Morrison Foerster’s Class Dismissed blog provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class actions lawsuits and product liability issues that affect consumer-facing companies. Through Class Dismissed, attorneys from our nationally recognized Consumer Class Action and Products Liability practices offer a real-time assessment of the developments in matters that are shaping the industry. This blog examines the full spectrum of consumer-related class action and product liability lawsuits ranging from false advertising, privacy, consumer product safety, ADA, food misbranding, TCPA, environment, retail, and government actions as well as nationwide and multidistrict litigation class actions.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Partner

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

Adam Hunt

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

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Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

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Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

Zak is an associate in the Litigation Department in Morrison Foerster’s New York office.Zak’s practice focuses on class actions, commercial litigation, white collar defense, government investigations, and antitrust litigation and counseling. He has represented clients before federal and state courts in complex commercial matters, as well as in arbitration tribunals.Zak received his J.D. from New York University School of Law in 2018, where he was inducted into the Order of the Barristers. During law school, Zak also served as the Marden executive editor for the NYU Law Moot Court Board. In 2013, Zak received his B.A. and M.A. in political science from Yale University, receiving honors in his major and the Ellsworth Prize for Best Senior Essay in the Social Sciences.

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Associate

Zak Newman

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

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Mitchell Hokanson

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Software Gains New Status as a Product Under Strict Liability Law

MAHA Commission Publishes Report to Highlight Childhood Chronic Disease Drivers

Tenth Circuit Denies Challenge to CPSC Rule Regulating High-Powered Magnets

Ousted CPSC Democrats Fight Back Against President Trump

Setting Consumer Standards for Lithium-Ion Batteries Act

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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 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

Appellate & Supreme Court

The Supreme Court on Monday signaled to the lower courts that they need to seriously consider the impact of TransUnion LLC v. Ramirez, 594 U.S. ___ (2021) when addressing claims for statutory violations that do not result in any injury to the plaintiffs.In 2017, a trial court certified a class of thousands of individuals who received a mortgage with Quicken Loans (now called Rocket Mortgage) from 2004 to 2009, and granted summary judgment in favor of those class members.  The result was a multimillion-dollar judgment against Quicken Loans. And the trial court reached that result despite the Supreme Court’s 2016 ruling in Spokeo v. Robins, holding that a bare procedural violation is insufficient to demonstrate a “concrete and particularized” injury. On Monday, however, the United State Supreme Court undid the judgment and called into question the viability of plaintiffs’ entire case in a mere two sentences:The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of TransUnion LLC v. Ramirez, 594 U.S. ___ (2021).Rocket Mortg., LLC v. Alig, 2022 U.S. LEXIS 156, *1 (Jan. 10, 2022).As we <a href="https://classdismissed.mofo.com/topics/relief-for-the-unharmed-supreme-court-considers-whether-article-III--rule-23-permit-certification-where-most-class-members-are-uninjured-ramirez-v-transunion.html">previously reported</a>, in TransUnion v. Ramirez, the Supreme Court applied Spokeo in the class action context and clarified that (1) a concrete injury is a “physical, monetary, or cognizable intangible harm traditionally recognized as providing a basis for a lawsuit in American courts”; and (2) that the “material risk of harm” alone is typically insufficient to constitute a concrete injury.  Leveraging that decision, Quicken Loans petitioned the Supreme Court to review the Fourth Circuit’s ruling upholding, in large part, the trial court’s almost $10 million judgment and class certification decision.  Quicken Loans argued that, because a significant portion of the class lacked concrete harm, pursuant to TransUnion, the judgment and certification order should be vacated.Indeed, in its order, the Fourth Circuit had acknowledged that there was no evidence that Quicken Loans’ practices caused any harm to the unnamed class members.  Instead, the circuit court concluded that Quicken Loans’ conduct created the risk of harm to class members, and found the risk sufficient for Article III standing for the entire class.But that wasn’t enough for the Supreme Court, which sent the case back to the Fourth Circuit for reconsideration. The High Court’s terse order in Quicken Loans solidifies that the existence of a significant number of unharmed class members can be a hurdle to class certification.  What constitutes a “significant number,” however, remains to be clarified.  Stay tuned for an update when the Fourth Circuit issues a new ruling on remand.

