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.

Social

Search

Editors

park_julie_blog_150x150.png

park_julie_common_640x280.jpg

park_julie_heroretina_2700x1160.jpg

park_julie_mobileretina_750x1040.jpg

park_julie_social_600x600.jpg

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).

preovolos_penelope_blog_150x150.png

preovolos_penelope_common_640x280.jpg

preovolos_penelope_heroretina_2700x1160.jpg

preovolos_penelope_mobileretina_750x1040.jpg

preovolos_penelope_social_600x600.jpg

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.

vetesi_claudia_blog_150x150.png

vetesi_claudia_common_640x280.jpg

vetesi_claudia_heroretina_2700x1160.jpg

vetesi_claudia_mobileretina_750x1040.jpg

vetesi_claudia_social_600x600.jpg

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.

preece_alex_blog_150x150.png

preece_alex_common_640x280.jpg

preece_alex_heroretina_2700x1160.jpg

preece_alex_mobileretina_750x1040.jpg

preece_alex_social_600x600.jpg

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.

hunt_adam_blog_150x150.png

hunt_adam_common_640x280.jpg

hunt_adam_heroretina_2700x1160.jpg

hunt_adam_mobileretina_750x1040.jpg

hunt_adam_social_600x600.jpg

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

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

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.

Welcome to Class Dismissed

class-dismissed-welcome-image.jpeg

class-dismissed-welcome-image

Morrison Foerster’s Class Dismissed blog provides insights and reports on the latest news, developments, and trends that affect consumer-facing companies. 

Class Action

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry.

MoFo Tech

Equips our clients with the most up-to-date and relevant information on employment and labor law issues.

Employment Law Commentary

Stay on top of emerging issues and stay informed of developments related to the law and business of social media.

Socially Aware

In-depth analysis of developments and trends impacting government contracting.

Government Contracts Insight

The latest news and insights from the nationally recognized Consumer Class Action and Product Liability practices of Morrison & Foerster.

Class Dismissed

  Linkedin

MoFo LinkedIN

Class Dismissed Blog - RSS

Stay Connected

By submitting your data to subscribe to this blog, you approved Morrison & Foerster LLP to email you future information about MoFo news and events. You may opt-out at any time by sending a request to <a href="mailto:mofonews@mofo.com">mofonews@mofo.com</a>. To learn more about how Morrison & Foerster LLP uses and protects your personal data, please view our <a href="https://www.mofo.com/about/privacy-policy.html">Privacy Policy</a> at <a href="https://www.mofo.com/">www.mofo.com</a>.

Never miss a post from Class Dismissed. Enter your email below to stay up-to-date.

Subscribe

Class Action and Product Insights for Your Business

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

TCPA

Announcements & Press

Antitrust

Appellate & Supreme Court

Arbitration

Autonomous Vehicles & Robotics

Aviation & Drones

Class Certification

Consumer Products

Coronavirus (COVID-19)

CPSC

Drug & Medical Device

Emergency Use Authorization (EUA)

Environmental Law

False Advertising

FCRA

Food Misbranding

Government Actions

Internet of Things

Mass Torts

Pharmaceutical & Medical Devices

Privacy

Product Liability

Public Readiness and Emergency Preparedness Act (PREP Act)

