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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The California Court of Appeal recently affirmed a ruling that an optional protection plan in a storage rental contract to transfer the risk of property damage or loss from the renter to the rental company did not transform the rental contract into a contract for insurance. A storage unit renter sued A-1 Self Storage, Inc., as well as its operators and insurance broker for violations of the Unfair Competition Law (UCL) and Consumer Legal Remedies Act (CLRA), negligent misrepresentation, and civil conspiracy, alleging that A-1’s storage unit protection plan was an unlicensed and illegal insurance policy. In reaching its decision, the appellate court deferred to the California Department of Insurance’s (DOI) informal opinion that the protection plan was not an insurance contract. Heckart v. A-1 Self Storage, Inc., 243 Cal. App. 4th 525 (2015).Factual Background. Samuel Heckart rented a storage unit from A-1 Self Storage, Inc. The rental contract stated that A-1 was not liable for any loss or damage to the stored property and that the renter must provide proof of an independent insurance policy to A-1. A-1 also provided an option titled a “Protection Plan,” which stated that for an additional payment of $10 per month, the storage company would retain liability for loss of or damage to the renter’s stored property up to $2,500. The Protection Plan stated: “I understand that I need to provide the policy information in writing to the facility Owner within 30 days or I will automatically be enrolled in the . . . Protection Plan until I do provide such information to the Owner.” Heckart was enrolled in the Protection Plan, presumably because he failed to provide proof of insurance within 30 days. Heckart later sued A-1 for engaging in the unfair, unlawful, and deceptive sale of unlicensed insurance in conjunction with the rental of storage units.Statutory Scheme. California’s Insurance Code defines the term insurance and provides for licensing and other requirements in connection with the sale of insurance. Under California precedent, courts look to the “principal object and purpose of the transaction” to determine whether it is a contract of insurance. DOI’s Position. A-1’s insurance underwriter also requested an opinion letter regarding the Protection Plan from the California DOI. The DOI’s response opined that it “did not believe that such contracts between landlords and tenants are insurance contracts for purposes of statutory regulation. The primary purpose of the contract is rental of the premises.” Trial and Appellate Court Holdings. The trial court sustained A-1’s demurrer without leave to amend, finding that the principal object of the transaction between Heckart and A-1 was the rental of a storage unit, not the sale of insurance. The Court of Appeal affirmed, noting that California courts must give deference to the DOI’s interpretation of the Insurance Code. The appellate court noted that “[w]e have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.” 243 Cal. App. 4th at 535 (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)). Viewing the entire transaction between the parties, the court concluded that without the rental agreement, the Protection Plan would not exist and would have no purpose and, therefore, it was not an insurance contract. This decision is consistent with Yamaha Corp. of America v. State Board of Equalization, 19 Cal. 4th 1 (1998), which held that an agency interpretation of a statute is entitled to deference; however, such deference is not absolute. Under Yamaha, in weighing an agency’s interpretation, the courts consider (i) the agency’s comparative interpretive advantage over the courts, and (ii) whether the interpretation is likely to be correct.

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A-1 Self-Storage Unit Protection Plan: California Court of Appeal Defers to Agency Interpretation of the Insurance Code

A-1 Self-Storage Unit Protection Plan: California Court of Appeal Defers to Agency Interpretation of the Insurance Code

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The California Court of Appeal recently affirmed a ruling that an optional protection plan in a storage rental contract to transfer the risk of property damage 

