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

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

Julie Y. Park

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

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Senior Counsel

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

Penelope A. Preovolos

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

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Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class actions.

Claudia M. Vetesi

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

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

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

Alexandra Barlow

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

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

Adam Hunt

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Alexandra Preece Barlow

Adam J. Hunt

Right-to-Repair Laws: The Trend Continues

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

New Wave of PFAS Legislation Aimed at Consumer Products

CPSC Releases Annual Report on Deaths and Injuries Involving Nursery Products

CPSC Proposes New Safety Rules for Infant Rockers

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Plaintiffs have begun serving Proposition 65 notices of violation alleging unwarned exposures to furfuryl alcohol (FFA). Like acrylamide, which has been the subject of significant Proposition 65 litigation already, FFA is present in a wide variety of foods and flavorings and forms as a byproduct of cooking.California’s Office of Environmental Health Hazard Assessment (OEHHA) added FFA to the list of chemicals subject to Proposition 65 on September 30, 2016. The OEHHA listing was based on the U.S. Environmental Protection Agency’s 2014 finding of likely human carcinogenicity because “furfuryl alcohol causes increased incidences of rare malignant nasal tumors in male rats, and rare malignant and combined malignant and benign kidney tumors in male mice.” Companies became presumptively obligated to provide Proposition 65 cancer warnings for exposures to FFA at the start of the fourth quarter of 2017. In addition to its industrial applications, FFA can be found in various foods and flavorings.

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WARNING: Proposition 65 Farce About to Repeat Itself for Vulnerable Foods and Flavorings

WARNING: Proposition 65 Farce About to Repeat Itself for Vulnerable Foods and Flavorings

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Plaintiffs have begun serving Proposition 65 notices of violation alleging unwarned exposures to furfuryl alcohol (FFA). Like acrylamide, which has been the sub

Last Monday, a federal judge temporarily barred California from requiring cancer warnings on products that contain detectable amounts of glyphosate—the main ingredient in Monsanto’s flagship herbicide Roundup. Trace residues of glyphosate in food products had already become a potential target of Proposition 65 bounty hunters, who presumably had already begun testing foods purchased in California grocery stores to determine which companies would receive their first round of 60-day intent to sue notices.The preliminary injunction by U.S. District Court Judge William B. Shubb declined to remove glyphosate on the Proposition 65 list of chemicals “known to the State of California to cause cancer,” but, at least for now, bars the State from imposing the corresponding warning requirement while the case challenging its listing proceeds on its merits. The court’s ruling is based on a First Amendment, compelled false speech analysis—Judge Shubb determined that a Prop 65 cancer warning on glyphosate or glyphosate residues could mislead a reasonable consumer since the vast majority of scientific and health organizations have found no evidence that glyphosate causes cancer in humans.The preliminary injunction is a win for glyphosate manufacturers, agriculture, and food companies as trace amounts of glyphosate—one of the most widely used herbicides in agriculture—can remain on crops after they are harvested. Residues of it can be detected in a variety of produce, processed commodities, and finished food products. Indeed, testing by the U.S. Food and Drug Administration and environmental groups have detected trace amounts of glyphosate in an assortment of agricultural commodities and food products, including in soybeans, corn, oats, and baby food to name just a few.

In re Lumber Liquidators Chinese Laminate Litigation

Maxus Energy Corporation

In re Hydroxycut Personal Injury and Class Action Litigation

Los Angeles World Airport (LAWA)

Environmental Law Foundation v. Beech-Nut Nutrition Corp., et al

Fitbit Force Recall 

People of the State of California v. The Coca-Cola Company

Seagate Technology LLC

Clif Bar, Inc.

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Drawing on his considerable experience in environmental health, William (Bill) focuses his practice on environmental and consumer protection law, with an emphasis on climate-related goals and claims, hazardous substances, mass torts, and consumer product safety.

William Tarantino

Drawing on his considerable experience in environmental health, William (Bill) focuses his practice on environmental and consumer protection law, with an emphasis on hazardous substances, mass torts, and consumer product safety.