Retail

Trials

Topics

Blog - Editors

Blog - About

About

Blog - Subscribe

More

Alexandra Preece Barlow

Adam J. Hunt

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

CPSC Commissioners Abstain from Retracting Infant Sleep Product Statements

LinkedIN

Introduction.  Yesterday, on June 12, 2017, the Supreme Court issued its decision in Microsoft Corp. v. Baker et al., a closely watched case in the class action world, and one on which we previously reported <a href="http://classdismissed.mofo.com/class-certification/class-dismissed-but-not-quite-supreme-court-to-review-appealability-of-class-certification-denials-when-plaintiffs-voluntarily-dismiss-case/">here</a>.  Baker presented the following question:  Can a plaintiff who is denied class-action certification and denied Rule 23(f) permission to appeal create an appealable “final judgment” by voluntarily dismissing his or her claims with prejudice?  The Supreme Court’s answer is a resounding “no.”The Court’s decision will impact a number of class certification denials currently pending in the Ninth Circuit, which plaintiffs appealed based on similar Baker dismissals.  The decision also shuts the door to plaintiffs attempting an end-run around Rule 23(f)’s permissive appeal standard.  We describe the background, decision, and implications of Baker in more depth below. Baker Background.  The fact pattern in Baker mirrors that of other class certification decisions on appeal.  Plaintiffs sued Microsoft on behalf of themselves and a putative class of similarly situated consumers after they purchased allegedly defective X-Box consoles.  The district court struck the plaintiffs’ class allegations, effectively denying class certification.  The Court of Appeals denied plaintiffs permission to appeal under Rule 23(f).  Rather than pursue their individual claims, plaintiffs voluntarily dismissed the action, but reserved the right to revive their claims if the district court’s class certification decision was reversed.  Plaintiffs appealed, the Ninth Circuit reversed the district court’s decision, and Microsoft appealed to the Supreme Court. Majority and Concurring Opinions—Same Answer, Different Reasoning.  The Supreme Court unanimously rejected plaintiffs’ voluntary-dismissal tactic, but offered different explanations for why it was impermissible.  The majority opinion, authored by Justice Ginsberg and joined by Justices Kagan, Kennedy, Sotomayor, and Breyer, concluded that plaintiffs’ voluntary dismissal does not constitute a “final judgment” under 28 U.S.C. § 1291.  The concurring opinion, issued by Justice Thomas and joined by Justice Alito and Chief Justice Roberts,<a name="_ftnref1" href="#_ftn1">[1]</a> however, found the tactic impermissible under Article III.<ul><li>Majority—No “Final Judgment.”  The majority’s decision that plaintiffs’ voluntary dismissal is not a “final judgment” required for immediate appeal under § 1291 was based on two guiding principles:</li></ul>First, in Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978), the Supreme Court held that the “death knell doctrine”—i.e., that a refusal to certify could effectively end a putative class action where the cost of litigating substantially outweighed the value of the plaintiff’s individual claim—did not warrant mandatory appellate jurisdiction of an interlocutory class certification order.  The Court’s decision in Cooper was grounded in a number of factors: (i) the possibility for multiple appeals of class certification decisions based on different reasoning; (ii) the fact that appellate courts would be forced into the trial process; and (iii) the one-sidedness of the doctrine, which operated only in favor of plaintiffs despite the importance of class certification for defendants.  The availability of interlocutory review under § 1292(b)—which requires district court certification of “controlling questions of law”—would provide sufficient review of class certification order, the Coopers Court held.Plaintiffs’ voluntary-dismissal tactic, the majority in Baker held, was even more likely to invite protracted litigation and piecemeal appeals than the death-knell theory in Coopers, as courts under the death-knell doctrine could decline to hear a case if they believed the cost-benefit analysis did not apply.  Appeals courts facing voluntary dismissals similar to plaintiffs’ do not even have such a control here, the majority held.  The reasoning in Cooper, the majority concluded, accordingly applies with even stronger force here.Second, the majority looked to the purpose of Rule 23(f) for guidance.  That rule allows the court of appeal to grant permission to appeal an order granting or denying class certification.  In creating the Rule, the drafters struck a balance between the competing concerns in Coopers, providing class certification litigants with an alternative mechanism to appeal that did not require district court certification while simultaneously allowing appeals courts to control the process to prevent abusive litigation tactics.The majority held that plaintiffs’ voluntary dismissal “undercuts Rule 23(f)’s discretionary regime.”  They rejected plaintiffs’ argument that Rule 23(f) is irrelevant because plaintiffs appealed a “final judgment.”  “Plaintiffs in putative class actions cannot transform an interlocutory order . . . into a final judgment within the meaning of § 1291 simply by dismissing their claims with prejudice,” the Court held.  A decision to the contrary would undermine the purpose and process of Rule 23(f).<ul><li>Concurring Opinion—No Article III Jurisdiction.  The Concurring Opinion took a different approach, rejecting the Majority’s reading of “finality” under § 1291, and instead finding that plaintiffs’ appeal faltered under Article III of the Constitution.  When plaintiffs voluntarily dismissed their claims, they consented to judgment against them by the court, the concurrence reasoned.  After that, the parties were no longer adverse, and there was no longer a “case or controversy” as required for Article III jurisdiction.  The concurrence rejected plaintiffs’ argument that the possibility of pursuing a class action constitutes a “controversy,” as class claims require viable individual claims, which plaintiffs had relinquished.  Without an Article III “case or controversy,” the Ninth Circuit lacked jurisdiction to hear plaintiffs’ appeal.</li></ul> Takeaway.  Baker will have an immediate impact on a number of cases pending appeal, particularly in the food misbranding arena, where parties appealed based on stipulated dismissals to get clarity from the Ninth Circuit on applicable class certification standards.    Baker also removes a powerful weapon in plaintiffs’ counsel’s arsenal—they will no longer be able to force piecemeal litigation through long delays from class certification to appeal.  Overall, Baker is a win for companies facing class certification claims.<a name="_ftn1" href="#_ftnref1">[1]</a> Justice Gorsuch did not take part in the consideration or decision of the case.