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High Court Orders Rethink Of $9.7M Award After TransUnion

High Court Orders Rethink Of $9.7M Award After TransUnion

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The Supreme Court on Monday signaled to the lower courts that they need to seriously consider the impact of TransUnion LLC v. Ramirez, 594 U.S. ___ (2021) when 

2021 marked another year of important developments in the TCPA landscape as lower courts issued conflicting interpretations of SCOTUS’s ruling Barr v. 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.The Dust Has Not Settled on Whether Defendants Can Be Held Liable for Robocalls Made Between 2015 and July 2020 Following SCOTUS’s Landmark Decision in AAPC.In the wake of the Supreme Court’s decision in Barr v. American Association of Political Consultants, Inc. (“AAPC”), 140 S. Ct. 2335 (2020), lower courts have continued to grapple with the question of whether plaintiffs can assert Telephone Consumer Protection Act (TCPA) claims for conduct occurring between 2015 and July 2020—the time period between when the government-backed debt exception amendment to the TCPA was passed and the date that the Supreme Court declared it unconstitutional. A split among district courts quickly emerged. One line of cases followed an early Eastern District of Louisiana decision, Creasy v. Charter Communications, Inc.<a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html#_ftn1">[1]</a>, in holding that there could be no liability imposed for calls occurring during the contested five-year time period.<a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html#_ftn2">[2]</a> But the majority of district courts declined to adopt Creasy’s reasoning, instead finding that AAPC did not negate the liability of parties that made robocalls during that time period.<a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html#_ftn3">[3]</a>To learn more, read out <a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html">client alert</a>.

Privacy Litigation 2021 Year in Review: TCPA Litigation

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2021 marked another year of important developments in the TCPA landscape as lower courts issued conflicting interpretations of SCOTUS’s ruling Barr v. AAPC and 

Privacy

A split panel of the Ninth Circuit vacated in part a <a href="https://elc.mofo.com/topics/Federal_Court_Preliminarily_Enjoins_the_Attorney_General_from_Enforcing_AB_51.html">preliminary injunction</a> barring enforcement of AB 51, the California law banning mandatory employment arbitration agreements.[1]  But the Ninth Circuit found that the penalties for violation of this provision are preempted by the Federal Arbitration Act (FAA), so the enforcement path remains unclear.Read the original blog post <a href="https://elc.mofo.com/topics/Not-so-fast-ninth-circuit-resurrects-ban-on-mandatory-employment-arbitration-agreements.html">here</a>.

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Not So Fast: Ninth Circuit Resurrects Ban On Mandatory Employment Arbitration Agreements

Not So Fast: Ninth Circuit Resurrects Ban On Mandatory Employment Arbitration Agreements

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A split panel of the Ninth Circuit vacated in part a preliminary injunction barring enforcement of AB 51, the California law banning mandatory employment arbitr