William F. Tarantino

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Round One Goes to Roundup: Court Temporarily Enjoins Proposition 65 Warnings for Glyphosate and Glyphosate Residues in Foods

Round One Goes to Roundup: Court Temporarily Enjoins Proposition 65 Warnings for Glyphosate and Glyphosate Residues in Foods

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Last Monday, a federal judge temporarily barred California from requiring cancer warnings on products that contain detectable amounts of glyphosate—the main ing

With regulatory frameworks around autonomous vehicles (AVs) under development at the federal, state, and local levels, new autonomous technology frontiers are emerging for rulemakers. The latest is personal delivery devices (PDDs) – essentially small autonomous vehicles designed primarily for last-mile logistics using sidewalks and driveways, rather than public roads and highways.Regulation of PDDs is truly nascent. Today, a limited number of states have, or are soon to have, PDD-specific statutes or regulations, including Arizona, Florida, Idaho, Ohio, Utah, Virginia, and Wisconsin. Each of these statutes has a few common features: Requirements related to size, speed, and weight limits, and active control and monitoring by an operator. Similar frameworks are also being developed at the city level, including in Washington, D.C. and Walnut Creek, CA.

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Tessa J. Schwartz, partner, has extensive experience in complex intellectual property and technology law, copyright law, and patent litigation.

Tessa Schwartz

Tessa Schwartz has an active practice counseling companies on intellectual property and technology transactions issues, and negotiating complex intellectual property and commercial agreements.

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Personal Delivery Devices (PDD): New Transportation Frontiers Emerge for Autonomous Vehicle Rulemakers

Personal Delivery Devices (PDD): New Transportation Frontiers Emerge for Autonomous Vehicle Rulemakers

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With regulatory frameworks around autonomous vehicles (AVs) under development at the federal, state, and local levels, new autonomous technology frontiers are e

On February 26, 2018, the California Department of Motor Vehicles (DMV) announced new regulations allowing fully driverless cars to be tested on California roads as of April 2, 2018. The announcement culminates a multi-year process undertaken by DMV.The new regulations mark a significant change. Although DMV has already issued permits to 50 manufacturers and technology companies allowing for autonomous vehicle (AV) testing on California roads under its existing regulations, the new regulations are among the first in the nation allowing for AV testing without a human driver present in the vehicle. They represent a critical next step in the deployment of fully driverless vehicles to the public. In fact, the new regulations anticipate deployment once testing has been successfully completed. They not only provide for permits to allow testing of AVs without a human driver (at §227.38), but also provide for permits to allow post-testing deployment of AVs (at §228.06).

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California Opens the Road to Fully Driverless Cars; Federal Policymaking Slowly Rolls Forward

California Opens the Road to Fully Driverless Cars; Federal Policymaking Slowly Rolls Forward

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On February 26, 2018, the California Department of Motor Vehicles (DMV) announced new regulations allowing fully driverless cars to be tested on California road

