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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Morrison Foerster’s Class Dismissed blog provides insights and reports on the latest news, developments, and trends that affect consumer-facing companies. Subscribe to receive the latest updates by attorneys from our nationally recognized Consumer Class Action and Product Liability practices.

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The rapid spread of coronavirus has spawned prolific marketing claims that any number of products can treat or prevent coronavirus. It comes as no surprise then that the Food and Drug Administration (FDA) and Federal Trade Commission (FTC) recently issued their first round of joint warning letters to several companies claiming their products—teas, essential oils, tinctures, and colloidal silver—could prevent or treat COVID-19.Warning Letters to Seven Companies The warning letters were sent to Vital Silver, Quinessence Aromatherapy, Xephyr, GuruNanda, Vivify Holistic Clinic, Herbal Amy, and The Jim Bakker Show on March 6, 2020. The joint letters and separate, corresponding press releases are available <a href="https://www.fda.gov/news-events/press-announcements/coronavirus-update-fda-and-ftc-warn-seven-companies-selling-fraudulent-products-claim-treat-or">here</a> (FDA) and <a href="https://www.ftc.gov/news-events/press-releases/2020/03/ftc-fda-send-warning-letters-seven-companies-about-unsupported">here</a> (FTC).The companies claimed their products could be curative or healing, claims that were both directly and indirectly targeting coronavirus. For example, Quinessence Aromatherapy marketed “eucalyptus radiate,” an essential oil, as having “a powerful antibacterial, antifungal and anti-infectious action, which makes it extremely useful for all types of infection.” Quinessence Aromatherapy also alluded to COVID-19 in other marketing materials, including claims that it had the “most powerful anti-virus essential oils to provide defence against coronavirus.”The agencies also addressed products that more directly claimed to treat coronavirus, too. Herbal Amy, which sells teas and tinctures, was targeted by the agencies for the following claims about its product:“Corona virus treatment . . . All the herbs are specific in one way or another for this virus. A number of the herbs are strongly antiviral for corona viruses . . . . The formulations are preventative as well as specific for acute infections . . . .”In the jointly issued warning letters, the agencies ordered each company to cease selling products claiming to prevent or treat COVID-19, noting that the products lack competent and reliable scientific evidence, much less regulatory approval, supporting the companies’ claims. FDA stressed that these letters were part of its broader campaign requiring urgent measures to protect consumers from products that claim to mitigate, prevent, treat, diagnose, or cure COVID-19 in people.FTC stated that, according to FDA, there are no approved vaccines, drugs, or investigational products currently available to treat or prevent COVID-19.Numerous state attorneys general are also taking action against unauthorized and unsupported product claims. For example, Missouri Attorney General Eric Schmitt sued The Jim Bakker Show for selling “Silver Solution,” a dietary supplement, as a “coronavirus cure,” and New York Attorney General Letitia <a href="https://ag.ny.gov/sites/default/files/bakker_cease_and_desist_letter_notification.pdf">James issued</a> a “cease and desist” order to Bakker for the same. Washington Attorney General Bob <a href="https://www.atg.wa.gov/news/news-releases/ag-ferguson-statement-price-gouging-public-health-emergency">Ferguson announced</a> that his office “is investigating price gouging in the wake of the COVID-19 public health emergency.”Takeaways for Consumer-Facing Product Manufacturers <ul><li>Avoid sales of unapproved products. Avoid selling products that claim to prevent or treat COVID-19 without approval, clearance, and/or authorization under the FD&C Act. The warning letters covered diverse products including teas, essential oils, tinctures, and colloidal silver. In its corresponding press release, FDA also warned consumers that fraudulent COVID-19 products could include dietary supplements and other foods, as well as products purporting to be drugs, medical devices, or vaccines.</li><li>Avoid making claims without evidence. Avoid claiming that products can prevent or treat COVID-19 without competent and reliable scientific evidence under the FTC Act. FTC may consider a “misbranded” product unlawful. While there are investigational COVID-19 vaccines and treatments under development, these investigational products are in the early stages of development and have not completed testing for safety or effectiveness.</li><li>Be proactive. Review marketing statements contained on websites, social media, and other sales channels. An FDA cross-agency task force was established to closely monitor for fraudulent products related to COVID-19, and it has already worked with major retailers and online marketplaces to remove more than three dozen product listings.</li><li>Assess potential exposure. With respect to FDA, failure to correct the FD&C Act violations may result in an injunction and seizure. On the other hand, failure to correct the FTC violations may result in an injunction and order to pay back money to consumers. Further, agency warning letters can often spawn consumer lawsuits, adding to companies’ potential legal exposure for unsupported claims.</li><li>Follow agency guidance. FDA and FTC are motivated to halt production of products with unapproved or unsupported claims because they can cause consumers to delay or stop appropriate medical treatment, leading to serious and life-threatening harm. Companies should continue to closely track agency-issued guidance.</li></ul>Conclusion In the coming days and weeks, we can expect more of these types of warning letters from FDA and FTC relating to COVID-19, as well as from state attorneys general. We will continue to provide updates as the federal agencies and state offices issue more guidance in the face of this rapidly evolving health crisis.