Arbitration

When can you compel arbitration of a putative class action? The law is developing quickly<a href="#_ftn1" name="_ftnref1" id="_ftnref1">[1]</a> and still doesn’t provide a crystal clear answer. The Ninth Circuit recently weighed in on two cases examining what happens when the parties don’t have an arbitration agreement to begin with. In Stafford v. Rite Aid Corporation and Franklin v. Community Regional Medical Center, et al., the defendants sought to compel arbitration on the basis of equitable estoppel, based on arbitration agreements between the defendants and third parties. The Ninth Circuit affirmed the district court’s denial of the motion to compel arbitration in Stafford but came to the opposite conclusion in Franklin. The decisions show that the nature of the parties’ business and relationships, and the allegations in the complaint, can shape whether a dispute is arbitrable.<h3>STAFFORD V. RITE AID CORPORATION</h3>The Parties’ Relationship and Claims at Issue:Plaintiff Byron Stafford filed a putative class action against Rite Aid Corporation, alleging that it had fraudulently inflated the reported prices of prescription drugs to insurance companies. This practice allegedly resulted in plaintiff and others being overcharged for co-payments to Rite Aid.<a href="#_ftn2" name="_ftnref2" id="_ftnref2">[2]</a> According to plaintiff, Rite Aid submitted claims for prescription drugs to the insurance company through its pharmacy benefits manager, who coordinated insurance reimbursements and co-payment calculations. The price on a claim form submitted to the pharmacy benefits manager allegedly determined the price that plaintiff was charged for his prescription drugs. Plaintiff claimed that because Rite Aid reported an improperly high price to the pharmacy benefits manager, Stafford paid more for the drugs than he should have. Based on these allegations, plaintiff asserted claims against Rite Aid under California’s Unfair Competition Law and the California Consumer Legal Remedies Act and for unjust enrichment and negligent misrepresentation.Rite Aid and plaintiff did not have a contract between them containing an arbitration clause. But, Rite Aid moved to compel arbitration based on the theory of equitable estoppel, arguing that plaintiff’s claims were intertwined with Rite Aid’s contracts with the pharmacy benefits managers, which contained arbitration clauses, and thus plaintiff’s claims were subject to arbitration. Under California law, plaintiffs can be bound by arbitration clauses in contracts they did not sign if the claims asserted are “dependent upon, or founded in and inextricably intertwined with, the underlying contractual obligations of the agreement contained the arbitration clause.”<a href="#_ftn3" name="_ftnref3" id="_ftnref3">[3]</a>The Ninth Circuit Affirms the Denial of Rite Aid’s Motion to Compel:The district court denied Rite Aid’s motion to compel, finding that the principles of equitable estoppel did not bind plaintiff to the arbitration provisions in contracts he did not sign because his claims were based on Rite Aid’s alleged fraudulent actions rather than any breach of Rite Aid’s contracts with the pharmacy benefits managers. Rite Aid appealed, and the Ninth Circuit affirmed.The Ninth Circuit similarly held that equitable estoppel was inapplicable to plaintiff’s claims because he was not seeking damages for Rite Aid’s breach of its contracts with the pharmacy benefits managers, but rather for Rite Aid’s alleged fraud. The Ninth Circuit therefore found “irrelevant” Rite Aid’s contracts with the pharmacy benefits managers because “Rite Aid’s duty not to commit fraud is independent from any contractual requirements with the pharmacy benefits managers.”<a href="#_ftn4" name="_ftnref4" id="_ftnref4">[4]</a> Because plaintiff’s claims did not depend on Rite Aid’s contractual obligations, the Court held that equitable estoppel did not bind plaintiff to the arbitration agreements in contracts to which he was not a party.<h3>FRANKLIN V. COMMUNITY REGIONAL MEDICAL CENTER, ET AL.</h3>The Parties’ Relationship and Claims at Issue:The same day Stafford came out, the Ninth Circuit issued its opinion in Franklin, a putative wage and hour lawsuit asserting claims under the Fair Labor Standards Act and California law.<a href="#_ftn5" name="_ftnref5" id="_ftnref5">[5]</a> Plaintiff was employed as a nurse by staffing agency United Staffing Solutions Inc. (“USSI”), and USSI assigned her to work at the defendant hospital. USSI and plaintiff signed two arbitration agreements—one in her employment agreement and another in the assignment contract governing her wages, overtime, shifts, and reimbursements at the hospital. The hospital was not a signatory to either contract, and no contracts existed between either (a) the hospital and plaintiff or (b) the hospital and USSI. Instead, the hospital contracted with a managed service provider to source nursing staff like plaintiff, and the managed service provider in turn contracted with USSI to provide the nursing staff for the hospital. Under this multi-party arrangement, the hospital retained supervision over plaintiff, but did not pay her directly. Rather, the hospital paid the managed service provider, which then paid USSI, which then paid plaintiff for her work.