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

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 mat

Claudia Vetesi

shutterstock_345183650_small_thumbnail.jpg

Supreme Court Slams the Back Door Around Rule 23(f) in Microsoft v. Baker

Supreme Court Slams the Back Door Around Rule 23(f) in Microsoft v. Baker

shutterstock_345183650_small_image.jpg

Introduction.  Yesterday, on June 12, 2017, the Supreme Court issued its decision in Microsoft Corp. v. Baker et al., a closely watched case in the class action

Introduction.  On May 22, 2017, plaintiff Jessica Gomez filed an opposition on behalf of a putative class of consumers urging a federal district court judge not to dismiss her lawsuit against Jelly Belly Co. (“Jelly Belly”) for allegedly misleading consumers by listing “evaporated cane juice” (ECJ) instead of “sugar” in the ingredient list of its “Sports Beans” candy.  The Gomez matter suggests that ECJ claims, previously dormant pending FDA’s issuance of final ECJ guidance, are now being filed and litigated since FDA issued its final guidance in May 2016. It remains to be seen, however, whether courts will dismiss these claims at the pleadings or summary judgment stage.Background on  FDA’s ECJ Guidance.  In 2009, FDA issued draft guidance stating that the term ECJ is false and misleading under Section 403(a)(1) of the FDCA because ECJ “does not accurately describe the basic nature of the food and its characterizing properties (i.e., that the ingredients are sugars or syrups, as required by 21 CFR 102.5.).”  In other words, FDA suggested that ECJ could mislead consumers into believing that a product did not include sugar.  Instead of finalizing its Draft Guidance, FDA reopened the comment period on March 4, 2014.  In the meantime, ­­several lawsuits in the Northern and Central Districts of California were stayed pending FDA’s issuance of its Final Guidance.  (See e.g., <a href="http://classdismissed.mofo.com/fda/judge-seeks-answers-from-fda-on-ecj-draft-guidance/">The (Not So) Sweet Sound of FDA’s Silence:  Judge Seeks Answers From FDA on ECJ Draft Guidance.</a>)  On May 25, 2016, FDA issued its <a href="https://www.fda.gov/Food/NewsEvents/ConstituentUpdates/ucm502680.htm">2016 ECJ Final Guidance</a> (“2016 Final Guidance”), upholding its previous finding that the use of ECJ is false and misleading and further stating that “sweeteners derived from sugar cane should not be listed in the ingredient declaration by names such as ‘evaporated cane juice,’ which suggest that the ingredients are made from or contain fruit or vegetable ‘juice’ as defined in 21 CFR 120.1.”  After FDA issued the 2016 Final Guidance, stays were lifted in multiple cases, and new complaints have been filed alleging that the use of ECJ, instead of sugar, on an ingredient list violates the FDCA and California’s corresponding Sherman Act.The Gomez case.  One of these new ECJ lawsuits was filed by Ms. Gomez in February 2017 against Jelly Belly in San Bernadino Superior Court.  Plaintiff alleged that she, and others similarly situated, were misled by Sports Beans’ ingredient list because it lists ECJ rather than sugar.  Plaintiff further alleges that she was harmed because she would not have purchased the Sports Beans, or paid as much for them, had she known that they contained sugar.  She brings claims for violations of California’s CLRA, FAL, UCL, and for negligent misrepresentation under common law.  The lawsuit was removed in March to the Central District of California and assigned to Judge Carney.Jelly Belly’s Defense:  FDA’s Guidance is Not Binding Law.  Jelly Belly filed a motion to dismiss on April 21, 2017, arguing that Ms. Gomez failed to allege facts sufficient to show that the label was misleading to consumers or that it was material to their decision to purchase the Sports Beans.  In moving to dismiss Plaintiff’s claims, Jelly Belly contends that FDA’s Final Guidance is not binding law.  Indeed, FDA explicitly states that its “guidance documents, including this guidance, do not establish legally enforceable responsibilities,” but instead “describe [FDA’s] current thinking on a topic and should be viewed only as recommendations, unless specific regulatory or statutory requirements are cited.”Plaintiff’s Reliance on FDA’s Guidance.  In response, Ms. Gomez does not dispute that FDA’s 2016 Final Guidance is not binding law.  Instead, she contends that it does not matter, because “the law was settled long ago by the relevant statutes and regulations.”  The FDA’s 2016 Final Guidance simply clarified FDA’s position that the use of ECJ instead of sugar is false and misleading under 21 U.S.C. §343(a)(1) and its accompanying regulations.<a href="#_ftn1" name="_ftnref1">[1]</a>  Therefore, Plaintiff argues that Jelly Belly’s use of the term ECJ instead of sugar on Sports Beans’ label violates these regulations and §343(a)(1).  FDA’s 2016 Final Guidance was simply underscoring the alleged violation.Takeaway.  We have <a href="http://classdismissed.mofo.com/?s=ECJ+Guidance">written</a> about courts issuing stays on ECJ claims pending FDA’s issuance of the 2016 Final Guidance.  Now that the guidance is finalized, these claims have been revived and, as indicated by Gomez, are still being filed.  Yet it remains to be seen whether ECJ claims can survive motions to dismiss and/or motions for summary judgment.  Indeed, none of the 17 cases filed in the Northern District of California have advanced beyond the pleadings.  In fact, Judge Chen recently dismissed in its entirety the ECJ claim in Swearingen v. Healthy Beverage, LLC because the label of the product at issue included a link to the product’s website, which “specifically states that ‘cane juice is natural sugar.’”<a href="#_ftn2" name="_ftnref2">[2]</a>  Similarly in Gomez, Jelly Belly argues that ECJ is listed right below the product’s sugar content on the Nutrition Facts Panel, so purchasers of the Sports Beans who read the label would know that it contains sugar.Although Judge Chen’s holding does not address Ms. Gomez’s argument regarding the FDA’s 2016 Final Guidance, it does suggest that plaintiffs who raise ECJ claims may be required to show that there is no other way for them to know that the product at issue contains sugar.We will provide updates with relevant developments.<a href="#_ftnref1" name="_ftn1">[1]</a> These regulations include the following: (1) 21 C.F.R. § 184.1854 (FDA’s definition of “Sucrose” as “a substance obtained by crystallization from sugar cane or sugar beet juice that has been extracted by pressing or diffusion, then clarified or evaporated”), (2) 21 C.F.R. 104(b)(20) (the common name for “sucrose” is “sugar”), (3) 21 C.F.R. 101.4(a)(1) (ingredients must be referred to by their common or usual name on food labels), (4) 21 C.F.R. 102.5(d) (the common or usual name of an ingredient is the name established by common usage or regulation), and (5) 21 C.F.R. 102(a) (the common or usual name of an ingredient must accurately describe the basic nature of the food or its characterizing properties).<a href="#_ftnref2" name="_ftn2">[2]</a> Swearingen v. Healthy Beverage, LLC, et al.,  No. 13-cv-04385-EMC (N.D. Cal. May 2, 2017) (Dkt. No. 92) (order granting motion to dismiss).