California’s Green Chemistry Initiative has taken another step towards regulating a widely available consumer product.  On February 15, 2018, the California Department of Toxic Substances Control (DTSC) released a discussion draft document entitled "Product – Chemical Profile for Perfluoroalkyl and Polyfluoroalkyl Substances (PFASs) in Carpets and Rugs (Profile)", which proposes to list carpets and rugs containing PFASs as a Priority Product.  Under the Initiative, also known as the Safer Consumer Products (SCP) Program, DTSC must identify product-chemical combinations that meet the identification and prioritization criteria set forth in the SCP regulations before initiating a rulemaking.   Those criteria include the following:<ul><li>There must be potential public and/or aquatic, avian, or terrestrial animal or plant organism exposure to the Candidate Chemical(s) in the product; and</li><li>There must be the potential for one or more exposures to contribute to or cause significant or widespread adverse impacts.</li></ul>In the Profile, DTSC sets forth its rationale for its proposal to list carpets and rugs containing PFASs as a Priority Product.The Candidate Chemical and ProductFor purposes of this Profile designation, PFASs include:<ul><li>Perfluoroalkyl acids (PFAAs);</li><li>PFAA precursors;</li><li>Perfluoropolyethers (PFPEs); and</li><li>Fluoropolymers</li></ul>A large number of PFASs are used to treat carpets and rugs by conferring stain-, soil-, oil-, or water-resistance.The Profile covers carpets and rugs made from natural or synthetic fabric to be used as floor coverings in residential or commercial buildings—including carpeted door mats used indoors and outdoors—but does not include: carpets and rugs for outdoor use; carpets and rugs for use inside trains, planes, buses, automobiles, or any other indoor environment besides buildings; resilient floor coverings (e.g., vinyl tile and linoleum); artificial turf; table mats; wall hangings and coverings; or camping sleeping mats.Use and Regulation of PFASsAccording to the Profile, “[c]arpets and rugs contribute to widespread environmental contamination and exposures, as do other consumer products such as food packaging, cosmetics, and waterproof clothing.  Once released to the environment [i.e., air, water, and soil] during product manufacture, use, or disposal [e.g., landfilling], PFASs become part of a virtually closed cycle leading to chronic, lifelong human and ecological exposures. . . Because PFAAs and other persistent PFASs lack a natural degradation route, their levels in the environment, humans, and biota may continue to rise for as long as PFASs are used in consumer products.”Notably, perfluorooctanoic acid (PFOA) and related substances have been listed as Substances of Very High Concern (SVHC) under the European Union’s REACH regulation, and several related PFASs are listed as SVHCs or as REACH restricted substances due to their persistent, bioaccumulative, and toxic properties.  Distributors of articles in the EU (including rugs) are obliged to advise downstream users when an SVHC is used above 0.1 percent by weight.Both PFOA and perfluorooctane sulfonate (PFOS) were added to the Proposition 65 list of developmental toxicants on November 10, 2017.  Products that contain PFOS or PFOA will be subject to Proposition 65’s warnings requirement as of November 10, 2018.Alternatives to PFASsSome non-chemical alternatives to PFASs in carpets and rugs include:<ul><li>Modifying the shape of the yarn and use of thicker lobes, making the carpet or rug inherently soil-resistant and more durable;</li><li>Use of polypropylene fibers, which are inherently soil-resistant and may not require chemical treatment;</li><li>Use of wool fibers, which resist water-based stains, but not soil- or oil-based stains;</li><li>Use of polyethylene terephthalate (PET) fibers, which are stain-resistant; and</li><li>Use of polytrimethylene terephthalate (PTT) fibers, which are more stain-resistant than nylon.</li></ul>A chemical alternative is:<ul><li>Sulfonation, which blocks fiber dye sites with colorless sulfonates, making it difficult to stain a carpet or rug by acidic colorants.</li></ul>Other chemical alternatives identified by DTSC include Invista’s non-fluorinated Duratech® and Tandus Centiva’s Eco-Ensure; however, DTSC has not evaluated these for safety and does not have complete chemical content information on these alternatives.Workshop and Comment PeriodDTSC now seeks public comment and information that will further shape its regulatory proposal.   Interested stakeholders and other potentially regulated parties should consider engaging in the process now.  DTSC is holding a public workshop on March 7, 2018 in Sacramento and via a webcast.  It is also accepting public comments on the Profile until March 23, 2018.  Morrison and Foerster has worked with regulators and clients on the Green Chemistry Initiative since its inception and can provide additional detailed information about the Priority Product listing and the consequences to business.

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California Proposes Next Group of Priority Products Under Its Green Chemistry Initiative

California Proposes Next Group of Priority Products Under Its Green Chemistry Initiative

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California’s Green Chemistry Initiative has taken another step towards regulating a widely available consumer product.  On February 15, 2018, the California Dep

On February 8, 2018, the California Department of Toxic Substances Control (DTSC) released a <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt14a86328dcb93273/62730e0a0d4d8e1d7f10f012/180213-dtsc-draft-priority-product-work.pdf">Draft Three-Year Priority Product Work Plan (2018-2020)</a> (new Work Plan) under its Safer Consumer Products (SCP) Program. The SCP Program is an innovative regulatory scheme to evaluate and require safer substitutes for hazardous chemicals in consumer products. The new Work Plan identifies the product categories that DTSC will evaluate during the next three years in order to identify the next set of Priority Products it will regulate under the SCP regulations.Following on the heels of the prior 2015-2017 Priority Product Work Plan (Prior Work Plan), the new Work Plan identifies seven product categories from which DTSC will propose future Priority Products for regulation. The new Work Plan also describes DTSC’s considerations in selecting the product categories and provides selected examples of Candidate Chemicals found in products within these categories.

