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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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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Courts around the country are grappling with <a href="https://www.govinfo.gov/content/pkg/USCODE-2022-title47/pdf/USCODE-2022-title47-chap5-subchapII-partI-sec230.pdf" target="_blank">Section 230 of the Communications Decency Act</a>. Section 230 generally shields online platforms from liability for content posted by third-party users, but courts are now deciding if it can also protect online platforms from product liability claims. Plaintiffs have recently attempted to circumvent Section 230’s robust immunity by bringing claims against online platforms based on theories of product liability, contending that Section 230 cannot protect against such claims.Described by one scholar as the “twenty-six words that created the internet,” Section 230 provides: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words, Section 230 protects online platforms from civil liability for third-party content posted by a platform’s users.The Scope of Section 230Passed in 1996, the Act was created in response to two cases contemplating how to handle online forums where users could post comments. These cases highlighted that existing law was ill-equipped to handle liability issues that accompanied the rise of the internet, and prompted lawmakers to create legislation that would encourage and protect free speech online. Since it was enacted, Section 230 has allowed online platforms to operate without fear of liability for content posted by third parties.Litigants have repeatedly argued over the statute’s scope and the extent of its protections. Yet, in keeping with the deferential language in the statute, courts have consistently construed the protection offered by Section 230 broadly, holding that Section 230 offers online platforms near-total immunity from civil liability for providing a forum for information created by third parties.This expansive understanding of Section 230 has historically required dismissal of practically all claims against internet companies for content posted to their platforms by third-party users.But recently Section 230 has come under increasing fire from the plaintiffs’ bar, who argue that the law as interpreted by courts provides online platforms with too much protection from liability involving user-generated content. In an effort to circumvent these protections, plaintiffs’ attorneys have begun to rebrand claims against online platforms as product liability claims based on the allegation that the platforms are defectively designed “products.”A Traditional Section 230 DefenseA Section 230 defense contains three elements: First, the online platform must be a provider of an interactive computer service, such as a social media website. Second, the cause of action must treat the defendant as the publisher of the content in question. And, third, the content in question must have been provided by someone other than the defendant (generally, a third-party user of the online platform).No one disputes that social media and communications platforms meet the first two elements. The focus is on the third element: whether the content in question was provided by the online platform as a publisher or by a third-party user. Traditionally, courts have dismissed claims against social media companies as barred by Section 230 because the companies cannot be considered the “publishers” of third-party content. As plaintiffs pursue product liability cases, however, they have tried to shift the focus of their claims away from this test.The Product Liability ArgumentRecently, some courts have been forced to evaluate product liability claims against tech companies and online platforms in cases alleging that the platforms are defective “products” rather than publishers of third-party content with Section 230 immunity. Some courts are finding that the inquiry is highly fact-based and cannot be determined on the face of the pleadings, allowing these cases to survive motions to dismiss.But consistent with historic precedent, other courts have continued to reject claims brought against online platforms based on Section 230. These courts have asserted that tech companies are still immune under Section 230, despite plaintiffs’ efforts to re-brand their claims.For example, the Fifth Circuit upheld a lower court’s decision that the defendant could not be liable for sexual abuse that allegedly occurred over its photo-messaging app. Although the plaintiff attempted to characterize their argument as a negligent design claim, the court found that the plaintiff ultimately sought liability for information provided by a third-party user—which Section 230 expressly prohibits.Tech companies have responded to plaintiffs’ attempt to recharacterize Section 230 by setting forth how Section 230 is critical to their business model. Limiting the scope of Section 230’s protection, they caution, would lead to online censorship and curb free speech. Supporters of Section 230’s protections have also noted that permitting claims against online platforms based on theories of product liability would render the Act nearly meaningless and encourage the kind of misdirected litigation that Section 230 was designed to prevent.Looking AheadCourts have had many opportunities to weigh in on Section 230’s ability to foreclose product liability claims, but often sidestep the issue. The Supreme Court has yet to weigh in, but this issue seems prime for future review.Although the weight of authority counsels that Section 230 immunizes editorial content and algorithm recommendations, the Third Circuit recently bucked that trend, finding that the extent to which the software pushes content on users is relevant to the Section 230 inquiry. In August 2024, the Third Circuit found that Section 230 did not immunize TikTok against claims arising from the death of a 10-year-old girl who attempted a self-asphyxiation “blackout challenge” that she saw on the app. The Third Circuit, in reversing the district court’s order granting TikTok’s motion to dismiss, held that Section 230 did not shield TikTok from liability because the platform curates recommendations and “expressive content” to users through its “For You Page” algorithm. TikTok has moved for rehearing en banc, arguing that its algorithm serves a “publisher” function that has long been held to enjoy Section 230 immunity.In 2022, Justice Clarence Thomas <a href="https://fingfx.thomsonreuters.com/gfx/legaldocs/akveadbzzvr/frankel-doevsnap--thomasfacebook.pdf" target="_blank">called for</a> SCOTUS to take up the matter and decide the scope of Section 230, stating: “Assuming Congress does not step in to clarify Section 230’s scope, [the Court] should do so in an appropriate case.” Based on Thomas’s statement and the inconsistency of lower court rulings in recent years, guidance from the Supreme Court seemed imminent. But in July 2024, the Court declined to grant certiorari in a case appealing a Fifth Circuit ruling that prevented the plaintiff from bringing suit against a social media company based on Section 230 immunity. Justice Thomas, joined by Justice Neil Gorsuch, dissented from the Court’s decision not to hear the case, writing, “[M]ake no mistake about it—there is danger in delay. . . . Social-media platforms have increasingly used Section 230 as a get-out-of-jail free card.”Until the issue is settled by the Supreme Court, companies that run online platforms should continue to take precautions to protect themselves from possible product-liability exposure. For example, software developers should carefully consider what warnings might be appropriate on the platform and continue to refine best practices with respect to possible safety concerns as they design this software. We encourage developers to consult with counsel to discuss whether Section 230 can protect against product liability and other safety‑related claims directed at their platforms and will continue to provide updates on these issues.