jellybeans-shutterstock_291088268-600px_thumbnail.jpg

The Revival of ECJ Lawsuits: Sweet Tooth For Plaintiffs, or Toothless Claims?

jellybeans-shutterstock_291088268-600px_image.jpg

Introduction.  On May 22, 2017, plaintiff Jessica Gomez filed an opposition on behalf of a putative class of consumers urging a federal district court judge not

The Revival of ECJ Lawsuits:  Sweet Tooth For Plaintiffs, or Toothless Claims?

The Ninth Circuit recently affirmed a district court’s dismissal of plaintiff’s unfair competition law and consumer legal remedies claims, finding that neither claim provided plaintiff with a private cause of action to enforce the substantiation provisions of California’s unfair competition and consumer protection law.  See Kwan v. SanMedica International, No. 15-15496.Background of the Case.  Plaintiff alleged that SanMedica International LLC made false representations regarding its product, SeroVital, including stating that the product provided a 682% mean increase in human growth hormone levels and that it was clinically tested.  SanMedica moved to dismiss.  The district court granted the motion, finding that plaintiff failed to specifically allege facts to support a finding that defendant’s claims regarding its product were actually false.  Instead, plaintiff merely alleged lack of substantiation—that the health benefits were not clinically proven—a claim unavailable to private plaintiffs.Private Right of Action for Substantiation Claims.  The Ninth Circuit confirmed that California law does not provide a cause of action for private citizens alleging that marketing claims lack proper scientific substantiation.  The Ninth Circuit cited National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc., (“King Bio”), where the California Court of Appeal for the Second District found that only prosecuting authorities, and not private plaintiffs, had the power to request that advertisers substantiate advertising claims.  The Ninth Circuit also noted that several federal and state courts have cited to King Bio as requiring that private citizens who bring suit under the UCL or CLRA properly allege proof that plaintiffs sustained injury from relying on marketing statements that were actually false.  Under these cases, a plaintiff bears the burden of proving that the marketing claims are false or misleading.  Accordingly, the district court rightfully concluded that neither the UCL nor CLRA provided plaintiff with a private cause of action to enforce the substantiation provisions of California’s unfair competition or consumer protection laws.Failure to Allege Claims Were False.  The Ninth Circuit also confirmed that the district court properly concluded that the second amended complaint failed to allege facts that would support a finding that defendant’s marketing claims were actually false.  Plaintiff had argued that her second amended complaint sufficiently alleged false misrepresentations in at least two ways.  First, she claimed that she adequately pled falsity by alleging that the “clinically tested” representation falsely implied that the marketing claims of SeroVital’s health benefits were clinically proven by credible scientific proof.  Second, she argued that the claims that growth hormone levels are associated with health benefits falsely implied that defendant’s product claims were based on credible scientific proof.  The Ninth Circuit found that these allegations were conclusory and failed to support or prove the falsehood of the claims.  Thus, plaintiff failed to meet her burden of alleging specific facts pointing to actual falsehood.  This constituted a fatal flaw.TakeawaysKwan confirms that there is no private right of action for lack of substantiation claims.  Although it is unclear how far the ruling in Kwan will go when consumer deception claims are pled, it can be used to defend cases where a lack of substantiation claim is camouflaged as a false representation claim.  In these cases, Plaintiff bears the burden of alleging non-conclusory facts showing that the statements are false.