California’s Green Chemistry Agency Issues Its Draft 2018-2020 Three-Year Priority Product Work Plan

On February 8, 2018, the California Department of Toxic Substances Control (DTSC) released a Draft Three-Year Priority Product Work Plan (2018-2020) (new Work P

California’s Green Chemistry Agency Issues Its Draft 2018-2020 Three-Year Priority Product Work Plan

On December 20, 2017, the Ninth Circuit refined the injunctive standing requirements in the misbranding context in Victor v. Bigelow and Khasin v. Bigelow (collectively, “Bigelow”), finding that injunctive standing is limited and requires a current intent to purchase challenged products in the future. See Victor v. Bigelow, No. 16-16639 (9th Cir. argued Nov. 15, 2017); Khasin v. Bigelow, No. 16-16641 (9th Cir. Argued Nov. 15, 2017).These decisions demonstrate the Ninth Circuit’s evolving standards on injunctive relief since its last decision on the issue in Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017).  (See <a href="https://classdismissed.mofo.com/consumer-products/ninth-circuit-finds-lower-court-erred-in-flushing-flushable-wipes-false-advertising-claims/">https://classdismissed.mofo.com/consumer-products/ninth-circuit-finds-lower-court-erred-in-flushing-flushable-wipes-false-advertising-claims/</a>.)  As we noted in our December 4, 2017 post on the case, the Ninth Circuit in Davidson found that the fact that a plaintiff now knows the “truth” of an allegedly false advertisement does not foreclose injunctive standing.  In Bigelow, the Ninth Circuit threads the needle to carefully avoid conflict with this decision, thereby further defining the scope of injunctive standing.We discuss the panel’s holding in Bigelow, as well as key takeaways, below.Case Background. Plaintiffs Victor and Khasin both alleged that defendant R.C. Bigelow (“Bigelow”) mislabeled its black tea by including the phrase “healthful antioxidants” on its products’ labels. See Khasin v. R.C. Bigelow, Case No. 12-cv-02204-WHO, 2016 WL 4502500 (N.D. Cal. Aug. 29, 2016); Victor v. R.C. Bigelow, Case No. 13-cv-02976-WHO, 2016 WL 4502528 (N.D. Cal. Aug. 29, 2016).  The district court granted summary judgment to Bigelow on plaintiffs’ injunctive relief claims, concluding that plaintiffs lacked Article III standing to seek an injunction preventing Bigelow from selling “mislabeled” tea.Injunctive Relief Unavailable If No Intent to Purchase. In appealing the district courts’ orders, the plaintiffs relied heavily on Davidson, arguing that the decision means plaintiffs have injunctive standing the moment they allege a labeling is misleading, regardless of whether they intend to purchase products again in the future or if the company changes its labels. See <a href="https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000012555">https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000012555</a> (Bigelow oral argument).In an unpublished opinion, the three-judge panel — which included Judge Berzon, who had sat on the Davidson panel — disagreed with plaintiffs’ argument, holding that plaintiffs were not entitled to injunctive relief because they did not face a threat of future harm.  While plaintiffs both stated that they would consider buying Bigelow tea again, they testified that they would only do so if they received an injunction first.  Both also stated that they would not consider purchasing the tea with updated and accurate packaging.  “Because they will not consider buying even properly labeled tea until they receive an injunction,” the panel reasoned, “[the plaintiffs] will not be harmed by wondering if the tea is still mislabeled or by buying the tea without knowing if it is still mislabeled.”  The panel accordingly held that the plaintiffs “did not face a real or immediate risk of being harmed again in the same manner and so lack Article III standing to seek injunctive relief.”Takeaway. Davidson and Bigelow demonstrate that injunctive standing is not an “all or nothing” standard.  Instead, whether a plaintiff has standing to pursue an injunction will depend largely on the facts, and particularly on a plaintiff’s deposition testimony.  As the panel noted in Bigelow, this raises concerns that plaintiffs’ attorneys may attempt to influence deposition testimony to ensure their clients testify in accordance with the requirements for injunctive standing.By highlighting testimony that does and does not satisfy these requirements — i.e., the “future intent to purchase and fear of mislabeling” that sufficed in Davidson versus the “intent to purchase only if an injunction is granted” that failed in Bigelow — the decisions also help define the contours of injunctive standing in the misbranding context, and put to rest disagreement in the Ninth Circuit as to the fundamentals of these standing requirements: knowledge that an advertisement is false does not foreclose standing, but a present intent to purchase — coupled with fear that the product will continue to be mislabeled — is required.

