequent contributor to MoFo’s <a href="https://classdismissed.mofo.com/">Class Dismissed</a> blog, which provides reports about the latest defense news, developments, and trends in class action lawsuits and product liability issues that affect consumer-facing companies. Her perspectives are also respected in the larger legal community: Claudia has published articles about class action and false advertising issues, and is a co-author of Chapter 7 — “Unfair Competition in California Business Litigation 2016” — of The Recorder. She also regularly speaks at conferences on class action and advertising trends. Claudia is currently serving as a Lawyer Representative for the Northern District of California. She received her J.D. degree in 2004 from Berkeley Law (Boalt Hall School of Law), where she was an associate editor of the Berkeley Technology Law Journal.

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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 matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class actions.

Claudia M. Vetesi

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

Adam J. 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.Mr. Hunt has extensive experience representing consumer products companies, financial institutions, and technology firms in class action cases and complex commercial disputes before state and federal trial courts, as well as in arbitrations. Clients seek Mr. Hunt’s counsel for his creative, strategic thinking in high-stakes, high-profile matters. He has represented clients facing claims under false advertising, antitrust, and privacy laws throughout the country, securing wins at the pleading stage, summary judgment, and trial, in addition to negotiating favorable settlements, often early in the case. Representative experience includes successfully securing rulings dismissing two putative false advertising class action cases against one of the best-known consumer electronics companies in the world; obtaining a complete win on summary judgment for a major shipping and logistics company in a multimillion-dollar commercial dispute; appearing as counsel at trial for a leading financial institution in a $100 million commercial dispute, winning a bench trial verdict; and prevailing on motions to dismiss false advertising class actions against a leading Greek yogurt company.Mr. Hunt is also an editor of the firm’s <a href="https://classdismissed.mofo.com/" target="_self">Class Dismissed blog</a>, which provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class action lawsuits that affect consumer-facing companies.Mr. Hunt maintains an active pro bono practice and is the recipient of the New York State Bar Association’s 2017 President’s Pro Bono Service Award for the First Judicial Department, the 2018 Public Service Award from New York University School of Law, and Morrison Foerster’s Kathi Pugh Award for Pro Bono Services.Mr. Hunt received his B.A. with honors from Swarthmore College and his J.D. cum laude from New York University.

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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

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In the sprawling National Prescription Opiate Litigation (MDL 2804), proponents of a “negotiation class” recently asked the Sixth Circuit for en banc review of 

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A Rule 23 Negotiation Class? Not So Fast!

