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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Morrison Foerster’s Class Dismissed blog provides insights and reports on the latest news, developments, and trends that affect consumer-facing companies. Subscribe to receive the latest updates by attorneys from our nationally recognized Consumer Class Action and Product Liability practices.

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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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California lawmakers are considering a bill that would limit confidentiality in cases involving allegations of defective products or environmental harms by placing restrictions on protective orders and confidentiality terms in settlement agreements.Generally, parties litigating cases alleging defective products or environmental conditions may stipulate to a protective order that governs discovery and protects the confidentiality of certain documents. Similarly, settlement agreements almost always require both parties to maintain some level of confidentiality as a condition of settlement. The ability to protect confidential information encourages early resolution, which in turn helps reduce the caseload of overburdened courts.The Public Right to Know Act (SB 1149), however, seeks to limit the parties’ ability to enter into such agreements in product liability and environmental cases in California. SB 1149, which was introduced by California State Senator Connie Leyva (D-Chino) this spring and is jointly sponsored by Consumer Reports and Public Justice, seeks to require public disclosure of factual information about an allegedly defective product or environmental condition that “has caused, or is likely to cause, significant or substantial bodily injury or illness, or death.”<a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234731187-v10-MOFO_SB_1149_Client_Alert.docx#_ftn1">[1]</a> California would join other states such as Florida and Louisiana that impose similar restrictions by statute.If passed, the bill would:<ul><li>Render provisions in settlement agreements that restrict disclosure of such factual information void and unenforceable;</li><li>Preclude courts or arbitral tribunals from entering any protective order that would seek to maintain the confidentiality of such factual information, with narrow exceptions; and</li><li>Allow any person, including a media member acting on behalf of the public, to challenge these types of confidentiality provisions so long as it is reasonably foreseeable that the restriction would affect the challenger.</li></ul>The bill provides some exceptions. A settlement provision or a protective order could still maintain confidentiality over the following:<ul><li>Settlement amount;</li><li>Medical or personal identifying information;</li><li>Citizenship or immigration status; and</li><li>Proprietary customer lists or trade secrets if the party moves the court or arbitral tribunal in good faith and demonstrates that an overriding confidentiality interest outweighs public interest in disclosure.</li></ul>The legislature recently amended SB 1149 to permit a party, including an intervenor who has become a party or a producing or testifying third party, to move for nondisclosure under the above provisions.The bill’s proponents claim to seek a balance between corporate confidentiality and promoting disclosure of evidence related to public safety. If passed, however, the bill could undermine public policy favoring early resolution and harm parties litigating these kind of cases by restricting the tools available to protect confidentiality. Protecting confidential information incentivizes parties to settle cases early. Settlements help parties avoid costly litigation and lessen burdens on courts. Without this incentive, parties would be more likely to avoid seeking early resolution and to engage in protracted litigation.Furthermore, with protective orders severely limited, discovery disputes would likely intensify, as parties defending against such allegations would seek to protect their confidential information from public inquiries.In addition, SB 1149 would place new obligations on attorneys. If passed, attorneys would have to take this legislation into account when advising clients about the scope of confidentiality permitted in settlements and in discovery. Asserting confidentiality over the underlying facts in a settlement agreement, advising a client to sign an agreement containing such a provision, or moving for a protective order that seeks to protect such information could constitute grounds for bar discipline.This bill’s passage is not a foregone conclusion. Similar legislative proposals have failed in the past, including a recent effort in 2017. If SB 1149 passes, however, parties defending in the areas of products and environmental harms could experience increased litigation costs, drawn out discovery disputes, and greater risk of exposing confidential business information.The Morrison Foerster Class Action & Mass Tort team will continue to monitor the progress of SB 1149 and provide updates as the bill proceeds through the legislature. <a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234731187-v10-MOFO_SB_1149_Client_Alert.docx#_ftnref1">[1]</a> <a href="https://legiscan.com/CA/text/SB1149/id/2520468/California-2021-SB1149-Introduced.html">SB 1149</a>.