cosmeticcream-shutterstock_130792052_thumbnail.jpg

Ninth Circuit Affirms No Private Right of Action to Enforce Lack of Substantiation Claims in SeroVital False Advertising Class Action Case

Ninth Circuit Affirms No Private Right of Action to Enforce Lack of Substantiation Claims in SeroVital False Advertising Class Action Case

cosmeticcream-shutterstock_130792052_image.jpg

The Ninth Circuit recently affirmed a district court’s dismissal of plaintiff’s unfair competition law and consumer legal remedies claims, finding that neither 

On April 13, 2017, in Azoulai v. BMW of N. Am. LLC (Case No. 16-cv-00589), the U.S. District Court for the Northern District of California dismissed a proposed consumer fraud class action against BMW of North America LLC (BMW) concerning the soft-closing automatic doors (SCA) in various BMW models. While many automotive defect claims are brought as pure product liability actions, the plaintiffs in Azoulai sought to “hybridize product liability and consumer fraud doctrines” in pursuit of a more lucrative fraud-based class action damages award. Encouragingly, the court rejected these efforts, finding that slamming doors are a known hazard (that was warned against) and that the consumer fraud doctrine was inapplicable.BackgroundIn 2002, BMW introduced SCA on certain automobile models. The SCA feature “auto-activates and pulls the door of the vehicle to the frame of the automobile and firmly closes it when the door is within 6mm of the closed position.” The Azoulai plaintiffs claimed that the “SCA crushed their fingers while drawing the doors of their vehicles to the closed position.” They contended that the SCA should have included a sensor that halted its operation if it detected small objects (like fingers) between the door and the frame of the vehicle. But rather than focus on their physical injuries, the plaintiffs alleged deception in their lawsuit against BMW. Specifically, they claimed that BMW “wrongfully induced Plaintiffs to purchase and/or lease their vehicles by concealing [the alleged defect], and that Plaintiffs would have paid less for their vehicles or would not have purchased or leased them at all had they known of the defect.”Plaintiffs sued for breaches of warranties, as well as violations of the California Consumer Legal Remedies Act (CLRA) and the California Unfair Competition Act (UCL). Plaintiffs did not bring product liability claims.StandingThe court held that the plaintiffs lacked standing because they did not allege facts showing an injury derived from the legal theories alleged in their pleading. To allege standing for fraud-based claims, a plaintiff must plead facts that establish an economic, as opposed to purely physical, injury. The court found that plaintiffs failed that test. Although their physical injuries might have conferred standing under a traditional product liability theory, plaintiffs “expressly decline[d] to assert [a product liability] claim,” opting instead to pursue fraud-based claims. As the court stated, “[r]ather than seeking to recover for their injuries, Plaintiffs bring this suit grounded in consumer fraud[.]” In short, plaintiffs’ actual injuries and theories of liability didn’t match.The court also concluded that plaintiffs had no basis for their contention that their vehicles “declined in value because the SCA lacked a [safety] sensor.” The court noted that plaintiffs did not allege that an added safety sensor was bargained for or was built in to the purchase price of the vehicles. The court further stated that plaintiffs did not allege that the SCA design received negative attention from the media, thus decreasing the value of their vehicles. Accordingly, the court rejected plaintiffs’ hybridization attempt, holding that they suffered no injury in fact related to BMW’s alleged fraud, and therefore lacked standing.Plaintiffs’ Deficient Claims The court further rejected arguments that BMW overstated the safety of the SCA and concealed a design defect in the technology. Specifically, plaintiffs alleged that BMW misrepresented that the SCA “safely” closes the doors of the vehicles and that BMW actively concealed that the SCA lacked a safety sensor. The court rejected these claims.BMW argued that its marketing statement that the SCA operates “safely” was mere puffery and, therefore, not actionable under the CLRA or UCL, and did not create a warranty. In order to be actionable (and not considered puffery), a statement must be “specific and measureable”—it cannot be generalized, vague, or unspecified.<a href="#_ftn1" name="_ftnref1">[1]</a> The court held that there is nothing “specific and measurable” about the word “safely.” This determination proved fatal to all of plaintiffs’ claims.To allege a concealment or “failure to disclose” claim under the CLRA or UCL, plaintiffs are required to allege that the undisclosed defect posed an unreasonable safety hazard. Plaintiffs’ claims failed for two reasons. First and foremost, they did not adequately allege existence of a defect in the design of the SCA. Second, the court noted that even if plaintiffs had established the existence of a defect, their claims would still fail because they were unable to allege an unreasonable safety risk posed by the SCA. “Humans have been slamming their fingers in doors since doors were invented,” noted the court, and “[s]lamming one’s finger in a car door, while plausibly hazardous, is an anticipated risk of using any door, and is a risk of which BMW expressly warns consumers.”ConclusionAzoulai illustrates the perils of overreaching. Had plaintiffs brought product (or strict) liability claims for the injuries allegedly caused by the SCA, and sought damages to compensate for their medical bills and reasonable related expenses, the outcome might have been different. However, electing to bring fraud-based class action claims with the hope of a larger payoff closed the door on any plaintiff recovery.<a href="#_ftnref1" name="_ftn1">[1]</a> Anunziato v. eMachines, Inc., 402 F. Supp. 2d 1139 (C.D. Cal. 2005).

