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

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Partner

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

Adam Hunt

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

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

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

Alexandra Barlow

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

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Senior Counsel

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

Penelope A. Preovolos

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

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Associate

Zak Newman

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

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Mitchell Hokanson

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Client Alert: Jury Returns Verdict in “Manufactured in the USA” False Advertising Case

Everyone Please Stand: Supreme Court to Consider Standing Requirements for Class Actions, With the Potential to Resolve Long-standing Multi-circuit Split.

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The House of Representatives has passed legislation that will fundamentally change class actions as we know them.  The Fairness in Class Action Litigation Act of 2017 (the “Act” or “H.R. 985”) leaves no stage of class action litigation untouched.  For example, the provisions require stricter “typicality” requirements for class members, the disclosure of conflicts of interest between class counsel and named plaintiffs, an administratively feasible way to identify class members, capping distribution fees to class counsel, staying discovery pending motion practice, and automatic appeals of class certification rulings.  The bill also proposes changes to the multidistrict litigation (MDL) procedure, including that plaintiffs claiming personal injury must submit evidence of the harm and causation within 45 days of filing or transfer.H.R. 985 is not an isolated bill—it is part of a larger effort to pass litigation reform through Congress in the era of President Trump.  There are five other pending bills related to legal reform that address issues such as the fraudulent joinder of parties (H.R. 725), EPA Settlement of citizen suits (H.R. 469), Department of Justice settlement funds (H.R. 732), sanctions for frivolous litigation (H.R. 720), and reporting of payments to plaintiffs in asbestos cases (H.R. 906).  All six bills are expected to pass (or have passed) the House.  Given the sweeping nature of the bills, many of the issues are likely to be hotly contested as the bills head to the Senate.BackgroundOn February 9, 2017, Representative Robert Goodlatte (R-Va.) introduced H.R. 985, which, if enacted, would fundamentally alter class action litigation.  Rep. Goodlatte is no stranger to class action reform.  He was the author of the 2005 Class Action Fairness Act (CAFA) and has introduced a variety of proposed class action reforms since that time.  The Act, however, is by far the most comprehensive reform proposed since CAFA.The U.S. Chamber of Commerce is also a leading supporter of the Act, and recently published a case study likely intended to demonstrate a need for legal form:  The Food Court, Trends in Food and Beverage Class Action Litigation.  (U.S. Chamber Institute for Legal Reform, February 2017.)  In addition to providing an overview of the surge in food class actions and theories, the publication discusses the need for legislative action to ensure class actions benefit consumers instead of lawyers.From Cradle to Grave:  Examples of the Act’s Broad Changes to Every Aspect of Class Action LitigationH.R. 985 proposes changes to every aspect of class action litigation, from inception to settlement.  Below is a summary of some of the key provisions of the bill.   Class Member Typicality.  Current law requires that class representatives have claims that are “typical” of the other class members.  Under the Act, class representatives are subject to a heightened typicality requirement:  they must demonstrate that each proposed class member suffered the same type and scope of injury they did.  This change would ensure that class actions are only available where the named plaintiffs can show that all class members incurred actual harm.  It would prohibit plaintiffs from including uninjured individuals in their class definition—a question the United States Supreme Court ducked in Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016), and that is the subject of a Circuit split.Plaintiffs’ firms have already lambasted the provision as limiting the availability of the class action device for individuals who are affected by alleged abuses in different ways.  On the other hand, the proposed change would ensure that class actions are addressing real consumer harms and not imaginary harms for the benefit of class action attorneys.Class Counsel Conflicts of Interest. The Act requires class counsel to disclose whether the proposed class representative is a relative, former or current employee, or former or current client (aside from the current action).  If the proposed representative falls into any of those categories, the court is prohibited from certifying the class.  