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

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Partner

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

Julie Y. Park

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

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Senior Counsel

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

Penelope A. Preovolos

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

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

Claudia M. Vetesi

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

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

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

Alexandra Barlow

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

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

Adam Hunt

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Alexandra Preece Barlow

Adam J. Hunt

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

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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, 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>

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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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

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

The Federal Trade Commission’s recent workshop on drones raised familiar issues related to the privacy implications of a new and evolving technology. While the many potential innovations and consumer benefits of drone technology were highlighted, the workshop’s focus was on whether drones raise unique privacy considerations and, if so, how such considerations should be addressed.

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

Julie O'Neill

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

FTC Workshop on New Drone Technologies Raises Familiar Privacy Issues

The Federal Trade Commission’s recent workshop on drones raised familiar issues related to the privacy implications of a new and evolving technology. While the 

FTC Workshop on New Drone Technologies Raises Familiar Privacy Issues

California’s Department of Toxic Substances Control (DTSC) has released the results of aquatic toxicity testing on over-the-counter remedies, health and beauty products, and cleaning products. The results indicate that over one-in-four of the tested everyday products fail the department’s acute aquatic toxicity fish bioassay test, and thus, according to DTSC, they should be managed upon disposal as hazardous waste.Read our <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltcb0dbed0a8dcd43e/6273159a23c6cf2a1c3af52b/161004-consumer-products-hazardous-waste.pdf" target="_blank">client alert</a>.

Consumer Products Face New Challenge: State Finds That Many Common Products Must be Managed as Hazardous Waste When Disposed Of

California’s Department of Toxic Substances Control (DTSC) has released the results of aquatic toxicity testing on over-the-counter remedies, health and beauty 

Consumer Products Face New Challenge: State Finds That Many Common Products Must be Managed as Hazardous Waste When Disposed Of

The Ninth Circuit Court of Appeals’ recent decision in Haskins v. Symantec Corp., Case No. 14-16141 (9th Cir. June 20, 2016), supports the requirement that plaintiffs must allege exposure to and reliance on specific misrepresentations in order to maintain fraud claims.  Plaintiff Kathleen Haskins alleged Symantec had violated unfair competition laws (UCL) by waiting until 2012 to inform customers that previous versions of its antivirus software may have vulnerabilities due to a 2006 data breach.In June 2014, U.S. District Judge Jon S. Tigar dismissed plaintiff’s Third Amended Complaint because plaintiff had not cited any particular advertisement or representation made by Symantec upon which she relied. In an unpublished opinion, the Ninth Circuit agreed, holding that plaintiff “failed to plead her fraud claims with particularity as required by Rule 9(b) of the Federal Rules of Civil Procedure.”Under California law, plaintiffs may be able to avoid pleading individualized reliance on specific misrepresentations when the alleged misrepresentations are a part of an extensive advertisement campaign. Here, however, the Ninth Circuit held that Haskins failed to establish that Symantec was engaged in such a campaign.

Ninth Circuit Affirms Dismissal of Fraud-Based UCL Claims Based on Lack of Reliance

The Ninth Circuit Court of Appeals’ recent decision in Haskins v. Symantec Corp., Case No. 14-16141 (9th Cir. June 20, 2016), supports the requirement that plai

Ninth Circuit Affirms Dismissal of Fraud-Based UCL Claims Based on Lack of Reliance

If your company is involved in selling products or services to consumers in New Jersey over the web or through mobile apps, you’ll want to read this client alert.In what amounts to a feeding frenzy, plaintiffs’ lawyers are working overtime bringing class action suits against e-commerce companies, alleging that their online terms and conditions violate New Jersey’s unusual <a href="http://www.gannlaw.com/OnlineApp/dtSearch-Data/TextFiles/Condominium/App-32.pdf" target="_blank" rel="noopener">Truth-in-Consumer Contract, Warranty and Notice Act</a> (“TCCWNA”). Some of the online retailers to have been sued include Victoria’s Secret, Bed Bath & Beyond and TOYS ‘R’ US, with more suits being filed every day.Unlike most consumer protection laws, the TCCWNA focuses specifically on the contractual terms governing certain transactions with consumers, imposing limitations on such terms even if such contractual terms are governed by the law of a state other than New Jersey—creating a potential gotcha for e-tailers who are based outside of New Jersey and who traditionally have their online terms and conditions reviewed only by lawyers admitted to practice in the state whose laws govern such terms and conditions.Although the TCCWNA was enacted in 1981, it has only recently achieved notoriety, as more and more plaintiffs’ lawyers have embraced the statute due to its broad scope and its statutory penalty of not less than $100 per violation without the need to prove actual harm.