Fertility Center Litigation

Fitbit

MicroPort

Leading Healthcare, Pharmaceutical, and Medical Device Company

Lethal Injection Matters – Major Pharmaceutical Company

Pain Pump Matters – Large Pharmaceutical Company

Major Technology Company

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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Confidentiality at Risk: California Legislature Considers Bill That Would Limit Scope of Confidentiality in Product Liability and Environmental Cases and Settlements

Confidentiality at Risk: California Legislature Considers Bill That Would Limit Scope of Confidentiality in Product Liability and Environmental Cases and Settlements

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California lawmakers are considering a bill that would limit confidentiality in cases involving allegations of defective products or environmental harms by plac

Environmental Law

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For the second year in a row, Morrison Foerster partners and associates gathered virtually and in person for Western Alliance Bank’s 4th Annual Class Action Law Forum (CALFTM), hosted in collaboration with the University of San Diego School of Law. From federal judges to top litigators to law school faculty, this hybrid event brought together a wide range of class action and mass tort practitioners to provide both students and practitioners with opportunities to interact with and learn from leading jurists and preeminent litigators. Among the notable list of speakers and panelists were Morrison Foerster’s own Erin Bosman (who also co-chaired the forum), Julie Park, William (Bill) Tarantino, Jessica Grant, Claudia Vetesi, Tiffany Cheung, and Stacy Sprenkel. Our partners shared valuable insights on key areas of class action and complex litigation, including the intersection between class actions and multidistrict litigation, special challenges in large mass tort cases, best practices for class action and mass action mediations and arbitrations, trends in settlements and notice claims, and health and wellness in the legal field. Many of the panels discussed the impact remote work has had on class action and mass tort practice, from the efficiency of virtual appearances to the positive impact remote work can have on associate development. To read more on the key takeaways from the annual CALF, read Western Alliance Bank’s <a href="https://www.westernalliancebancorporation.com/insights/2022-class-action-law-forum-highlights-driving-efficiency-post-covid">recap insights article</a>.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.
Alexandra litigates product liability matters involving medical devices, pharmaceuticals, autom

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2022 Class Action Law Forum: Recap & Insights

2022 Class Action Law Forum: Recap & Insights

For the second year in a row, Morrison Foerster partners and associates gathered virtually and in person for Western Alliance Bank’s 4th Annual Class Action Law

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

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

Jessica Kaufman

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

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

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

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Meta recently agreed to settle one of the longest-running data privacy lawsuits in the United States.[1]  The lawsuit challenged the company’s use of cookies to

Privacy

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 

Appellate & Supreme Court

Cyber incidents top the list of issues keeping in-house counsel up at night. And as we continue to see the number of incidents climb, we continue to see class actions filed in their wake. So what are the highlights from 2021 and what can we expect in the coming year?<h4>Class Action Filing Trends</h4>We count 36 major data breach class actions filed this past year, treating multiple cases filed against a single defendant as one major class action.<a href="https://www.mofo.com/resources/insights/220104-privacy-litigation-2021-year-review.html?utm_source=publication&utm_medium=email#_ftn1" class="anchor">[1]</a> This is a significant increase over the 25 major class actions filed last year. Here’s what we are seeing in these cases:Plaintiff’s counsel continue to jockey for position. Plaintiff’s attorneys continue to try to beat others to the courthouse.  In five of the major data breach cases filed, plaintiffs filed the first-filed case within a week of announcement of the breach.  On average, cases were filed within four weeks of the announcement. Three of the cases were the subject of MDL proceedings; 21 of them were consolidated.What was stolen. In 26 cases, plaintiffs alleged exfiltration of social security numbers, significantly more than the number of cases we saw last year. Last year, the majority of cases concerned allegedly compromised payment card information. This kind of information allegedly was compromised in about one-third of the cases this year, and about half of the cases concerned alleged exfiltration of sensitive medical data.Who was impacted. As compared to 15% of the cases last year, plaintiffs in about one-third of the cases this year were employees. The rest of the plaintiffs were customers, patients, or account holders.Novel liability theories. We saw further evolution of plaintiff’s counsel’s theories in the last year. In a suit filed in response to the Colonial Pipeline ransomware attack, for example, plaintiff alleges that consumers and gas station owners were harmed by increased gas prices as a result of the company’s negligence.<a href="https://www.mofo.com/resources/insights/220104-privacy-litigation-2021-year-review.html?utm_source=publication&utm_medium=email#_ftn2" class="anchor">[2]</a> And a federal court in Los Angeles followed other courts in rejecting plaintiff’s theory that the value of his personal information decreased due to the breach.<a href="https://www.mofo.com/resources/insights/220104-privacy-litigation-2021-year-review.html?utm_source=publication&utm_medium=email#_ftn3" class="anchor">[3]</a>To learn more, read our <a href="https://www.mofo.com/resources/insights/220104-privacy-litigation-2021-year-review.html">client alert</a>.