This provision would send major shockwaves through the plaintiffs’ bar, as many class representatives are repeat players and have some relationship to class counsel.Ascertainability:  Administratively Feasible Method of Identifying Class Members.  The Act officially adds an “ascertainability” prong to the class certification inquiry.  Under the Act, a class representative must demonstrate that there is a reliable and administratively feasible means to identify class members and to distribute payment to the class.  This change would resolve a current Circuit split regarding the ascertainability requirement and would side with the Third Circuit’s decision in Carrea v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), and overrule the Ninth Circuit’s recent decision in Briseno v. ConAgra Foods, Inc., ___ F.3d ___ (Jan. 3, 2017), which held that Rule 23 does not require plaintiffs to establish an “administratively feasible” means of identifying putative class members.While the Act does not address whether affidavits attesting to class membership would be considered a feasible mechanism, this added provision would strengthen the case for affirmance (or even moot the appeal) of the Northern District of California’s decision in Jones v. ConAgra Foods, Inc., 3:12-cv-01633 (June 14, 2014), wherein the court found that such affidavits were insufficient when there were multiple label changes and the purchase price was small.[1] This provision could have broad implications, as it could effectively eliminate class actions against companies that sell small dollar items and do not track who obtains their products.Limitations on Class Counsel’s Recovery of Attorneys’ Fees.  The Act also aims to curb actions where the main beneficiaries of the actions are the class counsel.  The Act prohibits fee distribution until the distribution of monetary relief to the class has been completed, and the fee determination must be based on the money actually distributed to the class.  In no event can the attorney fee award exceed the amount of monetary relief received by the class; however, class counsel can still receive compensation for obtaining equitable relief.  This provision could also be costly for defendants, as plaintiffs are likely to insist on more expansive and expensive class notice to increase claims rate.No Issue-Only Classes.The Act prohibits courts from granting certification to a class as to a particular issue under Rule 23(c)(4) unless the entirety of the cause of action satisfies all the class certification requirements of Rules 23(a) and (b).  This provision is an attempt to limit the class action device where there is no classwide damage, and it is an effort to overrule the Sixth and Seventh Circuit Whirlpool cases, Glazer v. Whirlpool Corp., 722 F.3d 838 (6th Cir. 2013) and Butler v. Sears, Roebuck and Co., 727 F.3d 796 (7th Cir. 2013), in which the plaintiffs were able to avoid Comcast v. Behrend, 133 S.Ct. 1426 (2013), (only a small percentage of the class has a defect manifest) by certifying liability-only classes.  The Supreme Court in Comcast held that certification was improperly granted where plaintiffs had not shown that common issues predominated as to damages.Stay of Discovery Pending Motions.  The Act also stays discovery during the pendency of any motion to transfer, dismiss, or strike class allegations, unless the court finds that particularized discovery is necessary to preserve evidence or prevent undue prejudice.  This change would enable defendants to fight claims without being subject to costly discovery.  This change could be viewed as at odds with the recent amendments to the Federal Rules of Civil Procedure, which permit parties to serve discovery even prior to the initial case management conference.Right to Appeal Class Certification Decisions.  Grants or denials of class certification would be immediately appealable—eliminating the courts of appeals’ discretion in determining whether such decisions warrant review.  While this would give defendants an immediate appeal for an erroneous class certification decision, it would likely increase plaintiffs’ appeals as well.  This would also effectively eliminate the issue pending before the Supreme Court in Baker v. Microsoft, No. 15-457, which is whether a court of appeals has jurisdiction to hear an appeal of a denial of class certification where the plaintiffs voluntarily dismiss the action with prejudice, as plaintiffs would no longer need to dismiss the claim to obtain review.MDL Procedural Changes.  While the Act provides for several procedural changes, the most noteworthy change is that in any consolidated or coordinated MDL proceeding seeking recovery for personal injuries, the plaintiff must submit evidentiary support, including medical records, for the alleged injury, the exposure that allegedly caused the injury, and the alleged cause of the injury within 45 days of transfer or filing.  No extensions of this deadline are permitted.ConclusionThe Act would change the landscape of class action litigation.  We expect passage of the key provisions of the Act in the Senate to be contentious. We will continue to track the Act through the legislative process and will update this client alert with any developments.[1] Jones is currently stayed pending the Supreme Court’s decision in Baker v. Microsoft, No. 15-457.