Ever heard of “voluntary” safety standards? Voluntary or not, they’re a big deal. The technical term is “voluntary consensus safety standards” or “non-government consensus standards,” and they may guide the design of your consumer product. In fact, the Consumer Products Safety Commission (CPSC) considers voluntary standards “to be a safety floor from which to design your product; and you should always consider finding ways to build safety into your product and go above and beyond these standards.” Basically, “voluntary” standards often are mandatory and express the bare minimum safety requirements for your consumer product. CPSC’s role in setting those standards is about to increase.Traditionally, voluntary safety standard organizations like the American National Standards Institute (ANSI) and Underwriters Laboratories Inc. (UL) develop voluntary standards for consumer products with limited input from CPSC. Until recently, a CPSC employee could only participate in voluntary standard development groups on a non-voting basis and could not accept leadership positions in the groups. In 2012, the Government Accountability Office urged CPSC to revisit this limitation and assume a more active role in developing voluntary safety standards for product safety. At the recent January 27, 2016 decisional meeting, CPSC commissioners formally enacted new rules that allow CPSC employees to vote and accept leadership positions in voluntary standards committees. The commissioners unanimously approved the rule change.We should take a moment to appreciate the gravity of this rule change. First, CPSC participation in the voluntary standards development process likely will result in “the standards . . . being stronger and more effective,” according to Rachel Weintraub, consumer advocate, legislative director, and general counsel at the Consumer Federation of America. For consumer products manufacturers, stronger standards will require a heightened awareness of the specific standards in place and increased diligence in complying with those standards. Second, the rule change will likely lead to increased CPSC enforcement of voluntary standards, especially those incorporated into CPSC’s own safety regulations. As CPSC becomes more directly involved in writing voluntary standards, there will be more political pressure for CPSC to enforce those standards, and we expect they will play a more significant role in CPSC’s enforcement efforts. So pay attention!

Rules Change, and So Does CPSC’s Involvement in the Development of Voluntary Standards

Ever heard of “voluntary” safety standards? Voluntary or not, they’re a big deal. The technical term is “voluntary consensus safety standards” or “non-governmen

Rules Change, and So Does CPSC’s Involvement in the Development of Voluntary Standards

The Ninth Circuit will not review district court stays, the appeals court recently held, because they are not “final orders” subject to immediate appeal. On January 26, 2015, the Ninth Circuit granted General Mills’ motion to dismiss plaintiff Troy Backus’ appeal of a district court order staying his putative class action against General Mills for its use of partially hydrogenated oils (PHOs) (also known as “trans fats”) in its baking mixes. Backus v. General Mills, Inc., Case No. 15-16658District Court Stay. Judge Henderson stayed the case based on the Food and Drug Administration’s (FDA’s) primary jurisdiction over the safety of trans fats. The court held that whether General Mills’ use of trans fats in food poses a significant safety risk “is both an important question of first impression, and a complicated issue that has been committed to the FDA.” No. 15-cv-01964-THE, 2015 WL 4932687, at *17 (N.D. Cal. Aug. 18, 2015).Plaintiff’s Appeal. The plaintiff appealed, arguing that the stay was effectively final because it was unclear when FDA would complete its review. In a one page order without discussion, the Ninth Circuit disagreed. The stay was not a “final or collateral order” subject to immediate appeal, the panel held, so the court lacked jurisdiction.Takeaway. Backus demonstrates that the Ninth Circuit will not provide immediate relief for plaintiffs facing stays pending FDA’s review of food or cosmetic regulations. Rather, plaintiffs must argue to district courts that stays should be lifted based on the slow pace of FDA’s review. As we describe in a <a href="http://classdismissed.mofo.com/food-misbranding/reviving-a-forgotten-fad/">related post on “evaporated cane juice” (ECJ) stays</a>, while this argument has gained traction with a few courts in this district — including Judge Henderson in a subsequent case, Figy v. Lifeway Foods, Inc., No. 3:13-cv-4828-TEH (N.D. Cal. Jan. 4, 2016), Dkt. No. 57—most courts have rejected it. Food and cosmetic misbranding cases stayed pursuant to the primary jurisdiction doctrine will likely have to wait for FDA’s review to run its course.

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Ninth Circuit: No Relief from Stay in General Mills’ Trans Fats Case Pending FDA Action

Ninth Circuit:  No Relief from Stay in General Mills’ Trans Fats Case  Pending FDA Action

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The Ninth Circuit will not review district court stays, the appeals court recently held, because they are not “final orders” subject to immediate appeal. On Jan