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

bosman_erin_blog_150x150.png

bosman_erin_common_640x280.jpg

bosman_erin_heroretina_2700x1160.jpg

bosman_erin_mobileretina_750x1040.jpg

bosman_erin_social_600x600.jpg

Erin Bosman is chair of MoFo’s Class Actions and Mass Torts Practice Group and is a founder and co-head of the Artificial Intelligence 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 chair of MoFo’s Class Actions and Mass Torts Practice Group and is a founder and co-head of the Artificial Intelligence 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

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

shutterstock_73935952_small_thumbnail.jpg

Closing the Door on Hybrid Product Defect/Fraud Claims

Closing the Door on Hybrid Product Defect/Fraud Claims

shutterstock_73935952_small_image.jpg

On April 13, 2017, in Azoulai v. BMW of N. Am. LLC (Case No. 16-cv-00589), the U.S. District Court for the Northern District of California dismissed a proposed 

On April 13, 2017, United States District Judge Beverly Reid O’Connell for the Central District of California granted a motion to dismiss a class action complaint alleging that Hyundai sold cars with an alleged latent paint defect that caused the “self-healing” paint to bubble, peel, and flake.  Resnick et al. v. Hyundai Motor Am., Inc. et al., No. 8:16-cv-00593-BRO (PJWx), Dkt. No. 80.  The court dismissed plaintiffs’ warranty, negligent misrepresentation, fraudulent concealment, and state consumer protection claims without prejudice, with the exception of a Massachusetts Unfair and Deceptive Trade Practice Act claim, which was dismissed with prejudice.Consumers Challenge Alleged Paint Defect Under State Consumer Protection Laws.In March 2016, 15 individuals from 10 different states sued defendants Hyundai Motor America, Inc. and Hyundai Motor Co., Ltd.  Plaintiffs are current owners of 2006-2016 Hyundai Santa Fe, Sonata, and Elantra automobiles manufactured in the United States that have an alleged paint defect that manifests itself over time and causes the paint to bubble, peel, and flake.  Plaintiffs claim that Hyundai fraudulently concealed the alleged paint defect when plaintiffs purchased their vehicles and refused to offer plaintiffs or the putative class any relief.In November 2016, the court granted defendants’ motion to dismiss plaintiffs’ First Amended Complaint.  (Dkt. No. 57.)  Plaintiffs filed a Second Amended Complaint in November 2016, and stipulated to consolidate two cases against defendants in January 2017.  In February 2017, plaintiffs filed a Consolidated Class Action Complaint, alleging fourteen causes of action, including for breach of warranty, negligent misrepresentation, fraudulent concealment, and violations of various state consumer protection laws.Court Dismisses Express and Implied Warranty Claims.For the majority of plaintiffs, the court dismissed without prejudice the breach of express warranty claims because the alleged defect occurred outside Hyundai’s warranty period.  The court rejected plaintiffs’ argument that an exception should apply to hold Hyundai liable for latent defects outside the warranty period.  The court also dismissed plaintiffs’ warranty claims based on representations on Hyundai’s corporate website and advertising campaigns regarding the quality of the paint as outside the warranty period, which the court limited to the express warranty period.  The court granted leave to amend for two plaintiffs who may have experienced the alleged defect during the warranty period, but did not clearly allege those facts.The court dismissed without prejudice claims for breach of implied warranty of merchantability under California’s Song-Beverly Consumer Warranty Act.  The court held that the implied warranty of merchantability requires “something beyond mere aesthetic concerns,” and that plaintiffs only allege that the paint defect affected their vehicles’ aesthetics.  The court rejected plaintiffs’ argument that a breach of implied warranty of merchantability arises whenever a vehicle’s behavior fails to comport with industry standards.Court Dismisses Negligent Misrepresentation Claims Under the Economic Loss Rule.The court dismissed without prejudice plaintiffs’ negligent misrepresentation claims as barred under the economic loss rule.  Plaintiffs alleged that the paint defect caused “out of pocket losses associated with the paint defect, corrosion repairs and diminished value of [their] vehicle[s].”  Under the economic loss rule, the court held that these alleged damages were insufficient to support a negligent misrepresentation claim because they arose from harm to the product itself (i.e., the body of the car).  The court rejected plaintiffs’ argument that the economic loss rule did not apply because of the “special relationship” exception, which does not apply to those who have a direct contractual relationship with the defendants (like plaintiffs).Court Dismisses State Consumer Protection and Fraudulent Concealment Claims. Plaintiffs also brought claims based on fraudulent concealment and violations of California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act based on the allegations that:  (1) defendants made affirmative misrepresentations of fact, and (2) defendants fraudulently concealed their knowledge of the alleged paint defect.  The court dismissed these claims without prejudice based on plaintiffs’ failure to allege facts indicating that defendants knew or should have known of the alleged defect at the time of sale.  Plaintiffs’ general allegations that there were “concerns” regarding the possibility of self-healing paints peeling were insufficient to establish presale knowledge.  Plaintiffs failed to allege “who had these concerns, the substance of the concerns, or whether the concerns were ever communicated to Hyundai.”  The court also found that allegations regarding anonymous online complaints were not sufficient to establish defendants’ knowledge of the alleged defect.  The court further emphasized that, even if plaintiffs’ sufficiently pleaded knowledge, plaintiffs did not adequately plead specific reliance on the alleged affirmative misrepresentations.  The court dismissed plaintiffs’ non-California state consumer protection law claims without prejudice on similar grounds.Hyundai Takeaway.The opinion is quite rigorous in holding plaintiffs to their pleading burden.  As was done here, courts typically allow plaintiffs an opportunity to amend.