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

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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 mat

Claudia Vetesi

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

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House Passes Bill Proposing Sweeping Changes to Class Action Litigation

Trump Nominates Buerkle as Permanent CPSC Chair

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The House of Representatives has passed legislation that will fundamentally change class actions as we know them.  The Fairness in Class Action Litigation Act o

House Passes Bill Proposing Sweeping Changes to Class Action Litigation

Republican Ann Marie Buerkle was named Acting Chairman of the Consumer Product Safety Commission (CPSC) on February 9, 2017, replacing former Chairman and Democrat Elliott Kaye. This transition has many wondering whether the trend of increased CPSC enforcement, and its pledge to issue increased civil penalties, will continue under Buerkle’s leadership.CPSC Enforcement Under Former Chairman KayeAs we have <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltba3468f449d4f4e8/62731590a1a1dd2aa9f6c986/150303cpscpenaltiestoincrease.pdf" target="_blank">previously reported</a>, over the last few years CPSC has stepped up its enforcement actions against retailers, distributors, and manufacturers for unsafe products and associated reporting violations. Under former Chairman Kaye’s leadership, the agency also pledged to, and did, increase the monetary amount of civil penalties issued against companies for failure to report potentially hazardous products.CPSC’s increased focus on fines is backstopped by the Consumer Product Safety Improvement Act of 2008, which increased the maximum penalties from $8,000 to $100,000 per occurrence for failure to report a product safety hazard, and increased the maximum penalty amounts for a related series of violations from $1.8 million to $15 million. Recently, CPSC has used its authority to impose higher penalties on manufacturers, distributors, and retailers to reach settlements with significant price tags for settling companies.<a href="#_ftn1" name="_ftnref1">[1]</a> In 2016, the average reported CPSC penalty was over $6 million, more than double the average in 2015.<a href="#_ftn2" name="_ftnref2">[2]</a> Under Kaye, CPSC escalated its enforcement efforts by filing litigation against companies for failing to report product safety hazards.<a href="#_ftn3" name="_ftnref3">[3]</a> Former Chairman Kaye spoke out often about using increased civil penalties and frequently released press statements to highlight fines, enforcement actions, and recalls. Kaye viewed higher civil penalties as a “real deterrent” aimed at forcing manufacturers, retailers and distributors into reporting potential product safety issues early.<a href="#_ftn4" name="_ftnref4">[4]</a>Outlook: Will The Trend Of Increased Enforcement Continue?Acting Chairman Buerkle is a former New York Congresswoman who was nominated to serve as a CPSC commissioner by President Barack Obama in 2013. Buerkle’s ascension to acting chairman has many wondering whether the trend of increased enforcement will continue, particularly in light of the fact that Buerkle has been a vocal critic of the trend of seeking increased penalties. Under Kaye’s leadership, Buerkle was “deeply troubled by recent pronouncements that the Commission will seek higher civil penalties.”<a href="#_ftn5" name="_ftnref5">[5]</a>As acting chairman, Buerkle has instead emphasized a collaborative approach that brings all stakeholders together to forge new solutions that work for all. Buerkle has <a href="https://www.cpsc.gov/Newsroom/News-Releases/2017/Ann-Marie-Buerkle-Elevated-To-Serve-As-Acting-Chairman%20of-US-Consumer-Product-Safety-Commission" target="_blank">stated</a> that she is committed to working “to enhance relationships so that CPSC can leverage the knowledge, insight, and expertise of the entire consumer product safety community.” At the same time, she has <a href="https://www.cpsc.gov/Newsroom/News-Releases/2017/Ann-Marie-Buerkle-Elevated-To-Serve-As-Acting-Chairman of-US-Consumer-Product-Safety-Commission" target="_blank">emphasized</a> that “[w]hile we are experiencing a change in leadership, CPSC’s mission remains the same and I look forward to continuing to work closely with all stakeholders in my new position.” Although Buerkle’s position as acting chairman may not be set in stone, the partisan balance of CPSC will very likely shift towards Republicans this year. Three Democrat and two Republican commissioners currently head CPSC.