Businesses face a daunting task when attempting to comply with the U.S. Consumer Product Safety Commission’s (CPSC) reporting requirements.  In an effort to simplify and streamline the process for consumer products providers, CPSC recently launched a “Regulatory Robot” designed “to guide you through . . . identify[ing] important product safety requirements that you should review before manufacturing or importing your consumer product.”The Regulatory Robot asks a series of questions regarding a user’s product.  (<a href="http://www.cpsc.gov/en/Business--Manufacturing/Regulatory-Robot/Safer-Products-Start-Here/" target="_blank">http://www.cpsc.gov/en/Business–Manufacturing/Regulatory-Robot/Safer-Products-Start-Here/</a>).  Throughout the process, the Regulatory Robot provides helpful links that explain, for example, the definition of “consumer product,” which products qualify as “children’s products,” and those categories of items that fall under “household products.”  After the user answers questions via the click‑through menus, the Regulatory Robot generates a report that identifies consumer product safety requirements applicable to the product in question.  This includes citations to applicable federal regulations, as well as further information on and links to CPSC’s own internal guidelines.  The report also helps to identify when third-party product testing is necessary and identifies CPSC-approved laboratories to conduct the testing.  Finally, the report provides guidance on mandatory and voluntary reporting obligations, as well as basic information about product recalls.  Because the purpose of the Regulatory Robot is to aid and guide users, CPSC does not request any identifying information, nor does it retain the final report generated to the user.The Regulatory Robot marks a significant step forward in CPSC efforts to assist with compliance and reporting burdens.  Information regarding CPSC rules and regulations has been publicly available for years in piecemeal fashion, but the Regulatory Robot is the first instance in which the information is consolidated, available in one location, and interactive.New users, small businesses, and manufacturers of children’s products may find the tool especially helpful.  Traditionally, businesses have been able to contact the CPSC’s Small Business Ombudsman or the Office of Compliance and Field Operations to seek guidance on complying with the complex regulatory framework and varied safety requirements.  These individual inquiries strained CPSC resources.  The Regulatory Robot aims to relieve some of that burden by providing direct guidance to users, even though the Small Business Ombudsman and Office of Compliance and Field Operations will continue to be available for additional questions.The Regulatory Robot’s generalized reports and guidelines may not resolve all user inquiries, but in most cases, it provides a starting point from which to understand regulatory requirements and reporting obligations.  Armed with this knowledge, businesses can identify when to seek further legal advice to develop a comprehensive approach to consumer product safety compliance.

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

Fitbit

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

CPSC Launches “Regulatory Robot”

Businesses face a daunting task when attempting to comply with the U.S. Consumer Product Safety Commission’s (CPSC) reporting requirements.  In an effort to sim

CPSC Launches “Regulatory Robot”