Controversial New Jersey Consumer Protection Law Creates a Potential “Gotcha” for E-Commerce Companies

If your company is involved in selling products or services to consumers in New Jersey over the web or through mobile apps, you’ll want to read this client aler

Controversial New Jersey Consumer Protection Law Creates a Potential “Gotcha” for E-Commerce Companies

The Supreme Court case Spokeo, Inc. v. Robins reaffirmed and clarified the requirements necessary for plaintiffs to establish standing.<a href="#_ftn1" name="_ftnref1">[1]</a>  As evidenced by the recent First Circuit case Hochendoner v. Genzyme Corp., the analysis set forth in Spokeo is essential to determining the viability of products liability claims.<a href="#_ftn2" name="_ftnref2">[2]</a>  There, the two consolidated class action lawsuits involved products liability allegations against a drug manufacturer.  But because plaintiffs did not allege sufficiently specific harm, the First Circuit affirmed dismissal of the case on grounds of Article III standing.<a href="#_ftn3" name="_ftnref3">[3]</a>BackgroundThe plaintiffs and putative class members in Hochendoner all have Fabry disease, a rare genetic disorder that prevents the body from properly breaking down fats.  Fabry disease can lead to gastrointestinal issues, stroke, and heart and kidney failure.  Although there is no cure for Fabry, it can be effectively treated with Fabrazyme, the only FDA-approved enzyme replacement therapy for the disease.  Defendant Genzyme Corporation is the exclusive licensee of the Fabrazyme patent and is the only producer of Fabrazyme.  Various problems with Genzyme’s manufacturing facilities led to a shortage of Fabrazyme beginning in 2009.  Genzyme initiated a rationing plan and was unable to fully restore supplies of Fabrazyme until 2012.The plaintiffs in Hochendoner alleged several causes of action connected to the Fabrazyme shortage, including statutory violations, torts, breaches of warranty, breaches of contract, and losses of consortium.  Plaintiffs challenged the dismissal of two categories of claims on appeal: (1) plaintiffs’ claim that patients experienced an accelerated course of deterioration on the lower dose of Fabrazyme; and (2) plaintiffs’ claim that they experienced harm attributable to tainted Fabrazyme.  Although Genzyme challenged plaintiffs’ standing for the first time on appeal, the First Circuit noted that standing arguments may be raised at any stage of litigation.Standing AnalysisCiting Spokeo, the court recognized the Supreme Court’s recent articulation of Article III standing as having two distinct requirements:  concreteness and particularization.  While concreteness focuses on whether an injury actually exists, the particularization requirement ensures that a plaintiff has been personally affected by the injurious conduct.  Plaintiffs did not link the alleged injuries to any specific plaintiff, thus failing to satisfy the particularization requirement.  The complaints simply listed each plaintiff’s name and place of residence and alleged that each plaintiff had Fabry disease and had a history of taking Fabrazyme.  However, the complaints did not allege any specific information regarding the harm that was inflicted on each individual plaintiff.  With the exception of one named plaintiff, the court concluded that none of the plaintiffs had standing to assert claims based on their theories of injury because they failed “to plausibly allege that he or she suffered an injury in fact as a result of accelerated disease progression or receipt of a contaminated drug.”Future ImplicationsThis case is indicative of the implications that Spokeo will have on all cases, including those involving products liability claims.  The Court in Spokeo emphasized that plaintiffs must allege an injury that is both concrete and particular.  The particularization requirement will likely continue to be especially important in class actions asserting allegations against drug manufacturers.  Hochendoner set an important precedent in requiring plaintiffs to link alleged injuries to specific plaintiffs and to allege much more than generalized harms. <a href="#_ftnref1" name="_ftn1">[1]</a> Spokeo, Inc. v. Robins, No. 13-1339, slip op. (U.S. May 16, 2016).  The claims in Spokeo were related to statutory violations, but courts have found Spokeo to apply in a variety of cases.<a href="#_ftnref2" name="_ftn2">[2]</a> Hochendoner v. Genzyme Corp., Nos. 15–1446, 15–1447, 2016 WL 2962148 (1st Cir. May 23, 2016).<a href="#_ftnref3" name="_ftn3">[3]</a> The district court had dismissed the case not for lack of standing, but for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

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Associate

Brittany Scheinok is an associate in the Litigation Department of the firm’s San Diego office.