A Rule 23 Negotiation Class? Not So Fast! | Class Dismissed

In the sprawling National Prescription Opiate Litigation (MDL 2804), proponents of a “negotiation class” recently asked the Sixth Circuit for en banc review of a September 2020 decision that struck down the novel class mechanism. Arguing that the 2-1 panel decision imposed an impermissibly rigid “top-down” interpretation of the Federal Rules, in conflict with Sixth Circuit and Supreme Court precedent, class proponents urged the full court to review and allow the negotiation class to proceed.Case BackgroundThe opioid MDL is possibly one of the most complex cases in U.S. history. Pending in the Northern District of Ohio before Judge Dan A. Polster, the MDL encompasses over 2,000 cases filed by 33,000 city and county governments against drug manufacturers, distributors, and pharmacies to recoup costs of addressing the opioid crisis.From the MDL’s outset, Judge Polster encouraged settlement. To that end, the court appointed the late Duke Law Professor Francis McGovern as special master to oversee settlement negotiations. Professor McGovern quickly found that settlement of such sprawling litigation presented intractable problems: How could defendants achieve “global peace”? And in a case with “heterogeneous” class members—some with big claims and many with small claims—how could the court encourage cooperation among plaintiffs and avoid hold-outs? Out of this came a novel idea: the negotiation class.The Novel Negotiation ClassWorking with Harvard Law Professor William Rubenstein, a court-appointed expert on class-certification issues, Professor McGovern developed and explained his idea for negotiation-class certification in a law review article and pitched the approach to a group of opioid MDL plaintiffs.[1] Under the new negotiation class mechanism, plaintiffs would develop: (1) a plan to allocate any lump-sum settlement among class members; and (2) a plan to vote on settlement offers they might receive. They then would ask the court to certify a “negotiation class” according to the normal Rule 23 factors and to issue a class notice to explain the distribution and voting plans, giving class members the opportunity to opt out. After certification, plaintiffs would negotiate with defendants, and any settlement would be put to a binding vote by class members who had not opted out.As Professor Rubenstein explains it, the proposition to plaintiffs is this: “We can’t tell you exactly how much you’re going to get. But we can tell you what percentage of the settlement you’ll get. And we can safeguard your rights by making sure when a settlement is finally achieved every class member will get to vote on the settlement.”[2] Meanwhile, for defendants, the negotiation class sets the scope of the settling class prior to discussing settlement amounts, letting the defendants know how much peace a settlement actually buys them.A group of opioid MDL plaintiffs pursued the idea and, in the summer of 2019, asked Judge Polster to approve a negotiation class, which he did in a September 2019 order.[3] Judge Polster recognized that the negotiation class was novel. But he reasoned that Rule 23 does not explicitly limit the uses of class actions and “neither specifies that the class to be certified [must be] for ‘trial’ or ‘settlement’ purposes.”[4] Rule 23’s history also supported new uses of the class mechanism, because, as Judge Polster explained, certification of settlement classes was itself a novel practice shortly after Rule 23 was adopted in 1966.[5] In fact, Rule 23 contained no explicit reference to settlement classes until 2018, when amendments fleshed out settlement class procedures to better capture existing practices.[6] And the Supreme Court had long accepted settlement classes as a “stock device” well before the 2018 amendments.[7]Judge Polster noted that, as a practical matter, the settlement class would only provide an option to facilitate settlement discussions, and would not stop any parties from continuing to litigate or pursuing their own settlement discussions, if they preferred. He found that “there is nothing coercive about this process” because “no Defendant has to employ it.”[8] To be fair, however, defendants might have reasonably feared that even this novel form of certification could strengthen plaintiffs’ hand by laying groundwork for any eventual motion to certify classes for trial, should negotiations fall through.Panel Review at the Sixth CircuitThe Sixth Circuit panel reviewing Judge Polster’s order had a less sanguine view of Rule 23’s flexibility. In September 2020, a 2-1 panel majority applied a textualist approach to reverse the certification order.[9] The majority treated Rule 23 effectively as a statute (because the Rules are promulgated pursuant to the Rules Enabling Act) and purported to enforce it according to its plain terms. This, the court held, required striking down the negotiation class because the new form of class action was “untethered” to any express authorizing language in Rule 23.[10] As for the argument that settlement class certification arose—and was judicially blessed—before Rule 23 ever said anything to authorize settlement classes, the majority disagreed. Prior to the 2018 amendments, Rule 23(e) had read:A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class. . . .Therefore, the Rule contemplated courts overseeing “compromised” class actions. And, for the majority, authority over “compromised” class actions implicitly authorized courts to certify classes for the purpose of settling them.