The Future of Section 230: Protection Against Product Liability Claims?

Fertility Center Litigation

Fitbit

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Lethal Injection Matters – Major Pharmaceutical Company

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Leading Chemical Company

Security Device Company

In re Air Crash Near Peixoto de Azevedo, Brazil

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Co-Chair, Litigation Department

Erin Bosman is the global co-chair of Morrison Foerster’s litigation department. Erin is also the founder and co-head of the Artificial Intelligence group and former chair of the Complex Litigation + Advisement practice group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin M. Bosman

Erin Bosman is the Global Co-Chair of Morrison Foerster’s Litigation Department. Erin is also the founder and co-head of the Artificial Intelligence Group and former chair of the Complex Litigation + Advisement Practice Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin Bosman

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

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Julie Park provides analytic and strategic counsel for issues in product life cycle, product liability and defective products, consumer class actions, and more.

Julie Park

Julie Park | Product Liability Lawyer

Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

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Ashley E. Quinn is an associate in Morrison Foerster’s San Diego office.

Ashley E. Quinn

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Rachel Kaiser is an associate in the Litigation Department of Morrison Foerster’s San Diego office.

Rachel A. Kaiser

Rachel Kaiser

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The Future of Section 230: Protection Against Product Liability Claims?

High Court Orders Rethink Of $9.7M Award After TransUnion

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Passed in 1996, the Act was created in response to two cases contemplating how to handle online forums where users could post comments.

Product Liability

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Internet of Things

On May 23, 2024, the United States Supreme Court decided Coinbase, Inc., v. Suski, No. 23-3, serving a reminder to companies with mandatory consumer-facing arbitration provisions that contractual consistency is a key to enforceability. In Justice Jackson’s unanimous opinion, the Court found that “[w]here parties have agreed to two contracts—one sending arbitrability disputes to arbitration, and the other either explicitly or implicitly sending arbitrability disputes to the courts—a court must decide which contract governs.”This case involved the users of a cryptocurrency exchange platform, Coinbase, Inc. (“Coinbase”), entering into two digital contracts. The first contract, the Coinbase User Agreement (“User Agreement”), contained a delegation clause that provided that any disputes regarding arbitrability would be decided by an arbitrator. The second contract, the Official Rules for the Dogecoin promotional sweepstakes (“Sweepstakes Rules”), contained a forum selection clause that provided sole jurisdiction over sweepstakes-related disputes to the California courts.Plaintiff assented to both the User Agreement and Sweepstakes Rules. But following the sweepstakes, he filed a putative class action in the United States District Court for the Northern District of California alleging that Coinbase misrepresented entrance requirements into the Dogecoin sweepstakes in violation of various California laws. Coinbase moved to compel arbitration and argued that the User Agreement’s delegation clause meant that an arbitrator had to decide any arbitrability challenges to the scope or enforceability of the arbitration provision. But the district court held that it first needed to decide which contract’s dispute resolution provisions applied, since this would determine if the court or an arbitrator should decide who would ultimately hear the case, based on the dueling provisions. The court held that it, not the arbitrator, should determine which contract controlled. The court, applying California state law, then also held that the Sweepstakes Rules’ forum selection clause controlled, denying Coinbase’s motion to compel. The Ninth Circuit Court of Appeals affirmed.On May 23, 2024, the Supreme Court affirmed, explaining that when two contracts conflict as to which one decides the arbitrability of a dispute, this threshold issue must be decided by a court in the first instance. The Court based this decision on “basic legal principles” that “disputes are subject to arbitration if, and only if, the parties actually agreed to arbitrate those disputes.” This includes if the dispute is over arbitrability itself. In other words, “before either the delegation provision or the forum selection clause can be enforced, a court needs to decide what the parties have agreed to—i.e., which contract controls.” Here, this means the issue of whether the parties’ second agreement superseded their earlier agreement regarding who decides arbitrability for the sweepstakes-related disputes is therefore to be decided by the court before referring the dispute to arbitrators.The Court did make clear that their decision was limited in scope, particularly in Justice Gorsuch’s concurrence. They “reaffirm[ed] well-established principles about the primacy of the parties’ agreements when it comes to arbitration,” with their decision turning on the very specific conflict between the two contracts. The Court declined to address the secondary holding that the Sweepstakes Rules’ forum selection clause took precedence over the User Agreement’s arbitration clause, leaving the Ninth Circuit holding in place and leaving the case in the California court.Key takeaways: Companies seeking to enforce arbitration clauses should keep in mind the importance of uniform language across contracts, particularly when it comes to arbitration agreements. In particular, companies with consumer-facing agreements online, which are often supplemented by side promotions or sweepstakes that contain unique terms, need to consider the interplay between these various contracts. As this decision demonstrates, a delegation clause in the initial terms of service does not always guarantee arbitration if companies are not meticulous across all terms and agreements. But the Supreme Court did make clear that this holding is narrow—if the second Sweepstakes Rules contract didn’t exist, the court would have compelled arbitration. So beware of conflicting terms!Read the <a href="https://www.supremecourt.gov/opinions/23pdf/23-3_879d.pdf" target="_blank">Court’s opinion</a>.