<a href="#_ftn6" name="_ftnref6">[6]</a>  Democrat commissioners Kaye, Robert Adler,<a href="#_ftn7" name="_ftnref7">[7]</a> and Marietta Robinson<a href="#_ftn8" name="_ftnref8">[8]</a> have all been outspoken in their support of the trend of increased penalties. The term of Democrat Commissioner <a href="https://cpsc.gov/About-CPSC/Commissioners/Marietta-Robinson" target="_blank">Marietta Robinson</a>, however, expires in October 2017. At that time, President Trump will have the opportunity to appoint a new commissioner that aligns with his vision of the agency. Given this shift under the new administration, CPSC will almost certainly back away from the rhetoric of severe penalties and enforcement that prevailed under Chairman Kaye’s leadership. We will continue to monitor CPSC’s enforcement approach as it unfolds in the coming months.<a href="#_ftnref1" name="_ftn1">[1]</a>“CPSC Penalties to Increase Beyond ‘Cost of Doing Business,’” Morrison & Foerster LLP Client Alert, Mar. 3, 2015, available at <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltba3468f449d4f4e8/62731590a1a1dd2aa9f6c986/150303cpscpenaltiestoincrease.pdf" target="_blank">https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltba3468f449d4f4e8/62731590a1a1dd2aa9f6c986/150303cpscpenaltiestoincrease.pdf</a>.<a href="#_ftnref2" name="_ftn2">[2]</a> See Civil and Criminal Penalties Database, Consumer Product Safety Commission, available at <a href="https://www.cpsc.gov/Business--Manufacturing/Civil-and-Criminal-Penalties" target="_blank">https://www.cpsc.gov/Business–Manufacturing/Civil-and-Criminal-Penalties</a>.<a href="#_ftnref3" name="_ftn3">[3]</a> “Recall, Enforce, Repeat! CPSCP and DOJ Team Up for Another Enforcement Action,” Morrison & Foerster LLP Class Dismissed Blog, June 22, 2015, available at <a href="http://classdismissed.mofo.com/consumer-products/recall-enforce-repeat-cpsc-and-doj-team-up-for-another-enforcement-action/">http://classdismissed.mofo.com/consumer-products/recall-enforce-repeat-cpsc-and-doj-team-up-for-another-enforcement-action/</a>.<a href="#_ftnref4" name="_ftn4">[4]</a> See, e.g., “Joint Statement of Chairman Elliot F. Kaye and Commissioner Robert S. Adler on Civil Penalties,” Consumer Product Safety Commission Statements, July 20, 2016, available at <a href="https://www.cpsc.gov/about-cpsc/chairman/elliot-f-kaye/statements/joint-statement-of-chairman-elliot-f-kaye-and" target="_blank">https://www.cpsc.gov/about-cpsc/chairman/elliot-f-kaye/statements/joint-statement-of-chairman-elliot-f-kaye-and</a>.<a href="#_ftnref5" name="_ftn5">[5]</a> “Overseeing the Consumer Product Safety Commission”: Testimony Before the S. Comm. on Commerce, Science, and Transportation and Subcomm. on Consumer Protection, Product Safety, Insurance, and Data Security, (June 17, 2015) (testimony of Ann Marie Beurkle, Consumer Product Safety Commission), available at <a href="https://www.cpsc.gov/s3fs-public/Buerkle-Senate-Testimony.pdf" target="_blank">https://www.cpsc.gov/s3fs-public/Buerkle-Senate-Testimony.pdf</a>.<a href="#_ftnref6" name="_ftn6">[6]</a> See “Commissioner Biographies,” Consumer Product Safety Commission, available at <a href="https://cpsc.gov/About-CPSC/Commissioners" target="_blank">https://cpsc.gov/About-CPSC/Commissioners</a>.<a href="#_ftnref7" name="_ftn7">[7]</a> See, e.g., “Joint Statement of Chairman Elliot F. Kaye and Commissioner Robert S. Adler on Civil Penalties,” Consumer Product Safety Commission Statements, July 20, 2016, available at <a href="https://www.cpsc.gov/about-cpsc/chairman/elliot-f-kaye/statements/joint-statement-of-chairman-elliot-f-kaye-and" target="_blank">https://www.cpsc.gov/about-cpsc/chairman/elliot-f-kaye/statements/joint-statement-of-chairman-elliot-f-kaye-and</a>.<a href="#_ftnref8" name="_ftn8">[8]</a> See, e.g., “Statement of Commissioner Marietta S. Robinson on the Appropriateness of Civil Monetary Penalties Generally and The Recent Settlements with Teavana Corporation and Jarden Consumer Solutions,” Consumer Product Safety Commission Statements, June 10, 2016, available at <a href="https://www.cpsc.gov/about-cpsc/commissioner/marietta-s-robinson/statements/statement-of-commissioner-marietta-s-robinson" target="_blank">https://www.cpsc.gov/about-cpsc/commissioner/marietta-s-robinson/statements/statement-of-commissioner-marietta-s-robinson</a>.