California’s Green Chemistry Initiative has taken another step forward with the issuance of guidance on the heart of the law, the analysis of safer substitutes for chemicals in consumer products.  On September 24, 2015, the California Department of Toxic Substances Control (DTSC) released its Draft Stage 1 Alternatives Analysis Guide (Guide) under its Safer Consumer Products (SCP) Program.  This is the first of two stages of the alternative analysis process released in draft for public comment.  The second stage is scheduled to be released during the first quarter of 2016.  The DTSC also added three new chemicals to its candidate list.The Guide is not issued as a regulation and does not have the force of law.  Rather, it is designed to provide more details from the DTSC about the general process for conducting an alternative analysis for a variety of responsible entities and a diverse set of product types.  The Guide also does not provide a single, specific approach for that analysis.  Instead, the responsible entity must decide which approaches, assumptions, tools, methodologies, data, and decision frameworks will best suit its particular situation.In broad overview, the framework for the alternatives analysis is set forth in the statute and previously adopted regulations:FIRST STAGE ALTERNATIVES ANALYSIS:<ul><li>Step 1: Identify product requirements and functions of Chemical of Concern.</li><li>Step 2: Identify alternatives.</li><li>Step 3: Identify factors relevant for comparing alternatives.</li><li>Step 4: Perform initial evaluation and screening of alternative replacement chemicals.</li><li>Step 5: Consider additional information.</li><li>Step 6: Complete preliminary alternatives analysis report.</li></ul>The Guide identifies “Other Compliance Options” in cases where a responsible entity has already completed an alternatives analysis or a similar comparative analysis.  The options include (1) an abridged analysis, (2) an alternate process analysis, or (3) a previously completed analysis.  Upon demonstration to the DTSC that the “information and analysis for a different approach are adequate for evaluating the Priority Product and the alternatives” and the information and analysis are sufficiently equivalent to the alternatives analysis process as set forth in the SCP regulations, the responsible entity may commence work under one of these options.Some of the key subjects discussed in the Guide include:Product Requirements and Alternatives<ul><li>Product function and performance – A responsible entity must describe a product’s functions and its specific applications to evaluate whether potential alternatives achieve the same or similar functions.” The function may include product characteristics and qualities.  The functions of the product and the product’s Chemical of Concern must be considered in the alternatives analysis.</li><li>Legal requirements – The specific requirements, performance standards and labeling requirements that a chemical, product or product packaging is required to meet under California or federal law must be evaluated.</li><li>Identifying Alternatives – <ul><li>Removing a Chemical of Concern from a Priority Product.</li><li>Reformulating or redesigning a Priority Product to eliminate or reduce the concentration of a Chemical of Concern in a Priority Product.</li><li>Redesigning a Priority Product to reduce or restrict potential exposures to a Chemical of Concern in a Priority Product.</li><li>Making any other change to a Priority Product that reduces the potential adverse impacts or potential exposures associated with the Chemical of Concern in a Priority Product.</li></ul></li></ul>Relevant Factors<ul><li>A potential factor becomes relevant if both of these requirements are met: <ul><li>The factor makes a material contribution to adverse public health impacts, adverse environmental impacts, adverse waste and end-of-life impacts, or material and resource consumption. This relates to a factor that is both meaningful and consequential to an observed outcome or impact.</li><li>There is a material difference in the factor’s contribution to the impacts between the Priority Product and one or more of the alternatives under consideration. This relates to a factor’s contribution to an observed impact that is both meaningful and consequential to the comparison of alternatives.</li></ul></li><li>Identifying relevant factors is an iterative process, part of the scoping process during both stages of the alternatives analysis process.</li><li>The responsible entity uses relevant factors throughout the alternatives analysis process to characterize, evaluate and compare impacts of the Priority Product and its alternatives.</li></ul>Impact Assessments<ul><li>Impact assessments can include the approaches, tools and information sources that a responsible entity may use to conduct its analysis.</li></ul>Screening Alternatives<ul><li>Approaches a responsible entity may use to narrow the list of alternatives will be evaluated in the second stage of the alternatives analysis.</li><li>Alternatives that would be an improvement over the Priority Product should be retained.</li></ul>DTSC is accepting comments on the Guide until October 23, 2015, and it will hold two webinars on October 7 and 21, 2015.SCP Regulations – Proposed CANDIDATE CHEMICAL LIST AMENDMENTAlso on October 2, 2015, the DTSC proposed to add three additional chemicals:  (1) 4-(1,1,3,3-tetramethylbutyl)phenol, ethoxylated, (2) 4-nonylphenol, branched and linear, and 3) 4-nonylphenol, branched and linear, ethoxylated to its Candidate Chemical List.  The DTSC will hold a public hearing on November 16, 2015, and it will accept comments until then.

In re Lumber Liquidators Chinese Laminate Litigation

Maxus Energy Corporation

In re Hydroxycut Personal Injury and Class Action Litigation

Los Angeles World Airport (LAWA)

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

Fitbit Force Recall 

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

Seagate Technology LLC

Clif Bar, Inc.

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

William Tarantino

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

William F. Tarantino

Consumer Products “Either/Or”: California Issues Guidance on Alternatives Analysis for Safer Products

California’s Green Chemistry Initiative has taken another step forward with the issuance of guidance on the heart of the law, the analysis of safer substitutes 

Consumer Products “Either/Or”:  California Issues Guidance on Alternatives Analysis for Safer Products