gettyimages-471741589_small_thumbnail.jpg

Court Dismisses Peeling Paint Class Action Against Hyundai, But Grants Third Opportunity to Amend

Court Dismisses Peeling Paint Class Action Against Hyundai, But Grants Third Opportunity to Amend

gettyimages-471741589_small_image.jpg

On April 13, 2017, United States District Judge Beverly Reid O’Connell for the Central District of California granted a motion to dismiss a class action complai

California’s innovative Safer Consumer Products regulations, also known as the Green Chemistry Initiative, are ready for another step forward with the proposed inclusion of Spray Polyurethane Foam (SPF) Systems containing Unreacted Methylene Diphenyl Diisocyanates (MDI) as a Priority Product. These SPF systems are used for insulation, roofing, or sealants and raise safety concerns because of their widespread use by both professional contractors and “do-it-yourself” users for home repairs. This is the second Priority Product proposed for listing, following the inclusion of children’s foam-padded sleeping products with fire retardants.

shutterstock_113396650-converted-01_thumbnail.jpg

California Adds New Priority Consumer Product for Green Chemistry Regulation

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

shutterstock_113396650-converted-01_image.jpg

California’s innovative Safer Consumer Products regulations, also known as the Green Chemistry Initiative, are ready for another step forward with the proposed 