<div align="center" style="margin-bottom: 15px;"><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt1c85f96dfef80244/627315da8e09542a15b7de7b/210528-class-dismissed.gif?format=auto&quality=60" alt="Arbitration Chart" type="asset" sys-style-type="download"></div>In 2018, plaintiff filed a putative class and collective action against the hospital, alleging violations of the FLSA, California Labor Code, and California Unfair Competition law for the hospital’s purported failure to pay plaintiff for work she performed during meal breaks and off the clock, failure to provide accurate itemized wages statements, and failure to reimburse her for travel expenses. The hospital moved to compel arbitration of plaintiff’s claims.The Ninth Circuit Affirms the Compelling Plaintiff’s Claims to Arbitration:The district court granted the hospital’s motion to compel arbitration under the theory of equitable estoppel. It found that even though the hospital was a non-signatory to the arbitration provisions between Franklin and USSI, plaintiff’s statutory claims against the hospital were intimately founded in and intertwined with her contracts with USSI. Plaintiff appealed, and the Ninth Circuit affirmed.The Ninth Circuit ultimately followed the California Court of Appeal’s decision in Garcia v. Pexco, LLC, 217 Cal. Rptr. 3d 793 (Ct. App. 2017), which held that an employee’s Labor Code claims against a staffing agency’s non-signatory client were subject to arbitration because they were “intimately founded in and intertwined with” his employment contract with the staffing agency that contained binding arbitration provisions. The Ninth Circuit in Franklin found that “[i]t does not matter that Franklin’s allegations are leveled only at the Hospital and not USSI” because “[i]n matters of equity, such as the application of equitable estoppel, it is the substance of the plaintiff’s claim that counts, not the form of its pleading.”<a href="#_ftn6" name="_ftnref6" id="_ftnref6">[6]</a> Based on the allegations and claims asserted in the complaint, the Court found that plaintiff’s employment with USSI “is central to her claims.”<a href="#_ftn7" name="_ftnref7" id="_ftnref7">[7]</a> Because USSI was responsible for various employment practices plaintiff alleged were violated (including paying her), and plaintiff’s other claims required reference to the terms of her contracts with USSI, plaintiff could not avoid arbitration simply because she had sued only the hospital and omitted any mention of USSI in her complaint.<h3>TAKEAWAYS</h3>Stafford and Franklin are reminders that the way a company structures its business and contractual relationships can subject even the most carefully drafted arbitration provisions to an uncertain future. Applying the same principles of equitable estoppel, the Stafford court found the plaintiff’s fraud-based claims were not subject to arbitration, while the Franklin court found the plaintiff’s employment-related claims must be arbitrated. These two decisions—issued the same day by the same Court (albeit different panels of judges)—demonstrate the fact-specific analysis involved if a motion to compel is not based on a direct agreement containing an arbitration provision between the plaintiff and defendant.Morrison & Foerster’s Class Actions and Mass Torts attorneys have advised companies on a variety of arbitration-related issues. They can provide further insights on these recent court decisions, share best practices, and help draft and present arbitration provisions based on the needs of your business.<a href="#_ftnref1" name="_ftn1" id="_ftn1">[1]</a> See, e.g., our October 2020 post on how appellate courts have addressed “delegation clauses” in arbitration agreements. Available at <a href="https://classdismissed.mofo.com/topics/recent-appellate-decisions-on-delegation-clauses-arbitration-agreements.html">https://classdismissed.mofo.com/topics/recent-appellate-decisions-on-delegation-clauses-arbitration-agreements.html</a>.<a href="#_ftnref2" name="_ftn2" id="_ftn2">[2]</a> See generally Stafford v. Rite Aid Corp., No. 20-55333, 2021 WL 2024511 (9th Cir. May 21, 2021).<a href="#_ftnref3" name="_ftn3" id="_ftn3">[3]</a> Id. at *3 (quoting Goldman v. KPMG, LLP, 92 Cal. Rptr. 3d 534, 542 (Ct. App. 2009)).<a href="#_ftnref4" name="_ftn4" id="_ftn4">[4]</a> Id. at *4.<a href="#_ftnref5" name="_ftn5" id="_ftn5">[5]</a> See generally Franklin v. Cmty. Reg'l Med. Ctr., No. 19-17570, 2021 WL 2024516 (9th Cir. May 21, 2021).<a href="#_ftnref6" name="_ftn6" id="_ftn6">[6]</a> Id. at *6.<a href="#_ftnref7" name="_ftn7" id="_ftn7">[7]</a> Id.