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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FDA and FTC Send Warning Letters to Companies Marketing Products to Treat Coronavirus; State Attorneys General Follow Suit

Using Waivers to Curb COVID-19 Legal Exposure

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The rapid spread of coronavirus has spawned prolific marketing claims that any number of products can treat or prevent coronavirus. It comes as no surprise then

FDA and FTC Send Warning Letters to Companies Marketing Products to Treat Coronavirus; State Attorneys General Follow Suit

Coronavirus (COVID-19)

Consumer Products

Earlier this month, a California federal judge certified six classes asserting state consumer protection statute claims in a multidistrict litigation alleging that The Coca-Cola Co. misled consumers about artificial flavors and added preservatives in its Coke products. See In re: Coca‑Cola Products Marketing and Sales Practices Litigation (No. II), 4:14-md-02555, N.D. Cal. Plaintiffs did not secure a complete victory, however, because the court declined to certify the classes’ common law claims.Case BackgroundIn this case, plaintiffs claim that a Coke marketing campaign misled consumers about the healthiness and naturalness of Coke’s products. The plaintiffs allege that Coke’s statements that the products had “no artificial flavors” and “no preservatives added” are misleading because the products contained phosphoric acid at the time these statements were made. And while Coke no longer includes those labeling claims in its marketing campaigns, the products’ ingredient list still does not include phosphoric acid as a preservative.Following the consolidation of various state lawsuits, plaintiffs sought class certification in 2017, seeking to certify individual classes of buyers from California, Florida, Illinois, Massachusetts, New Jersey, and New York.Court Grants in Part and Denies in Part Plaintiffs’ Motion for Class CertificationIn its opposition to plaintiffs’ motion for class certification, Coke made the argument that plaintiffs lack standing because it’s unclear if they will ever buy the Coke products again and, relatedly, that they cannot be misled going forward because they know now that phosphoric acid is in Coke products. Plaintiffs countered that all named plaintiffs would consider buying Coke if it were accurately labeled.United States District Court Judge Jeffrey S. White agreed with plaintiffs, finding that each class had standing because at least one named plaintiff from each of the classes said they would purchase “properly” labeled Coke. Accordingly, each class had standing to seek an injunction to force Coke to change its labeling.The court also concluded that, because the state consumer protection statutes relevant to each class premise liability on the reasonable consumer standard, the classes for each state could proceed without requiring individual inquiries into whether plaintiffs relied on Coke’s labels when purchasing the sodas.Conversely, the court denied class certification of the common law claims. It found that plaintiffs cannot show that they meet the requirements for certification of those claims because plaintiffs seek damages that are not “incidental” to the injunctive relief they also seek.TakeawayThis decision on class certification reinforces that plaintiffs do not have standing for injunctive relief claims unless they assert that they would purchase the products at issue in the future. Plaintiffs often forget to do so and even sometimes make assertions to the contrary thinking that doing so supports other arguments. When they do, defendants should use those very statements to preclude class certification.