Beware of Conflicting Terms: When Customers Entered into Multiple Contracts, SCOTUS Says Courts Must Decide Which One Governs Arbitrability 

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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Jenny Morris is an associate in the Litigation Department of Morrison Foerster’s Washington, D.C. office.

Jenny Morris

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Beware of Conflicting Terms: When Customers Entered into Multiple Contracts, SCOTUS Says Courts Must Decide Which One Governs Arbitrability

On May 23, 2024, the United States Supreme Court decided Coinbase, Inc., v. Suski, No. 23-3, serving a reminder to companies with mandatory consumer-facing arbitration provisions that contractual consistency is a key to enforceability.

Beware of Conflicting Terms: When Customers Entered into Multiple Contracts, SCOTUS Says Courts Must Decide Which One Governs Arbitrability

Arbitration

Erin Bosman, Penelope Preovolos and Brittany Scheinok published an article in Law360 highlighting key class action decisions from 2023 that continued the trend of a more demanding approach to the threshold issue of standing following the U.S. Supreme Court's 2021 decision in TransUnion LLC v. Ramirez. The authors wrote, “Federal appellate courts reversed or vacated lower court decisions regarding named plaintiffs' standing based on the pleadings alone, based on evidence developed during discovery prior to class certification, and even in reversing and remanding a class settlement.”Read the <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt40f8df988220aa24/65949f229fa6cf4874288b1b/231221-most-notable-class-action-standing.pdf" target="_blank">full article</a>.

Energy Drink Manufacturer

Consumer Electronics MDL

Computer Power Management System Litigation

Run Them Sweet, LLC v. CPA Global Limited

Online Billing Practices Class Action

Lipitor Antitrust Litigation

American Booksellers Association v. Barnes &amp; Noble, Inc.


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 pro

Penelope Preovolos

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Brittany Scheinok is a partner in the Litigation Department of the firm’s San Diego office.

Brittany Scheinok

Erin Bosman, Penelope Preovolos and Brittany Scheinok published an article in Law360 highlighting key class action decisions from 2023 that continued the trend of a more demanding approach to the threshold issue of standing following the U.S. Supreme Court's 2021 decision in TransUnion LLC v. Ramirez. 

5 Most Notable Class Action Standing Cases Of 2023

Consumer Products

In a recent 5-4 decision reversing the Ninth Circuit and settling a circuit split, the Supreme Court of the United States in Coinbase v. Bielski held that a district court must stay its proceedings while an interlocutory appeal on the question of arbitrability is ongoing.The Court’s decision reflects the majority view of the Circuit split, where courts granted the stays automatically, while the Ninth Circuit was one of three circuit courts that left the decision of the stay to the discretion of the district judge or court of appeals.Calling it a “common sense” decision, the Justices noted that if a district court could move forward with pre-trial and trial proceedings while the appeal on arbitrability was ongoing, the continuation of proceedings in the district court largely defeated the point of the appeal.Read the <a href="https://www.mofo.com/resources/insights/230801-coinbase-v-bielski-scotus-authorizes-automatic-stays" target="_blank">full client alert</a>.

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Katie L. Viggiani

Coinbase v. Bielski – SCOTUS Authorizes Automatic Stays Pending Decision of Arbitrability