The United States Department of Justice (DOJ) recently issued a memorandum to various enforcement agencies. The memorandum, available <a href="http://www.justice.gov/dag/file/769036/download">here</a>, focuses on holding individuals accountable for corporate fraud and misconduct.<a name="_ftnref1" href="#_ftn1">[1]</a> The DOJ has already shown it means business. Just days after the memorandum was published, a former corporate executive was sentenced to an unprecedented 28 years in prison for his role in knowingly shipping salmonella-tainted food products in 2008.<a name="_ftnref2" href="#_ftn2">[2]</a>Coupled with the Consumer Product Safety Commission’s (CPSC) increased enforcement efforts—evidenced by growing civil penalties<a name="_ftnref3" href="#_ftn3">[3]</a> and a wave of lawsuits directed at corporations<a name="_ftnref4" href="#_ftn4">[4]</a>—this new DOJ edict gives CPSC another leg to stand on when dealing with manufacturers, distributors, and retailers alike. As the DOJ and CPSC take steps to delve behind the corporate façade and hold individuals both criminally and civilly liable for their transgressions, corporate actors should take note of the possibility of harsh monetary penalties or, worse, time behind bars.The DOJ guidance, which applies to civil and criminal proceedings, encourages corporations to essentially self-report individual misconduct by offering corporate “cooperation credit.” This generally means mitigated punishment for corporations that cooperate in investigations or judicial proceedings. Such “cooperation credit” is conditioned on full disclosure of individual actors’ wrongdoings. Specifically, the DOJ memorandum states that for a corporation to be eligible to receive any cooperation credit, the company “must completely disclose . . . all relevant facts about individual misconduct.” Only after meeting this requirement will the corporation be eligible for cooperation credit.<a name="_ftnref5" href="#_ftn5">[5]</a>CPSC already has self-reporting requirements under the Consumer Product Safety Act (CPSA) that require manufacturers, distributors, and retailers to “immediately inform” CPSC of any potential substantial product safety hazard or unreasonable risks of serious injury associated with their products. 15 U.S.C. § 2064. In addition to these reporting requirements placed on corporations, the DOJ guidance may motivate CPSC to more closely monitor the actions of individuals behind the shroud of the corporate cloak.The DOJ guidance also encourages attorneys handling separate civil and criminal aspects of corporate investigations to routinely communicate with one another and focus on individual actors “from the inception of the investigation.” The guidance further redirects civil attorneys to police corporate fraud rather than focus on damages and to do so by considering individual actors, not just the company, when determining whether or not to file suit. Factors to consider include, “whether the person’s misconduct was serious, whether it is actionable, whether the admissible evidence will probably be sufficient to obtain and sustain a judgment, and whether pursuing the action reflects an important federal interest.” The guidance admits that these broader considerations may not, “in the short term,” provide a monetary return on enforcement investments. However, the DOJ believes this aggressive stance will ultimately “minimize corporate fraud, and, over the course of time, minimize losses to the public fisc through fraud.”For those within CPSC’s crosshairs during an investigation or judicial proceeding, this may mean (1) more pointed inquiries concerning individual actions related to corporate malfeasance; (2) increased civil penalties for individual wrongdoings; (3) personal liability—civil and criminal—for individuals linked to corporate cover-ups or other offenses; and (4) more concerted suits brought by DOJ and CPSC. Indeed, the CPSA already provides for civil and criminal penalties against individuals. Even before these DOJ guidelines were published, CPSC had brought actions to hold executive level employees individually responsible for their actions under the corporate officer doctrine.<a name="_ftnref6" href="#_ftn6">[6]</a>Finally, the DOJ guidance states that, generally, corporate resolution of a dispute will not provide protection, civilly or criminally, for individual actors. Furthermore, corporate cases should not be resolved absent a “clear plan to resolve related individual cases” and delays related to corporate resolutions should not holdup the government’s ability to pursue claims against individual actors. In fact, the DOJ guidance instructs that if no individuals are prosecuted at the conclusion of an investigation, “the reasons for [not bringing individual claims] must be memorialized and approved by the United States Attorney or Assistant Attorney General whose office handled the investigation, or their designees.”This rigid requirement illustrates the DOJ’s expectation that a typical corporate investigation would yield enough evidence to bring claims against individual corporate actors. Although at this stage it is unclear how these directives will play out, corporate actors should be aware of the potential implications. Corporate actors looking to avoid individual liability should take care to become knowledgeable about legal requirements for their positions and not expect the corporate umbrella to shield them from liability incurred by their own actions.    <a name="_ftn1" href="#_ftnref1">[1]</a> Although the measures discussed in the DOJ memorandum are not operative law, they are offered to “guide attorneys for the government in accordance with their statutory responsibilities and federal law.”<a name="_ftn2" href="#_ftnref2">[2]</a> See McKay, R. (Sept. 21, 2015) “Former peanut company CEO sentenced to 28 years for salmonella outbreak,” Reuters, available at https://www.reuters.com/article/2015/09/22/us-usa-georgia-salmonella-idUSKCN0RL24H20150922.<a name="_ftn3" href="#_ftnref3">[3]</a> See “CPSC Penalties to Increase Beyond ‘Cost of Doing Business,’” Morrison & Foerster Client Alert, March 3, 2015; and “CPSC Imposed Record-High Penalties in 2014,” Morrison & Foerster Client Alert, Nov. 11, 2014.<a name="_ftn4" href="#_ftnref4">[4]</a> See “Recall, Enforce, Repeat! CPSC and DOJ Team Up for Another Enforcement Action,” Morrison & Foerster Client Alert, June 22, 2015.<a name="_ftn5" href="#_ftnref5">[5]</a> The extent of the cooperation credit granted will still depend on traditional factors such as timeliness of cooperation, proactive nature of the corporation’s actions, and the diligence, thoroughness, and speed of the company’s internal investigation.<a name="_ftn6" href="#_ftnref6">[6]</a> See “CPSC Seeks to Hold Former CEO Responsible for Buckyballs® Recall,” Morrison & Foerster Client Alert, May 9, 2013.