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One Estopp Shop: The Ninth Circuit Weighs in on the Use of Equitable Estoppel to Compel Arbitration in Two Recent Decisions

Relief for the Unharmed: Supreme Court Considers Whether Article III & Rule 23 Permit Certification Where Most Class Members are Uninjured (Ramirez v. TransUnion)

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When can you compel arbitration of a putative class action? The law is developing quickly and still doesn’t provide a crystal clear answer. The Ninth Circuit re

One Estopp Shop: The Ninth Circuit Weighs in on the Use of Equitable Estoppel to Compel Arbitration in Two Recent Decisions

The Federal Trade Commission (FTC) is laying the groundwork to test the scope of its rulemaking authority. On March 25, 2021, FTC Acting Chairwoman Rebecca Slaughter (D) formed a group within the agency’s Office of the General Counsel to centralize FTC rulemakings. In announcing the change, Slaughter said that it was “time for the Commission to activate its unfair methods of competition rulemaking authority” and that she is “excited for this new rulemaking group to explore all the possibilities.”<a name="_ftnref1" id="_ftnref1" href="https://www.mofo.com/resources/insights/210512-ftc-privacy-rulemaking.html#_ftn1" style="box-sizing: border-box;color: rgb(3, 65, 147);text-decoration-line: none;transition-duration: 0.2s;transition-timing-function: ease-in-out;transition-delay: 0s;transition-property: color;font-size: 16px;">[1]</a>Read our <a href="https://www.mofo.com/resources/insights/210512-ftc-privacy-rulemaking.html">client alert</a>.  <a href="https://www.mofo.com/resources/insights/210512-ftc-privacy-rulemaking.html#_ftnref1" id="_ftn1" name="_ftn1" style="box-sizing: border-box;color: rgb(3, 65, 147);text-decoration-line: none;background-color: transparent;transition-duration: 0.2s;transition-timing-function: ease-in-out;transition-delay: 0s;transition-property: color;">[1]</a> Press Release, Fed. Trade Comm’n, “FTC Acting Chairwoman Slaughter Announces New Rulemaking Group” (March 25, 2021), <a target="_blank" href="https://www.ftc.gov/news-events/press-releases/2021/03/ftc-acting-chairwoman-slaughter-announces-new-rulemaking-group" style="box-sizing: border-box;color: rgb(3, 65, 147);text-decoration-line: none;background-color: transparent;transition-duration: 0.2s;transition-timing-function: ease-in-out;transition-delay: 0s;transition-property: color;">https://www.ftc.gov/news-events/press-releases/2021/03/ftc-acting-chairwoman-slaughter-announces-new-rulemaking-group</a>.

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

Julie O'Neill

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

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FTC & Privacy: Will the FTC's Rulemaking Push Result in New Privacy Rules?

FTC & Privacy: Will the FTC's Rulemaking Push Result in New Privacy Rules?

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The Federal Trade Commission (FTC) is laying the groundwork to test the scope of its rulemaking authority. On March 25, 2021, FTC Acting Chairwoman Rebecca Slau