Fertility Center Litigation

Fitbit

MicroPort

Leading Healthcare, Pharmaceutical, and Medical Device Company

Lethal Injection Matters – Major Pharmaceutical Company

Pain Pump Matters – Large Pharmaceutical Company

Major Technology Company

Leading Chemical Company

Security Device Company

In re Air Crash Near Peixoto de Azevedo, Brazil

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Co-Chair, Litigation Department

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

Erin M. Bosman

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

Erin Bosman

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

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

Julie Park

Julie Park | Product Liability Lawyer

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

Julie Y. Park

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A Changing of the Guard: Same Enforcement Trend under New CPSC Leadership?

A Changing of the Guard: Same Enforcement Trend under New CPSC Leadership?

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Republican Ann Marie Buerkle was named Acting Chairman of the Consumer Product Safety Commission (CPSC) on February 9, 2017, replacing former Chairman and Democ

On February 2, 2017, the Central District of California terminated a false advertising lawsuit against Schwabe North America, Inc. and Nature’s Way Products, LLC (Defendants), based on allegations that the companies misrepresented the cognitive benefits of two Ginkgo biloba products.  Sonner v. Schwabe North America, Inc. et al., Case No. 15-1358-VAP (C.D. Cal., filed July 7, 2015).  The court granted Defendants’ motion for summary judgment, finding that Plaintiff Kathleen Sonner (Plaintiff) had failed to establish that the claimed memory benefits were provably false.Background of the Case.  On July 7, 2015, Plaintiff Kathleen Sonner filed a class action against Defendants, alleging that the companies had falsely advertised that Ginkgold and Ginkgold Max products had cognitive benefits, including mental sharpness, memory, and concentration.  The complaint alleged claims under the Wisconsin Unfair Trade Practices Act (UTPA), California’s Unfair Competition Law (UCL) and Consumers Legal Remedies Act (CLRA), and breach of express warranty.  Ms. Sonner sought to represent a class of consumers who had purchased the Ginkgold and Ginkgold Max products in the United States.Plaintiff Had Standing to Pursue Claims for Products Not Purchased.  Defendants argued that Plaintiff lacked standing to pursue claims as to the Ginkgold Max product, which Plaintiff never purchased.  The court disagreed, finding that she had standing to assert claims for unnamed class members because the two products were “essentially identical.”  The only purported difference between the products—the level of active ingredient EGb 761—was irrelevant since the dispute was whether any amount of EGB 761 provided cognitive benefits.Plaintiff Failed to Show the Cognitive Benefits Advertisements Were False or Misleading.  Defendants argued that Plaintiff’s UCL and CLRA claims were barred because they were “lack of substantiation claims,” which may not be brought by private individuals.  But the court found that Plaintiff did more than claim that Defendants lacked substantiation for their advertising claims; she provided evidence of scientific reports concluding that Ginkgo biloba does not appear to provide cognitive health benefits.  As such, the relevant inquiry was whether a reasonable juror could find that Plaintiff had proven that Defendants’ advertising claims were false or misleading.To resolve that inquiry, the court analyzed each side’s proffered evidence, including quantitative meta-analyses and clinical studies, in what the court called the “Battle of the Experts.”  Plaintiff criticized Defendants’ reliance on less recent studies and criticized the fact that Defendants’ studies conflicted with what Plaintiff claimed was the most authoritative source of review and synthesis.  But the court found that merely taking issue with the strength of the studies was not enough to prove their falsity.Plaintiff also argued that Mullins v. Premier Nutrition Corp., 178 F. Supp. 3d 867 (N.D. Cal. 2016) compelled her recovery.  In that case, the plaintiff brought almost identical UCL and CLRA claims against a defendant that had advertised the health benefits of its product.  The court in Mullins found that plaintiff had met her burden to establish that a reasonable jury could find that defendant’s claims were provably false by offering principled, supported critiques of the studies relied upon by defendants.  The Plaintiff in Mullins was also entitled to recover under a theory that the representations were misleading because a reasonable juror could conclude that the “vast weight of the competent evidence establishe[d] that th[e] health claims [were] false.”The court found that Mullins did not support recovery.  Unlike in Mullins, the Plaintiff failed to offer “principled, supported critique” of “each of the studies finding beneficial effects.”  Nor did Plaintiff challenge the methodology, structure, or independence of any of the studies.  As such, Plaintiff failed to meet her burden of proving falsity.For these reasons, the court held that Defendants were entitled to summary adjudication as to Plaintiff’s UCL and CLRA claims.  The court also granted Defendants’ motion with regards to Plaintiff’s UTPA claim and breach of express warranty claim finding that Plaintiff had failed to identify any express warranty.Takeaway.  Companies should carefully consider which scientific evidence they use to support defenses in false advertising cases, and should be on the lookout for outside studies that may challenge the methodology, structure, or independence of proffered scientific evidence.