Fertility Center Litigation

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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Pay Attention to the Man Behind the Curtain: DOJ Memorandum Adds Further Weight to CPSC Enforcement Efforts Against Corporate Officers

The United States Department of Justice (DOJ) recently issued a memorandum to various enforcement agencies. The memorandum, available here, focuses on holding i

Pay Attention to the Man Behind the Curtain: DOJ Memorandum Adds Further Weight to CPSC Enforcement Efforts Against Corporate Officers

Last week, the Consumer Product Safety Commission (CPSC) approved a pilot program to test an electronic filing system that will require importers to submit data electronically for imported consumer products.  The filing system will aid CPSC and other regulators in their surveillance of imported goods and allow them to identify noncompliant goods before distribution within the United States.  CPSC commissioners approved the pilot program in a 4-1 vote.Under the current system, imported goods are shipped with paper certificates of compliance inside their shipping containers.  The paper certificates describe the product, identify its manufacturer, and list applicable rules and bans.  According to CPSC chair Elliot Kaye, the paper certificates can cause confusion, and there are concerns that the certificates are not always provided at the time the goods enter the United States.The electronic filing system will require importers to provide five data points: (1) identification of the finished product; (2) each safety rule under which the product has been certified; (3) the manufacturer and place of manufacture; (4) the parties who tested the product to certify its compliance with applicable regulations; and (5) an indication that a required certificate currently exists for the product.  The electronically filed information will be available to CPSC for validation and risk assessment. Ultimately, the electronic data will guide CPSC’s determination of a product’s admissibility into the country.The electronic filing program is part of CPSC’s larger “single window” approach for imported products. The “single window” framework aims to give companies a single point for submitting import-related information to the multiple agencies that have jurisdiction over goods entering the United States.Importers interested in participating in the pilot program should contact CPSC for more information.  The test program will begin no earlier than July 2016.  CPSC will accept electronic requests to participate in the pilot program before the program starts, and will continue to take requests throughout the duration of the pilot.  Participating in the pilot program may come with significant advantages.  For example, pilot participants may experience a reduction in product safety tests on imported goods.  In the event a products examination is required, shipments will be conditionally released to the importer’s premises for examination.  In the event of testing, participants will receive “front of the line testing” from CPSC laboratories.  And in the event that products must be destroyed, participants may be allowed to destroy products themselves in lieu of redelivering the product for destruction.  Finally, the opportunity to cooperate and collaborate with CPSC in a limited context before full-scale implementation of the pilot program could prove advantageous in strengthening a company’s relationship with CPSC.