The Federal Trade Commission (FTC) appears poised to begin testing the scope of its rulemaking authority, including new substantive competition rules for the first time in decades.<a id="_ftnref1" name="_ftnref1" href="https://www.mofo.com/resources/insights/210511-ftc-lays-groundwork-rulemakings.html?utm_source=publication&utm_medium=email#_ftn1" class="anchor" style="box-sizing: border-box;color: rgb(3, 65, 147);text-decoration-line: none;transition-duration: 0.2s;transition-timing-function: ease-in-out;transition-delay: 0s;transition-property: color;font-size: 16px;">[1]</a> On March 25, 2021, FTC Acting Chairwoman Rebecca Slaughter (D) formed a group within the agency’s Office of the General Counsel to centralize FTC rulemakings. In announcing the change, Slaughter said that it was “time for the Commission to activate its unfair methods of competition rulemaking authority,” and that she is “excited for this new rulemaking group to explore all the possibilities.”<a id="_ftnref2" name="_ftnref2" href="https://www.mofo.com/resources/insights/210511-ftc-lays-groundwork-rulemakings.html?utm_source=publication&utm_medium=email#_ftn2" class="anchor" style="box-sizing: border-box;color: rgb(3, 65, 147);text-decoration-line: none;transition-duration: 0.2s;transition-timing-function: ease-in-out;transition-delay: 0s;transition-property: color;font-size: 16px;">[2]</a> Read our <a href="https://www.mofo.com/resources/insights/210511-ftc-lays-groundwork-rulemakings.html?utm_source=publication&utm_medium=email">client alert</a>.  <a id="_ftn1" name="_ftn1" href="https://www.mofo.com/resources/insights/210511-ftc-lays-groundwork-rulemakings.html?utm_source=publication&utm_medium=email#_ftnref1" class="offset" style="box-sizing: border-box;color: rgb(3, 65, 147);text-decoration-line: none;background-color: transparent;transition-duration: 0.2s;transition-timing-function: ease-in-out;transition-delay: 0s;transition-property: color;">[1]</a> See “Discriminatory Practices in Men’s and Boys’ Tailored Clothing Industry,” 16 CFR Part 412 (1968).  Note that this rule was repealed in 1994.  See Notice of Rule Repeal, 59 Fed. Reg. 8527 (Feb. 23, 1994).<a id="_ftn2" name="_ftn2" href="https://www.mofo.com/resources/insights/210511-ftc-lays-groundwork-rulemakings.html?utm_source=publication&utm_medium=email#_ftnref2" class="offset" style="box-sizing: border-box;color: rgb(3, 65, 147);text-decoration-line: none;background-color: transparent;transition-duration: 0.2s;transition-timing-function: ease-in-out;transition-delay: 0s;transition-property: color;">[2]</a> Press Release, Fed. Trade Comm’n, “FTC Acting Chairwoman Slaughter Announces New Rulemaking Group” (March 25, 2021), <a href="https://www.ftc.gov/news-events/press-releases/2021/03/ftc-acting-chairwoman-slaughter-announces-new-rulemaking-group" target="_blank" style="box-sizing: border-box;color: rgb(3, 65, 147);text-decoration-line: none;background-color: transparent;transition-duration: 0.2s;transition-timing-function: ease-in-out;transition-delay: 0s;transition-property: color;">https://www.ftc.gov/news-events/press-releases/2021/03/ftc-acting-chairwoman-slaughter-announces-new-rulemaking-group</a>

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Co-chair Global Antitrust Law Practice Group

Alex Okuliar is Co-Chair of Morrison Foerster’s Global Antitrust Law Practice Group. He is the former Deputy Assistant Attorney General for Civil Antitrust Enforcement at the U.S. Department of Justice and a former advisor at the Federal Trade Commission.

Alexander Okuliar

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Joseph Folio is a trial lawyer and partner in Morrison Foerster’s Global Antitrust Law, Crisis Management, and Privacy + Data Security Groups, with more than a dozen years of experience leading complex government investigations and high-profile litigation.

Joseph Charles Folio III

Joseph Folio III

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FTC Lays Groundwork for Rulemakings: Are New Substantive Competition Rules Coming?

AMG Capital v. FTC – SCOTUS Strips the FTC of a Critical Enforcement Tool

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The Federal Trade Commission (FTC) appears poised to begin testing the scope of its rulemaking authority, including new substantive competition rules for the fi

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FTC Lays Groundwork for Rulemakings: Are New Substantive Competition Rules Coming?

Antitrust

Mass Torts

In a unanimous decision reversing the Ninth Circuit, the Supreme Court in <a target="_blank" href="https://www.supremecourt.gov/opinions/20pdf/19-508_l6gn.pdf" style="box-sizing: border-box;color: rgb(3, 65, 147);text-decoration-line: none;transition-duration: 0.2s;transition-timing-function: ease-in-out;transition-delay: 0s;transition-property: color;font-size: 16px;">AMG Capital v. FTC</a> ended a federal circuit split and squarely held that the FTC lacks authority to pursue equitable monetary relief in federal court under Section 13(b) of the Federal Trade Commission Act (the “Act”). The Ninth Circuit had upheld a permanent injunction against defendant Scott Tucker’s payday loan business for engaging in unfair and deceptive practices, holding that Section 13(b) allowed for “ancillary relief,” including restitution, and affirming a $1.27 billion restitution and disgorgement award. But the Supreme Court held that Section 13(b), by its language and structure, does not give the FTC the power to seek equitable monetary relief such as restitution or disgorgement. The justices stressed that the FTC remains free to seek restitution through the powers originally granted by the Act (pursuant to Sections 5 and 19), but only after conducting a more onerous proceeding before an agency in-house administrative law judge.Read our <a href="https://www.mofo.com/resources/insights/210430-amg-capital-v-ftc-scotus-enforcement-tool.html">client alert</a>.