Reading the Tea Leaves: Ninth Circuit Further Clarifies Injunctive Standing Issues in Bigelow Tea Cases

On December 20, 2017, the Ninth Circuit refined the injunctive standing requirements in the misbranding context in Victor v. Bigelow and Khasin v. Bigelow (coll

Reading the Tea Leaves: Ninth Circuit Further Clarifies Injunctive Standing Issues in Bigelow Tea Cases

With the start of the new year, President Trump again nominated Republican Ann Marie Buerkle to chair the U.S. Consumer Product Safety Commission (CPSC). Her expected confirmation will continue to push the CPSC in a more corporate-friendly direction that focuses on consensus building rather than additional regulation.At the same time, another Republican, Dana Baiocco, is expected to be confirmed to take Democratic Commissioner Marietta S. Robinson’s seat. Both Buerkle and Robinson have antiregulatory reputations, leading to criticism from some consumer advocacy groups, even though both have decades of experience in consumer product safety regulation. What does this mean for the industry? Given their backgrounds, the new combination of commissioners will likely line up with President Trump’s antiregulatory agenda and result in a cooperative approach with industry. But beyond this, business as usual probably won’t change drastically at the CPSC.New Balance of Commissioners at the CPSCMs. Buerkle was named acting chairman of the CPSC early in the Trump administration. As many expected, President Trump then nominated her to be permanent chairman of the Commission in July of last year. After a contentious confirmation hearing in September, the Senate committee voted along party lines to advance her nomination to the Senate floor. The full Senate vote, however, never happened and her name—along with about 100 other pending appointments—was returned to the president as required following the end of a congressional session. Ms. Buerkle and the other returned nominees did not have the unanimous consent often given by the Senate to waive that rule. Ms. Buerkle recently cleared the committee process again and her eventual Senate confirmation appears assured.Ms. Buerkle is no stranger to the CPSC. Appointed by President Obama, Ms. Buerkle has already served four years as a commissioner. Because federal statute prevents filling more than three seats with the same party, President Obama gave Mitch McConnell the choice for the open seat. Senator McConnell tapped Ms. Buerkle as a safe ideological ally.At the time, Ms. Buerkle was looking for a way to return to public service. She had recently departed Congress after serving one term as a member of the congressional delegation from New York. She won election as a conservative candidate in the Tea Party wave of 2010 and lost a rematch in 2012. Though she accepted the seat on the CPSC in 2013, she declared her intent to run again for Congress. That never happened, as she found a home at the CPSC. In 2017, Ms. Buerkle described her service as acting chairman of the CPSC to be a culmination of many parts of her life working in advocacy. Before entering politics, Ms. Buerkle was a nurse, then a medical malpractice attorney, and finally a New York assistant attorney general.Ms. Baiocco, the newly nominated commissioner, is an experienced product safety attorney who brings a different background to the CPSC. Her nomination followed a similar path in the Senate last year to that of Ms. Buerkle, and she was also re-nominated and cleared the Senate committee earlier this month. Ms. Baiocco made her name in product-liability corporate defense, representing clients in lawsuits that also drew attention from the CPSC. In one notable case, Ms. Baiocco represented Yamaha in litigation regarding the rollovers of their Rhino off-road vehicles. Following these suits, the CPSC helped Yamaha implement a recall program for the vehicles.Ms. Baiocco’s consumer-products interests run in the family. Her husband—also a lawyer—has defended IKEA in the recent dresser tip-over suits. Notably, IKEA’s dressers have also been a focus of CPSC action. Anticipating scrutiny over potential conflicts, Ms. Baiocco has promised to recuse herself from any matter in which she or her husband have a direct financial interest or that will have a direct or predictable effect on her husband’s firm.How Will Buerkle’s Confirmation Change the CPSC?Because the CPSC’s mandate is to protect the public from “unreasonable risks of injury” in consumer products, its leader has a substantial ability to influence how this mandate is carried out.Much of the CPSC’s discretion can be seen in its day-to-day actions. For instance, the CPSC’s compliance work is often carried out through voluntary recalls in conjunction with product manufacturers, distributors, and retailers. New leadership may decline to push for some recalls based on a different perception of what types of incidents rise to the level of seriousness to merit such action. In addition, even CPSC’s mandatory