California Adds New Priority Consumer Product for Green Chemistry Regulation

We have entered the next chapter in the ongoing saga of the Consumer Product Safety Commission’s (“CPSC”) regulation of high-powered, small, rare earth magnet sets (“SREMS”).<a href="#_ftn1" name="_ftnref1">[1]</a>  On March 1, 2017, CPSC met and unanimously approved removing the Magnet Sets Safety Standard from the Code of Federal Regulations.<a href="#_ftn2" name="_ftnref2">[2]</a>  On separate motion, the Commissioners split 3-2 along partisan lines in favor of revisiting rulemaking for magnet sets.  This decision follows the United States Court of Appeals for the Tenth Circuit’s November 2016 decision to vacate and remand to the Commission its earlier standard that effectively banned SREMS from sale in the U.S.<a href="#_ftn3" name="_ftnref3">[3]</a>Fight Over Safety Standard for Magnet SetsAs defined by CPSC, magnet sets are “[a]ny aggregation of separable magnetic objects that is a consumer product intended, marketed or commonly used as a manipulative or construction item for entertainment, such as puzzle working, sculpture building, mental stimulation, or stress relief.”  16 C.F.R. § 1240.2.  In 2014, CPSC issued a Final Rule on Safety Standard for Magnet Sets restricting the size and strength of the individual magnets in these sets.  Id. §§ 1240.1-1240.5.  While not categorically banned under the 2014 Safety Standard, SREMS could not be sold due to the standard’s severe size and strength restrictions.<a href="#_ftn4" name="_ftnref4">[4]</a>  Last November, Zen Magnets, LLC (“Zen”)<a href="#_ftn5" name="_ftnref5">[5]</a> successfully challenged CPSC’s regulation in the Tenth Circuit.  Zen Magnets, LLC v. Consumer Prod. Safety Comm’n, 841 F.3d 1141, 1155 (10th Cir. 2016).  The Tenth Circuit vacated and remanded CPSC’s 2014 Safety Standard for further proceedings consistent with the court’s finding that CPSC failed to meet the Consumer Product Safety Act’s requirements.  The court based its ruling on CPSC’s incomplete and inadequately explained factual findings.  Id. at 1144.Removal of Standard Following Court’s Vacatur CPSC’s vote to remove the 2014 Safety Standard was a procedural formality needed to remove the vacated magnet set standard from the Federal Register.  82 Fed. Reg. 12716-01 (Mar. 7, 2017).Regardless of CPSC’s action or response, the Tenth Circuit’s decision vacating the standard had the force of law immediately after the court filed its order on November 22, 2016.  Id.Motion to Revisit Magnet Set Safety Standard RulemakingDuring the March 1st decisional meeting, Commissioner Elliot Kaye separately moved to direct staff to prepare a draft notice of proposed rulemaking addressing the issues raised in the Tenth Circuit’s holding.<a href="#_ftn6" name="_ftnref6">[6]</a>  Commissioner Kaye’s motion directed CPSC staff to utilize CPSC’s existing data, as opposed to conducting further fact-finding.<a href="#_ftn7" name="_ftnref7">[7]</a>  During questions on the motion, Commissioner Robert Adler identified the issues in the Tenth Circuit opinion that needed to be addressed in the draft notice:  (1) CPSC’s use of an incorrect time frame for the data set in its cost-benefit analysis, Zen Magnets, 841 F.3d at 1149; (2) CPSC’s reliance on injury reports that only “possibly” involved magnet sets, id. at 1152; and (3) CPSC’s failure to consider the utility of magnet sets, id. at 1152-53.<a href="#_ftn8" name="_ftnref8">[8]</a>  CPSC estimated that it will take 11 staff months to prepare the draft notice.<a href="#_ftn9" name="_ftnref9">[9]</a>The Future of SREMS Regulation in Light of Shifting Tides at CPSCThis reshaping of magnet set regulation comes during an interesting time at CPSC.  As <a href="http://classdismissed.mofo.com/consumer-products/same-enforcement-trend-new-cpsc-leadership/">previously reported</a>, CPSC’s political makeup has recently shifted following CPSC’s February 9, 2017 announcement of Republican Ann Marie Buerkle as Acting Chairman.  Although the partisan balance of CPSC is likely to shift to the Republicans later this year, Acting Chairman Buerkle currently heads a Commission with three Democrat Commissioners.  At the March 1st meeting, the two Republicans, Acting Chairman Buerkle and Commissioner Joseph Mohorovic, cast the two votes against revisiting rulemaking for magnet sets.  Commissioner Mohorovic strongly opposed new safety standards, stating:I think this has gotten so personal with this agency of having a rule being . . . thrown out that we are ready to hurl ourselves headlong back into rulemaking. . . . We’re doing this without taking the time to either learn the lessons about why we failed the first time or to figure out if there’s still any need for the rule. . . . I think this is a factor of pure ego and this agency has taken the thoughtful opinion of the Tenth Circuit personally and we just want to win for winning’s sake.<a href="#_ftn10" name="_ftnref10">[10]</a>When Democrat Commissioner Marietta Robinson’s term ends in October 2017, President Trump will appoint a new commissioner, and Acting Chairman Buerkle and Commissioner Mohorovic’s position on magnet sets likely will become the majority view at CPSC.We will continue to monitor CPSC’s actions with regard to magnet sets and provide updates on any new proposed standards in light of the Tenth Circuit opinion in Zen Magnets and the shifting roster at CPSC.<a href="#_ftnref1" name="_ftn1">[1]</a>  For background regarding CPSC’s prior enforcement activity regarding SREMS, see our prior post.<a href="#_ftnref2" name="_ftn2">[2]</a>See 82 Fed. Reg. 11347-02 (Feb. 22, 2017) (notice of meeting).<a href="#_ftnref3" name="_ftn3">[3]</a>  Reported in full in our prior post.<a href="#_ftnref4" name="_ftn4">[4]</a>  Under the safety standard, SREMS that fell within the size sold by companies like Zen had to have a flux index of 50 kG2mm2 or less.  See 16 C.F.R. § 1240.3.  The SREMS in Zen Magnets had a magnetic flux index of 400 to 500 kG2mm2.  Zen Magnets, 841 F.3d at 1144.<a href="#_ftnref5" name="_ftn5">[5]</a>  Zen was the last remaining importer and distributor of SREMS by the time CPSC issued its 2014 Safety Standard.  See id. at 1146.<a href="#_ftnref6" name="_ftn6">[6]</a>  Video, Commission Meeting: Decisional Matter: Magnet Sets Safety Standard – Removal from the Code of Federal Regulations, Consumer Product Safety Commission (posted Mar. 2, 2017), <a href="https://cpsc.gov/Newsroom/Video/commission-meeting-decisional-matter-magnet-sets-safety-standard-removal-from-the">https://cpsc.gov/Newsroom/Video/commission-meeting-decisional-matter-magnet-sets-safety-standard-removal-from-the</a>.<a href="#_ftnref7" name="_ftn7">[7]</a>  Commission Meeting Video (posted Mar. 2, 2017).<a href="#_ftnref8" name="_ftn8">[8]</a>Id.<a href="#_ftnref9" name="_ftn9">[9]</a>Id.<a href="#_ftnref10" name="_ftn10">[10]</a>Id.

magnets_600_thumbnail.jpg

CPSC to Consider New Magnet Set Safety Standards Following 10th Circuit Decision in Zen Magnets

CPSC to Consider New Magnet Set Safety Standards Following 10th Circuit Decision in Zen Magnets