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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Is the Coke Half Full or Half Empty?

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Earlier this month, a California federal judge certified six classes asserting state consumer protection statute claims in a multidistrict litigation alleging t

Is the Coke Half Full or Half Empty?

False Advertising

Food Misbranding

On November 7, 2019, the California Air Resources Board (CARB) held a second public workshop to review its draft proposed amendments (Draft Proposal) to its Consumer Products regulations. Since its first public workshop in April, where it identified 49 priority categories, CARB has convened two public work groups related to these regulatory amendments: a Regulatory Strategies Work Group, which has met 14 times and has eliminated 32 categories from further evaluation, and a Regulatory Definitions Work Group that has met twice to update existing regulatory definitions and improve program implementation.Draft Proposal Summary.The chart below sets forth the categories in the Draft Proposal, their existing volatile organic compound (VOC) standards, and the draft proposed VOC standards and VOC reductions, along with their corresponding effective dates of January 1, 2023, and January 1, 2027.<table><tbody><tr><td rowspan="2" width="135" style="width: undefined%; height: auto;">Category</td><td rowspan="2" width="101" style="width: undefined%; height: auto;">Existing VOC Standard</td><td colspan="2" width="201" style="width: undefined%; height: auto;">Effective Date: Jan. 1, 2023</td><td colspan="2" width="202" style="width: undefined%; height: auto;">Effective Date: Jan. 1, 2027</td></tr><tr><td width="97" style="width: undefined%; height: auto;">Draft Proposed VOC Standard</td><td width="104" style="width: undefined%; height: auto;">VOC Reductions (2023 tpd)</td><td width="98" style="width: undefined%; height: auto;">Draft Proposed VOC Standard</td><td width="104" style="width: undefined%; height: auto;">VOC Reductions (2031 tpd)</td></tr><tr><td width="135" style="width: undefined%; height: auto;">Manual Aerosol Air Freshener</td><td width="101" style="width: undefined%; height: auto;">20% or 30%</td><td width="97" style="width: undefined%; height: auto;">10%</td><td width="104" style="width: undefined%; height: auto;">1.0</td><td width="98" style="width: undefined%; height: auto;">5%</td><td width="104" style="width: undefined%; height: auto;">1.8</td></tr><tr><td width="135" style="width: undefined%; height: auto;">Hair Finishing Spray</td><td width="101" style="width: undefined%; height: auto;">55%</td><td width="97" style="width: undefined%; height: auto;">50%</td><td width="104" style="width: undefined%; height: auto;">1.1</td><td width="98" style="width: undefined%; height: auto;">45%</td><td width="104" style="width: undefined%; height: auto;">2.7</td></tr><tr><td width="135" style="width: undefined%; height: auto;">No Rinse Shampoo</td><td width="101" style="width: undefined%; height: auto;">NA</td><td width="97" style="width: undefined%; height: auto;">50%</td><td width="104" style="width: undefined%; height: auto;">0.7</td><td width="98" style="width: undefined%; height: auto;">45%</td><td width="104" style="width: undefined%; height: auto;">0.9</td></tr><tr><td width="135" style="width: undefined%; height: auto;">Personal Fragrance Products (&lt; 20% Fragrance)</td><td width="101" style="width: undefined%; height: auto;">75%</td><td width="97" style="width: undefined%; height: auto;">65%</td><td width="104" style="width: undefined%; height: auto;">1.7</td><td width="98" style="width: undefined%; height: auto;">50%</td><td width="104" style="width: undefined%; height: auto;">5.8</td></tr><tr><td width="135" style="width: undefined%; height: auto;">Crawling Bug Insecticide (Aerosol)</td><td width="101" style="width: undefined%; height: auto;">15%</td><td width="97" style="width: undefined%; height: auto;">10%</td><td width="104" style="width: undefined%; height: auto;">0.4</td><td width="98" style="width: undefined%; height: auto;">6%</td><td width="104" style="width: undefined%; height: auto;">0.9</td></tr><tr><td width="135" style="width: undefined%; height: auto;">Charcoal Lighter Material</td><td width="101" style="width: undefined%; height: auto;">0.020 lbs./start</td><td width="97" style="width: undefined%; height: auto;">0.014 lbs/start1</td><td width="104" style="width: undefined%; height: auto;">—</td><td width="98" style="width: undefined%; height: auto;">0.014 lbs./start</td><td