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District Court Sacks Ginkgo Biloba False Advertising Case

District Court Sacks Ginkgo Biloba False Advertising Case

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On February 2, 2017, the Central District of California terminated a false advertising lawsuit against Schwabe North America, Inc. and Nature’s Way Products, LL

A trap for unwary manufacturers and retailers is the California Air Resources Board (CARB) regulations for consumer and other products sold in the state. These rules limit the concentrations of volatile organic compounds (VOCs) and other greenhouse gas–producing chemicals. CARB enforces these regulations with civil penalties and demands for stipulated injunctions. The regulations often apply a step-down approach to require ever-smaller amounts of these chemicals over an extended time period.

California’s New Spray Adhesive and Aerosol Coatings Requirements – Will You Be Ready on January 1?

A trap for unwary manufacturers and retailers is the California Air Resources Board (CARB) regulations for consumer and other products sold in the state. These 

California’s New Spray Adhesive and Aerosol Coatings Requirements – Will You Be Ready on January 1?

A federal district court in Wisconsin recently ruled against a product manufacturer, finding it liable for failing to report timely in a rare U.S. Consumer Product Safety Commission (CPSC)‑backed lawsuit.  United States v. Spectrum Brands, Inc., No. 15-CV-371-WMC, 2016 WL 6835371, at *24 (W.D. Wis. Nov. 17, 2016).  While CPSC actively oversees voluntary recalls,<a href="#_ftn1" name="_ftnref1">[1]</a> it seldom brings suit in court.  In Spectrum Brands, the Wisconsin district court interpreted the Consumer Product Safety Act (CPSA) to grant CPSC broad latitude in seeking and levying penalties for failure to report potential product safety hazards.BACKGROUNDIn November 2014, Spectrum merged with Applica Consumer Products, Inc. (“Applica”), leaving Spectrum to assume all of Applica’s assets and liabilities.  Between 2008 and 2012, Applica imported coffeemakers from China and sold them in the United States.  During the same period, Applica received numerous customer complaints that the coffeemaker’s carafe handle would break and spill hot coffee.  In March 2012, Applica was sued over the carafe handles.  Applica submitted a Section 15(b) report to CPSC in April 2012, followed by a voluntary recall of the coffeemakers in June 2012.SUMMARY OF ISSUESProcedural BackgroundThe DOJ, on behalf of CPSC, sued Spectrum seeking civil penalties and permanent injunctive relief for Spectrum’s alleged violation of reporting requirements under Section 15(b) of the CPSA.  The court considered a number of different motions in this ruling.  Early in the case, Spectrum moved to dismiss the government’s request for injunctive relief for failure to state a claim and for summary judgment on statute of limitations grounds.  Spectrum later moved for summary judgment on due process, Section 15(b) safe harbor, and other grounds.  The government also moved for summary judgment on its claims.Fair Notice under Due Process ClauseSpectrum moved for summary judgment on the ground that CPSC violated Spectrum’s due process right to fair notice by inconsistently determining whether similar defects and injuries triggered a reporting obligation.  The court rejected this argument, noting that the threshold for reporting a potential defect is a lower standard than whether a substantial product hazard actually exists.  The court explained that this disparity “is confirmed in practice, as less than 20% of non‑fast track Section 15(b) reports result in the CPSC finding that a substantial product hazard exists.”  The court further explained the perceived inconsistency in CPSC enforcement by noting that a number of factors, including the nature of defect and the number and severity of injuries, could reasonably lead to different results in analogous cases.Statute of LimitationsSpectrum also moved for summary judgment on the ground that the government’s civil penalty claims were time-barred.<a href="#_ftn2" name="_ftnref2">[2]</a>  The parties agreed a five-year statute of limitations applied to the government’s claims under 28 U.S.C. § 2462 because the CPSA does not have its own statute of limitations.  However, the parties disagreed as to when the claims first accrued.  The court endorsed the “continuing violation doctrine,” finding that a Section 15(b) action for a company’s alleged failure to make a timely report accrues not when the company first fails to report, but when its reporting obligation ends.  