[11]The rest of the majority opinion focused on the structure of Rule 23 and ways that the negotiation class did not fit the traditional analyses lower courts must apply to certify trial, settlement, or issue classes. In effect, Judge Polster had tried to shoehorn something new into existing federal common law rules that simply were not made for it.The Panel DissentSixth Circuit Judge Karen Nelson Moore dissented, presenting a dramatically different view of how the Federal Rules work by arguing that judges are not and have never been bound to strict textualist interpretations of the Rules, in large part because the Rules are not statutes and are not issued by Congress.Walking through the “origin story [and] life cycle” of the Rules, the dissent highlighted instances where courts “drew on traditions of equity practice” and flexibly applied the Rules by “placing substance over form.”[12] For instance, the Rules don’t expressly authorize courts to recall a jury for further deliberations, to hear a motion in limine, or to dismiss cases for forum non conveniens. But the Supreme Court blessed each of these practices as they arose through “district court creativity.”[13]  Other Rules were interpreted contrary to plain text and altered through court practice. For example, the Court fashioned the attorney work-product exception to Rule 26 discovery in opposition to the Rule’s plain text, until the Rule was amended in 1970.[14] The Court modified Rule 56’s summary judgment standards in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), to avoid a plain-text interpretation that guaranteed summary judgment rarely would be granted. (The modified summary-judgment standard would not be incorporated into Rule 56’s text until amendments in 2009).[15]Judge Moore argued that the same was true of Rule 23. She recited a host of articles and cases acknowledging that Rule 23, when adopted, “lacked any mention of ‘settlement,’ delineated no procedures to be followed for different kinds of class actions, and ‘contain[ed] no standards at all governing judicial approval of class action settlements.’”[16] But, Judge Moore explained, “[a]s settlement class actions flooded the dockets” the courts of appeal quickly “recognize[d] that settlement classes had ‘utility,’ . . . ‘afford[ed] considerable economies to both the litigants and the judiciary[,] and [are] also fully consistent with the flexibility integral to Rule 23.’”[17] According to Judge Moore, the creation and certification of a novel negotiation class, particularly in a complex MDL, “simply follows the incremental development of settlement class actions” and is no less authorized under Rule 23 than settlement classes ever were.En Banc ApplicationIn October 2020, a group of plaintiffs filed for en banc review. Relying heavily on Judge Moore’s dissent, they argued that the panel majority had misconstrued both the history of Rule 23 and the flexibility district courts arguably enjoy in applying the Federal Rules. Plaintiffs questioned how the majority could use a strict textualist interpretation to find that a single use of the word “compromised” in the old version of Rule 23—a thin textual reed—had authorized settlement class certification. This was particularly notable when, as Judge Moore had explained in dissent, every prior court to have addressed the question found no textual authorization for settlement classes.[18] Moreover, even if the majority was right, and settlement class certification could be derived from the term “compromise,” surely negotiation class certification could be derived similarly from the term “settlement,” because negotiation is always a critical part of settlement.Whether the Sixth Circuit will take up the en banc petition remains to be seen. Given the size and complexity of the opioid MDL, and the novelty of the negotiation class issue, the petition likely meets the Sixth Circuit’s standard for rehearing matters of exceptional importance. En banc rehearing, however, is rare. Negotiation class certification could prove to be an inventive and useful tool in complex litigation, though it may have to wait for other litigants to try in another circuit.[1] The Negotiation Class: A Cooperative Approach to Class Actions Involving Large Stakeholders, 99 TEX. L. REV. (forthcoming 2020), <a href="https://ssrn.com/abstract=3403834">https://ssrn.com/abstract=3403834</a>.[2] Francis McGovern, Elizabeth Burch, and William Rubenstein, The Negotiation Class, Judicature, vol. 104 no. 1 (Spring 2020), <a href="https://judicature.duke.edu/articles/the-negotiation-class/">https://judicature.duke.edu/articles/the-negotiation-class/</a>.[3] In re Nat’l Prescription Opiate Litig., 332 F.R.D. 532 (N.D. Ohio 2019).[4] Id. at 539.[5] Id. at 539–540.[6] Id.[7] Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 618 (1997).[8] 332 F.R.D. at 537.[9] No. 19-4097, 2020 WL 5701916 (6th Cir. Sept. 24, 2020).[10] Id. at *5 (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 363 (2011) (mere negative inference in Rule 23’s text did not allow certification of (b)(2) class for money damages in addition to injunctive relief) and Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997) (“Courts are not free to amend a rule outside the process Congress ordered.”)).[11] Id. at *6.[12] No. 19-4097, 2020 WL 5701916, at *9 (6th Cir. Sept. 24, 2020) (Moore, J. dissenting).[13] Id. at *10.[14] Id. (citing Hickman v. Taylor, 329 U.S. 495, 505 (1947)).[15] Id.[16] Id. at *13 (quoting William W Schwarzer, Settlement of Mass Tort Class Actions: Order Out of Chaos, 80 Cornell L. Rev. 837, 841 (1995)).[17] Id. (quoting Amchem, 521 U.S. at 618 and In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 794 (3d Cir. 1995)).[18] Petition for Rehearing En Banc at 10–11, Nos. 19-4097/19-4099 (6th Cir.), ECF No. 97.