width="104" style="width: undefined%; height: auto;">0.4</td></tr><tr><td width="135" style="width: undefined%; height: auto;">Sunset 2% Fragrance Exemption</td><td width="101" style="width: undefined%; height: auto;">2% of product mass exempted</td><td width="97" style="width: undefined%; height: auto;">—</td><td width="104" style="width: undefined%; height: auto;">—</td><td width="98" style="width: undefined%; height: auto;">0% exempted</td><td width="104" style="width: undefined%; height: auto;">0.3</td></tr><tr><td colspan="2" width="236" style="width: undefined%; height: auto;"></td><td width="97" style="width: undefined%; height: auto;"></td><td width="104" style="width: undefined%; height: auto;">5.0</td><td width="98" style="width: undefined%; height: auto;"></td><td width="104" style="width: undefined%; height: auto;">12.8</td></tr></tbody></table>According to CARB staff, the categories chosen included products most easily reformulated. CARB excluded categories due to possible challenges, such as reformulation issues, FDA issues, time constraints in completing review, or other issues.Other Categories.During the upcoming months of rulemaking, if any of the currently proposed categories become an issue, CARB has identified the following candidates available for consideration:<ul><li>Floor Wax Stripper</li><li>Aerosol Cooking Spray</li><li>Laundry Detergent/Liquid Fabric Softener</li><li>Anti-microbial Dry Hand Wash (Hand Sanitizer)</li><li>Aerosol Sunscreen</li><li>Mouthwash/Rinse</li><li>Automatic Air Fresheners</li><li>Antiperspirants and Deodorants</li><li>Glass Cleaner (Nonaerosol)</li><li>Other categories are possible</li></ul>Other Ongoing Work.CARB is also reviewing the following:<ul><li>Toxic Compounds<ul><li>Evaluate potential for proposed measures to inadvertently increase Toxic Air Contaminant emissions.</li><li>Consider prohibition of methylene chloride (MeCl) in paint strippers.</li><li>Continue collaboration with the California Department of Toxic Substances Control Safer Consumer Products Program.</li></ul></li><li>Greenhouse Gases<ul><li>Measures to increase near-term use of HFC-152a.</li><li>Strategies to accelerate development of zero-emission alternatives, including near-term and long-term.</li></ul></li><li>Potential Reactivity-Based Approaches<ul><li>Considering reactivity standards for mass-based categories.</li><li>Taking into account ozone-forming potential of products.</li><li>Targeting the most reactive VOCs can provide flexibility for regulatory compliance.</li><li>Future reactivity limits dependent on industry development of test methods.</li></ul></li><li>Other Potential Regulatory Updates<ul><li>Reflect existing high-GWP HFC prohibitions in Consumer Product Regulation, Table 94509(n)(1).</li><li>Amend Table of Maximum Incremental Reactivity Values.</li><li>Refine IPE and ACP eligibility requirements.</li><li>Update Method 310.</li></ul></li></ul>Next steps.CARB’s next steps include:<table><tbody><tr><td width="162" style="width: undefined%; height: auto;">Late 2019</td><td width="534" style="width: undefined%; height: auto;">Publish updated final survey data summaries, update consumer product emission inventory</td></tr><tr><td width="162" style="width: undefined%; height: auto;">Early 2020</td><td width="534" style="width: undefined%; height: auto;">Additional work group meetings:<ul style="font-size: 0.875rem;"><li>Specific to proposed regulatory categories</li><li>Regulatory definitions</li><li>Fragrance exemption</li><li>Other topics as needed</li></ul></td></tr><tr><td width="162" style="width: undefined%; height: auto;">Spring 2020</td><td width="534" style="width: undefined%; height: auto;">Third public workshop: Refine draft regulatory proposal, draft regulatory language. Additional workshop if needed</td></tr><tr><td width="162" style="width: undefined%; height: auto;">Ongoing</td><td width="534" style="width: undefined%; height: auto;">Meet individually with interested stakeholders</td></tr><tr><td width="162" style="width: undefined%; height: auto;">Late 2020</td><td width="534" style="width: undefined%; height: auto;">Board consideration of proposed regulatory amendments</td></tr></tbody></table>CARB is seeking comments and feedback on its Draft Proposal by Wednesday, November 27, 2019. Send comments and feedback to csmrprod@arb.ca.gov.A copy of the Draft Proposal can be obtained here: The Public Workshop for Proposed Amendments to the Consumer Products Regulations.Lois Miyashiro, an environmental analyst in the firm’s San Francisco office, assisted in the preparation of this client alert.