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Privacy Litigation 2021 Year in Review: Data Breach Litigation

Privacy Litigation 2021 Year in Review: Data Breach Litigation

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Cyber incidents top the list of issues keeping in-house counsel up at night. And as we continue to see the number of incidents climb, we continue to see class a

Arbitration

Erin Bosman has been named “Product Liability Lawyer of the Year.”  This award recognizes high achieving female lawyers and progressive law firms who best support women in law.Co-Chair of MoFo’s Class Actions and Mass Torts Group, Erin defends clients in high-stakes mass tort litigation and navigates them through complex, company-threatening product liability crises. Clients count on her to protect their brands and turn to her as their trusted advisor. Erin has long championed women in the legal profession and serves as mentor, sponsor, and advisor to countless women both within and outside the firm.Morrison & Foerster has also been recognized for the “Gender Diversity International Law Firm” award and was named “Firm of the Year for the U.S. – Northeast Area,” demonstrating MoFo’s commitment to advancing gender diversity in the law.

Erin Bosman Named Product Liability Lawyer of the Year by Euromoney in Americas Women in Business Law Awards

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Erin Bosman Named Product Liability Lawyer of the Year by Euromoney in Americas Women in Business Law Awards

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Erin Bosman has been named “Product Liability Lawyer of the Year.”  This award recognizes high achieving female lawyers and progressive law firms who best suppo

Announcements & Press

Legal 500 US 2021 has recommended Erin Bosman, David Fioccola, and Jessica Grant, and named Julie Park among its “next generation” practitioners. The publication also recognized Morrison & Foerster as a top firm in Product Liability, Mass Tort and Class Action (Defense) for Pharmaceuticals and Medical Devices. See what our clients and peers are saying about MoFo’s Class Actions + Mass Torts Group.<div class="embedded-entry redactor-component block-entry" type="entry" data-sys-entry-uid="blt4fafbbc19c76d8c0" data-sys-entry-locale="en-us" data-sys-content-type-uid="image_content" sys-style-type="block"><div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blta6cc7bd9d3d54bb0/627315e24d9f89297129017b/07_01_legal500-tier3_productliability_infographic_150dpi_v6.jpg?format=auto&amp;quality=60" alt="Product Liability Infographic"></div></div>

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Morrison & Foerster Achieves Top Ranking in Product Liability, Mass Torts and Class Action (Defense) for Pharmaceuticals and Medical Devices

Legal 500 US 2021 has recommended Erin Bosman, David Fioccola, and Jessica Grant, and named Julie Park among its “next generation” practitioners. The publicatio

Morrison & Foerster Achieves Top Ranking in Product Liability, Mass Torts and Class Action (Defense) for Pharmaceuticals and Medical Devices

Trials

Pharmaceutical & Medical Devices

Mass Torts

Legal 500 US 2021 recognized Morrison & Foerster as a top firm in Advertising and Marketing Litigation. See what our clients and peers are saying about MoFo’s Class Actions + Mass Torts Group.<img class="img-responsive" src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt5afe385619175981/627315e123c6cf2a1c3af543/210719-legal-500-advertising-infographic.jpg?format=auto&quality=60" alt="Legal 500 Infographic - Advertising and Marketing Law" type="asset" sys-style-type="download">

Morrison & Foerster Achieves Top Ranking in Advertising and Marketing Litigation

Legal 500 US 2021 recognized Morrison & Foerster as a top firm in Advertising and Marketing Litigation. See what our clients and peers are saying about MoFo’s C