In other words, a claim accrues when a company eventually submits a late report or gains actual knowledge that the government is adequately informed.  The government’s claims were therefore timely in this case.Spectrum’s Duty to Report under Section 15(b)“Adequately informed” safe harbor.  The court rejected Spectrum’s argument that it fell within Section 15(b)’s safe harbor provision, which does away with a company’s obligation to report hazards if CPSC is already “adequately informed.”  It found that CPSC was not “adequately informed” of the risk posed by the coffeemakers because CPSC did not have the same material information as Spectrum.  Although CPSC knew about the defect and injuries, the court concluded this was not enough to trigger the safe harbor as CPSC’s knowledge must also overlap sufficiently with the defendant’s knowledge.  The court found that Spectrum knew of over a thousand more failures and dozens more injuries than did CPSC.Spectrum failed its section 15(b) obligation to report.  Reaching the merits of the case, the court held that no reasonable jury could find that Spectrum “immediately” informed CPSC about the potential product hazard.  The court noted that Spectrum’s duty was triggered at the very least by May 2009.  At that time, Spectrum was aware of reports of 60 broken handles and four burns.  It had also identified a similar cause of the breakages in two separately returned carafes and had implemented design changes in an attempt to remedy the handle issue.Availability of Injunctive ReliefAlong with civil penalties under the CPSA, the government sought injunctive relief and liquidated damages or the creation of an escrow account for continued violations.  Spectrum moved to dismiss as a matter of law on the grounds that the allegations in the complaint and the CPSA itself did not support such injunctive relief.  The court found dismissal of the request for injunctive relief premature at the pleadings (and even summary judgment) stage without further factual development.  However, the court noted that Spectrum provided reason to doubt the government’s ability to show that the broad scope of the injunctive relief was necessary.  The court therefore postponed the consideration of any proposed permanent injunction until further factual development.KEY TAKEAWAYS“When in doubt, report.”  The court’s decision echoes CPSC’s more recent signals to proactively heed Section 15(b) reporting requirements.  As the court notes: “[C]ompanies are strongly encouraged not to wait to report until a product defect causes a serious injury, but rather to report when they first appreciate that their product may contain a defect that could injure people, even when the risk of serious injury is in doubt.”CPSC has plenty of time to bring suit.  Companies are not necessarily in the clear after voluntary corrective action or submitting a late Section 15(b) report.  Other courts are likely to follow this court’s holding that the government’s five-year statute of limitations does not accrue until a company submits a late report or gains actual knowledge that the government is adequately informed of the product hazard.Potentially broad injunctive relief.  The parties now await the civil penalty determination and injunctive relief phase of the case.  Both of these issues will be significant as the court hints that the government may be asking for too much with its request for injunctive relief, depending on the language of the permanent injunction.  Thus, this case could continue to provide insight into CPSC enforcement policy as these issues are decided.<a href="#_ftnref1" name="_ftn1">[1]</a> <a href="https://www.law360.com/articles/742154/looking-back-at-another-very-active-year-for-the-cpsc" target="_blank">https://www.law360.com/articles/742154/looking-back-at-another-very-active-year-for-the-cpsc</a> (subscription required)<a href="#_ftnref2" name="_ftn2">[2]</a> <a href="/consumer-products/statute-of-limitations-taking-the-steam-out-of-cpsc-backed-enforcement-action/" target="_self">https://classdismissed.mofo.com/consumer-products/statute-of-limitations-taking-the-steam-out-of-cpsc-backed-enforcement-action/</a>

Rare Court Decision in CPSC-Backed Enforcement Action

A federal district court in Wisconsin recently ruled against a product manufacturer, finding it liable for failing to report timely in a rare U.S. Consumer Prod

Rare Court Decision in CPSC-Backed Enforcement Action