CARB Issues New Draft VOC Limits for Consumer Products

On November 7, 2019, the California Air Resources Board (CARB) held a second public workshop to review its draft proposed amendments (Draft Proposal) to its Con

CARB Issues New Draft VOC Limits for Consumer Products

Environmental Law

The U.S. Consumer Product Safety Commission (CPSC) recently elected Commissioner Robert Adler to serve as vice-chair of the CPSC. Commissioner Adler, a Democrat who has served on the CPSC since 2009, is a surprising choice for the No. 2 spot, elected to the position by a Republican-majority Commission. The choice is even more surprising given that he will assume the acting chair position when current Acting Chair <a href="/consumer-products/nomination-of-a-new-chairman-at-the-cpsc/">Ann Marie Buerkle</a> steps down at the end of the month. Buerkle had been poised to lead the CPSC as chair, but <a href="/consumer-products/change-is-in-the-air-buerkle-withdraws-her-nomination-to-chair-the-cpsc/">withdrew</a> her <a href="/cpsc/buerkle-poised-to-take-her-seat/">nomination</a> in June. In choosing a vice-chair to succeed her as acting chair, Buerkle crossed the political aisle and gave Adler the majority vote. As a result, the CPSC will be led, at least for the time being, by a Democrat, though the White House is likely to nominate another Republican to fill Buerkle’s seat and return the Commission to a 3-2 Republican majority.

Outnumbered But in Charge: Democrat Commissioner Robert Adler Elected to Vice-Chair of CPSC

The U.S. Consumer Product Safety Commission (CPSC) recently elected Commissioner Robert Adler to serve as vice-chair of the CPSC. Commissioner Adler, a Democrat

Outnumbered But in Charge: Democrat Commissioner Robert Adler Elected to Vice-Chair of CPSC

This week, Acting Chairman Ann Marie Buerkle <a href="https://cpsc.gov/about-cpsc/chairman/ann-marie-buerkle/statements/statement-acting-chairman-ann-marie-buerkle">withdrew</a> her <a href="https://classdismissed.mofo.com/cpsc/buerkle-poised-to-take-her-seat/">nomination</a> to serve as Chairman of the U.S. Consumer Product Safety Commission (CPSC). She will wrap up her tenure as Acting Chairman, a <a href="https://classdismissed.mofo.com/consumer-products/same-enforcement-trend-new-cpsc-leadership/">position she has held</a> since February 2017, on September 30, and will finish her CPSC term on October 27. As we <a href="https://classdismissed.mofo.com/consumer-products/nomination-of-a-new-chairman-at-the-cpsc/">previously reported</a>, Buerkle has guided the CPSC in a more corporate-friendly position, and her 2019 priorities included the Internet of Things, CPSC technology upgrades, and traditional product safety initiatives, such as furniture tipover safety. The White House has yet to indicate whether Republican Commissioner Dana Baiocco or Peter Feldman will be tapped to fill the Chairman role, or if the person selected to fill Buerkle’s CPSC seat will also get the nod for Chairman. You can find more of MoFo’s Class Dismissed articles about Buerkle <a href="https://classdismissed.mofo.com/?s=buerkle">here</a>.