enforcement authority comes with a degree of discretion. As many of our readers will <a href="https://classdismissed.mofo.com/consumer-products/cpsc-magnet-set-safety-standards/">recall</a>, former Chairman Elliot Kaye generated controversy with unprecedented enforcement efforts against high-powered magnet ball sets. We expect this type of discretionary enforcement to continue to decline under Ms. Buerkle.Another major role of the Commission is to set product safety standards, which it accomplishes in one of two ways: (1) rulemaking or (2) coordination with industries for voluntary standards. Again, the Commission has significant discretion, and Ms. Buerkle prefers consensus voluntary standards. She made this patently clear during the nomination process, refusing to back down from this goal in her first confirmation hearing in September. For example, Senator Bill Nelson (D-Fla.) questioned Ms. Buerkle about her vote against a rule to improve the safety of portable electric generators in favor of allowing the industry to voluntarily improve safety standards on its own. Senator Nelson argued that manufacturers would not follow voluntary standards to improve safety. In response, Ms. Buerkle disagreed and insisted she could raise safety standards faster and more effectively through the industry consensus aspect of voluntary standards.Ms. Buerkle’s nomination may also prompt change to the CPSC’s public database for consumer safety complaints. As part of the 2008 Consumer Product Safety Improvement Act, Congress mandated that the CPSC create a public portal and a publicly accessible, searchable database of consumer product incident reports. Manufacturers are given 10 days in which to respond to the complaints before their publication, but CPSC will not withhold comments unless the manufacturer can demonstrate with indisputable facts or documentation that the report is materially inaccurate. Under the current system, the CPSC does not itself verify the accuracy of the complaint. Manufacturers have complained that the database makes it too easy to upload false information. In support of manufacturers, Ms. Buerkle voted to defund the database during her term in Congress. As chairman, she will not have the power to scrap the database, but she may have the power to influence how information is reported and verified in the database.How Will This Affect Consumer Product Manufacturers?We expect the CPSC will defer more to industry under Ms. Buerkle’s leadership, but significant changes are unlikely for two reasons. First, much of the regulatory function of the CPSC is statutorily outlined. In comparison to some other federal agencies, the CPSC often has little discretion under its governing statutes. For instance, in the Children’s Gasoline Burn Prevention Act of 2008, Congress passed a law requiring that closures on portable gasoline containers conform to specific child-resistance standards. As a result, these standards were incorporated into the CPSC’s consumer product safety rules without a need for rulemaking from the Commission. Because many of its governing statutes impose specific product safety standards such as these, or leave little room for interpretation, a change in leadership at the CPSC will not change most existing consumer product rules.Second, Ms. Buerkle and Ms. Baiocco are dedicated to product safety, even if they approach the issue with a different philosophy than former Chairman Kaye. Ms. Buerkle has described herself as an “across-the-board conservative,” and as such has publicly declared her dedication to reducing government spending and the costs of regulations to American businesses. But Ms. Buerkle’s goals, despite consumer advocate groups’ protests, are not incompatible with the CPSC’s mission. Ms. Buerkle has shown a spirit of public service in her careers as a nurse, a lawyer, and a public servant. Her advocacy of product safety should be expected to continue, though with stronger coordination and cooperation with industry.Similarly, though Ms. Baiocco will presumably also keep industry needs in mind, she should likewise be trusted to protect consumers’ interests. Ms. Baiocco’s nomination, given her involvement in defending corporations in high-profile consumer products lawsuits, was undoubtedly intended as a pro-industry signal. Yet her career of corporate advocacy gives her a strong foundation in industry risks and potential abuses in product safety. She can be expected to effectively weigh consumer interests against those of manufacturers, distributors, and retailers when evaluating product safety.Although it represents a shift at the CPSC, the changing leadership is certainly not the downfall of consumer product safety, as some consumer advocacy groups have predicted. Increased cooperation with industry, including a strong preference for voluntary standards over regulation, can be an effective strategy for reaching consensus and maximizing industry compliance with consumer product safety standards.