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Megan E. Gerking is a partner in Morrison & Foerster’s Global Antitrust Law Practice, where she specializes in government-facing antitrust matters. Megan represents companies in criminal and civil con

Megan Gerking

Megan E. Gerking

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Michael Ahern is an associate in the Litigation Department of Morrison Foerster’s New York office.
Prior to joining Morrison Foerster, Mr. Ahern clerked for the Honorable Eileen Bransten in the Comm

Michael G. Ahern

Michael Ahern

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AMG Capital v. FTC – SCOTUS Strips the FTC of a Critical Enforcement Tool

In a unanimous decision reversing the Ninth Circuit, the Supreme Court in AMG Capital v. FTC ended a federal circuit split and squarely held that the FTC lacks 

The United States Supreme Court has repeatedly declined to resolve a question that has sharply divided the Circuits: whether a class may be certified even though it contains uninjured members. See e.g., Tyson Foods, Inc. v. Bouaphakeo et.al., 136 S. Ct. 1036, 1050 (2016). On March 30, 2021, the Supreme Court heard argument on related issues in TransUnion LLC v. Ramirez, No. 20-297, a case with potentially significant implications for parties embroiled in class action lawsuits.The question certified by the Supreme Court was: “Whether either Article III or Federal Rule of Civil Procedure 23 permits a damages class action when the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.”Case BackgroundRamirez v. TransUnion arose in 2011, when Sergio Ramirez visited a California car dealership with his wife and father-in-law looking to buy a car. The dealership pulled Mr. Ramirez’s credit report and informed him that they could not sell him a car because Mr. Ramirez’s name was on a “terrorist list.” Mr. Ramirez’s TransUnion credit report indicated that Mr. Ramirez’s name was a match to one listed on a database maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), which identifies terrorists, individuals who pose threats to national security, and international drug or weapons traffickers. Mr. Ramirez was “embarrassed, shocked, and scared.”The next day, Mr. Ramirez requested a copy of his credit report and received two separate mailings from TransUnion: the first mailing included his credit file along with a summary of rights required by law, and the second was a letter, unaccompanied by an additional summary of rights, alerting Mr. Ramirez that his name “is considered a potential match to information listed on the [OFAC] database.” After receiving the mailings, and out of an abundance of caution, Mr. Ramirez cancelled an upcoming vacation. Mr. Ramirez brought suit against TransUnion, alleging three violations of the Fair Credit Reporting Act (“FCRA”). Mr. Ramirez alleged that TransUnion failed to maintain reasonable procedures to assure maximum possible accuracy of the information about him when preparing a consumer report, violated obligations to consumers to provide “all” information upon request (because the OFAC information came to him in a separate mailing) and violated its obligation to provide consumers with a summary of their rights. The Northern District of California certified the case as a class action that included everyone who, in a six-month period, requested and received a copy of their credit report, sent in two contemporaneous but separate mailings, and showing that the individual’s name was a potential match to a name on the OFAC list.At trial, the jury heard only Mr. Ramirez’s story. Mr. Ramirez introduced no evidence that anyone else in the class suffered a credit denial or other adverse consequence as a result of the OFAC name-match appearing on their credit report. Mr. Ramirez stipulated that more than 75% of the members of the class never even had a credit report showing a potential name match disseminated to a third party during the relevant class period. Nevertheless, the jury found for the class on all claims and awarded statutory and punitive damages totaling over $60 million.On appeal, a divided Ninth Circuit held for Mr. Ramirez and found that the entire class had standing, because the “material risk of harm” conferred standing on even the members of the class whose credit reports were not disseminated to third parties.The Written ArgumentsIn the weeks prior to the Supreme Court argument, TransUnion, Mr. Ramirez and a number of amici — including the Chamber of Commerce — submitted briefs to the court.TransUnion argued that the lower court erred in certifying the class for at least two reasons. First, uninjured class members did not have Article III standing, as there was no evidence that any class member other than Mr. Ramirez even opened and