Change Is in the Air: Buerkle Withdraws Her Nomination to Chair the CPSC

This week, Acting Chairman Ann Marie Buerkle withdrew her nomination to serve as Chairman of the U.S. Consumer Product Safety Commission (CPSC). She will wrap u

Change Is in the Air: Buerkle Withdraws Her Nomination to Chair the CPSC

Internet of Things

Product Liability

CPSC

On June 7, 2019, an en banc Ninth Circuit panel affirmed certification of a nationwide settlement class and held, 8-3, that class certification criteria are applied less strictly in a settlement context.[1]  Hyundai II preserves the ability to certify nationwide settlement classes while maintaining more demanding requirements for litigation classes.  As noted in our earlier post, the prior panel decision,[2] which denied certification, sent class action lawyers into a tizzy, creating concerns about the viability of nationwide class settlements.  Hyundai II reversed course, holding that the predominance requirement differs in a settlement context because there is no need to consider the manageability of individual issues at trial.Case BackgroundAs we discussed in our previous post, a flurry of class actions were filed nationwide after the EPA launched an investigation regarding complaints that Hyundai and Kia had overstated the fuel efficiency of some of their vehicles.  The MDL panel consolidated the cases before Judge Wu in the Central District of California, and Judge Wu granted plaintiffs’ motion for certification of the settlement class.  The three-judge panel in Hyundai I vacated the trial court’s decision, holding that the Rule 23(b)(3) predominance inquiry required a choice-of-law analysis, as well as proof of classwide deception, essentially identical to what is required for certification of a litigation class.On July 27, 2018, the Ninth Circuit granted en banc review of the panel decision.Predominance Analysis  Hyundai II held that Rule 23(b)(3) predominance factors must be considered in light of the reason for which certification is sought—litigation or settlement.  Citing the Supreme Court’s decision in Amchem,[3] the Ninth Circuit held that in the settlement context, manageability problems created by the need to resolve individual issues at trial are not a concern because no trial will occur.  Instead, the focus is on the Rule 23 provisions intended to protect absent class members by blocking “unwarranted or overbroad class definitions.”Individual Issues Regarding Exposure and Reliance Did Not Defeat Predominance for a Settlement ClassIn Hyundai II, the Ninth Circuit concluded that common issues predominated regarding exposure and reliance, because so-called “Monroney stickers” containing the alleged fuel efficiency misrepresentations were present on every new car.  The Objectors-Appellants argued that the class of used-car purchasers may not have seen the “Monroney stickers” because they were not required to be displayed on used cars.  The trial court had rejected this argument on the basis that the alleged misrepresentations were part of a nationwide, concerted marketing effort.  The Hyundai II panel, however, did not decide whether Hyundai’s and Kia’s advertising was substantial enough to support an inference of reliance under the Tobacco II standard in a litigation context.<a name="_ftnref4" href="#4033971-v3-Hyundai_-_Ninth_Circuit_Article.docx">[4]</a>  Rather, the court limited its decision to the settlement context and concluded that the potential individual issues would apply only to a subset of the class and thus did not defeat predominance for the settlement class overall.  Moreover, the potential individual issues would “primarily implicate trial management issues, which we do not consider when conducting a predominance analysis for a settlement class.”Variations in State Law Did Not Defeat Predominance for a Settlement ClassHyundai II rejected the objectors’ argument that, in the settlement context presented, Mazza v. American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012), required the district court to address variations in state law affecting claims by used car purchasers.  While a party litigant could “timely invoke the law of a foreign state,” here, no objector had presented an adequate choice-of-law analysis, or argued that differences between the consumer protection laws of all fifty states precluded certification of a settlement class.  As such, the district court was not obligated to address choice-of-law issues, and the Ninth Circuit would not decertify the class for lack of such an analysis.Moreover, the Ninth Circuit held that Mazza was “readily distinguishable.”  There, unlike in the case before the court, the foreign law proponent had “exhaustively detailed the ways in which California law differs from the laws of the 43 other jurisdictions,” and showed how applying the facts to those disparate state laws made “a difference in this litigation.”  The en banc panel emphasized that:  “Importantly, the Mazza class was certified for litigation purposes.  The prospect of having to apply the separate laws of dozens of jurisdictions presented a significant issue for trial manageability, weighing against a predominance finding.”Finally, Hyundai II concluded that application of California law did not violate due process notwithstanding that, under Virginia law, Virginia residents’ claims might be time-barred if they opted out.  Significantly, the Ninth Circuit held that the Virginia objector was free to opt out, but “could not opt out on behalf of anyone else.”  The decision thus eliminates the threat sometimes made by objectors to opt out an entire subclass.Settlement Approval Was Otherwise ProperUnlike a number of recent Ninth Circuit decisions that have been notably critical of the details of class settlements, the en banc panel in Hyundai II rejected a variety of challenges to the settlement and settlement procedures.  It held that both the long form and short form notices were proper.  The long form notice adequately described the terms of the settlement and informed settlement class members that additional compensation could be received.  The short form notice “was designed to be, as the name suggests, short.”  It satisfied its “primary purpose” of alerting class members to the settlement; it provided a high-level overview of the process (including critical dates), and explained where class members could obtain additional information and claim forms.Hyundai II also rejected the argument that claim forms were not necessary and that the claim forms were overly burdensome.  Although the participation rate of lump sum claimants was only 23 percent, the Ninth Circuit noted that it had approved class action settlements “where less than five percent of class members filed claims.”  Finally, the Ninth Circuit found no evidence of collusion between class counsel and the automakers, noting that there was no “clear sailing” provision, no reversion of unclaimed funds to the defendants, and no disproportionate distribution of settlement funds to class counsel.DissentIn her dissent, Judge Ikuta, who authored the original panel decision, largely adopted the analysis contained in that decision.  The dissent argues that settlement classes are not different, and that the trial court should have done a full choice-of-law analysis, as would have been required for a litigation class.TakeawaysHyundai II reaffirms that, in appropriate cases, nationwide settlement classes can be certified under a less stringent standard than litigation classes.  At the same time, the decision is cabined to the settlement context and preserves intact the far more demanding predominance analysis required for certification of a litigation class.________________________________________________________________[1] In re Hyundai and Kia Fuel Economy Litig., 2019 WL 2376831 (June 6, 2019) (“Hyundai II”).[2] In re Hyundai and Kia Fuel Economy Litig., 897 F.3d 1003 (9th Cir. 2018) (“Hyundai I”).[3] Amchem Products Inc. v. Windsor, 521 U.S. 591 (1997).[4] In re Tobacco II Cases. 46 Cal. 4th 298 (2009).

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American Booksellers Association v. Barnes &amp; Noble, Inc.


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 pro

Penelope Preovolos

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Ninth Circuit’s En Banc Hyundai Decision: Less Strict Standard For Settlement Classes

Start Your Engines: The U.S. Supreme Court Will Yet Again Review the Constitutional Limits of Personal Jurisdiction in a Pair of Cases Involving Ford Motor Company

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On June 7, 2019, an en banc Ninth Circuit panel affirmed certification of a nationwide settlement class and held, 8-3, that class certification criteria are app

Ninth Circuit’s En Banc Hyundai Decision: Less Strict Standard For Settlement Classes