read the mailings from TransUnion, let alone experienced any injury on account of information in the mailings regarding an OFAC name match. Second, TransUnion argued that Mr. Ramirez was an atypical class member with a uniquely sympathetic experience, as compared to other class members who TransUnion alleged “suffered at most a technical violation and some minor confusion in the privacy of their own homes.”Mr. Ramirez argued that all class members were injured because all members suffered a material risk of harm given that TransUnion made the reports available to creditors and employers and the OFAC information in the reports was both highly sensitive and distressing in nature. Furthermore, Mr. Ramirez argued that he was typical of the class as defined and that it was of no consequence that he suffered additional concrete harm as a result of TransUnion’s mailings.  The Chamber of Commerce submitted a brief in support of TransUnion, arguing that the uninjured class members lacked Article III standing and Mr. Ramirez was atypical of the class. As argued by the Chamber of Commerce, “an affirmance [of the Ninth Circuit’s holding] would embolden [enterprising] lawyers to seek out atypical clients in order to leverage their uniquely sympathetic experiences into a multimillion-dollar damages award or settlement — all based on technical statutory violations and all without having to show that the class they represent has suffered concrete injuries that the members could have brought in court themselves.” In such a scenario, an atypical plaintiff pursuing statutory damages may be able to garner a remedy disproportionate to the actual harm suffered by the vast majority of the class.  The Oral ArgumentsAt oral argument, the Justices took up the issues of whether, given that the majority of class members never had their credit reports disseminated to third parties, the class should have been certified, and whether Mr. Ramirez was typical of the class.Justices Alito, Gorsuch, Kavanaugh, and Barrett signaled skepticism toward the idea that class members whose credit reports were not disseminated had Article III standing, given that they may not have even known that their credit reports contained an OFAC alert, let alone suffered consequences akin to those suffered by Mr. Ramirez. As argued by counsel for TransUnion, members of the class whose credit reports were not disseminated should have “brok[en] out the champagne, not [broken] out a lawsuit.” Similarly, Justice Barrett asked whether, for these class members, there had been “no harm, no foul,” and Justice Kavanaugh analogized that “inaccurate information [fell] into a database,” but didn’t make a sound.Chief Justice Roberts offered potentially conflicting observations on the standing issue. He opined that class members whose credit reports were not disseminated had “sufficient standing to at least [clear their credit reports] up,” even if their “damages aren’t terribly significant . . .” However, he also asked what the concrete injury would be in a hypothetical case where Congress passed a law providing statutory damages to anyone driving within a quarter mile of a drunk driver but a suit was brought by a plaintiff who, for days, was unaware of his or her proximity to the drunk driver. Justice Thomas took a different approach, asking simply whether counsel for Mr. Ramirez agreed that all members of the class were required to have standing; counsel conceded that they were.Although most of the Justices focused primarily on the injury and standing questions, Justices Breyer and Sotomayor focused their questions on typicality. While they suggested that Mr. Ramirez’s claims were typical of the class, the two Justices noted that if TransUnion believed Mr. Ramirez’s injuries to be atypical, TransUnion should have so argued at trial, where the jury heard only from Mr. Ramirez. Assistant Solicitor General Nicole Reaves similarly honed in on typicality, arguing that all class members had standing, but that the Court should remand the case for a determination of whether Mr. Ramirez’s injuries were (and therefore Mr. Ramirez was) typical of the class.ImplicationsTransUnion presents an extreme case—the vast majority of class members arguably suffered no injury, while the named plaintiff suffered atypical and significant injury. Of broader interest, however, the Court’s decision may offer insight into how the Court as presently constituted will approach the issue of standing and class certification for uninjured class members. TransUnion may also address for the first time the implications for class certification where the class representative experienced a materially different, and more severe, injury than all or most other class members. Morrison & Foerster will continue to follow this case.