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 April 17, 2018, the Northern District of New York dismissed a false advertising case against the Hain Celestial Group, Inc. based on the allegedly misleading packaging of Hain’s “Garden Veggie Straws.” Solak v. Hain Celestial Group, Inc., Case No. 3:17-cv-00704 (N.D.N.Y).  In particular, plaintiff took umbrage with depictions on the product’s packaging, including images of fresh vegetables and the use of the words “garden” and “veggie.”  These depictions, plaintiff claimed, misled consumers into believing the straws contained “significant” amounts of whole vegetables and were healthful and nutritious.  Not so, held the court.  The court found that the challenged statements and images were not misrepresentations and would not mislead a reasonable consumer.In its opinion, the court noted that the images of the Straws themselves made it sufficiently clear to consumers the nature of the product they bargained for. As the court described, the images depicted a “processed, unnaturally-colored ‘straw’ snack resembling a chip or crisp.”  A reasonable consumer would be familiar with the “fact of life” that a chip-like snack was not composed primarily of fresh vegetables.  Even more, a reasonable consumer need only refer to the ingredient list on the package to resolve any ambiguity about the vegetable content of the product.The court also dismissed plaintiff’s express warranty claim. The court reasoned that defendant’s representations, even when considered collectively, were insufficient as a matter of law to mislead a reasonable consumer, and therefore could not be relied upon by plaintiff as grounds for asserting a breach of express warranty under New York or California law.

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The Last Straw: Northern District of New York Chucks “Garden Veggie Straws” Case

The Last Straw:  Northern District of New York Chucks “Garden Veggie Straws” Case

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On April 17, 2018, the Northern District of New York dismissed a false advertising case against the Hain Celestial Group, Inc. based on the allegedly misleading

For the second time, an Illinois federal judge powered down a proposed class action against VTech Electronics following a 2015 data breach of its internet-connected digital learning toys. The data breach also triggered separate allegations by the Federal Trade Commission (FTC) that VTech violated federal children’s privacy laws.Both developments illustrate the increasing exposure that the Internet of Things brings when consumer product manufacturers collect and store consumers’ personal data with connected devices. They also demonstrate how the need to address these issues upfront is imperative.VTech Toy Data Breach Class Claims Dismissed AgainIn In re VTech Data Breach Litigation, Case No. 1:15-cv-10889 (N.D. Ill. 2018), Plaintiffs sought to represent a class of consumers who purchased VTech’s digital learning devices.  Their claims arose after a hacker lifted personally identifiable information affecting 4.8 million adult accounts and 6.3 million child profiles linked to the devices.  Plaintiffs alleged that VTech broke promises to consumers because of its inadequate data-protection measures and subsequent suspension of online services accompanying the devices.The court disagreed. It had dismissed the suit once before on multiple grounds, including lack of standing to show future harm and failure to state a claim.  In granting VTech’s motion to dismiss for the second time, the court rejected Plaintiffs’ arguments that VTech spurned any implied promises it made to consumers at the time of purchase.The court reasoned that the alleged promises must be controlled by the express terms and conditions consumers agreed to when first using VTech’s online services post-sale. However, Plaintiffs failed to allege that VTech breached the express online service terms or the incorporated Privacy Policy that governed the device’s internet features.Plaintiffs also asserted that VTech’s online service suspension rendered the toy devices essentially useless in breach of the implied warranty of merchantability. VTech countered that Plaintiffs could not show that anything was actually wrong with the toys themselves or that users could never access the online services.  The court agreed with VTech, finding these pleading defects fatal to Plaintiffs’ claim.Finally, the court dismissed without prejudice Plaintiffs’ remaining allegations for unfair and deceptive business practices for failing to meet the heightened pleading requirement for fraud-based claims and dismissed the unjust enrichment claims on choice-of-law grounds.FTC Brings First Enforcement Action Under COPPA Involving Children’s IoT DevicesWhile the proposed class action sat in Illinois district court, the FTC filed a complaint against VTech in the FTC’s first children’s privacy case involving IoT toy products under the Children’s Online Privacy Protection Act (COPPA).Under COPPA, companies that collect personal information online from children under 13 must take reasonable steps to protect children’s data, including providing direct notice to parents that the device collects such information and obtaining their consent. The FTC claimed VTech failed to take these steps.The FTC also alleged that VTech’s Privacy Policy falsely stated that consumers’ personal information would be encrypted when in fact it was not.VTech settled with the FTC for $650,000 and agreed to implement a comprehensive data security program to ensure future compliance with COPPA and to protect consumers’ personal information.Implementing Effective Cybersecurity MeasuresVTech’s case—albeit a favorable result compared with its potential exposure—highlights the importance of implementing sound data privacy and security measures in consumer IoT devices as courts, federal regulators, and industry leaders grapple with <a href="https://classdismissed.mofo.com/consumer-products/connected-devices-bring-new-product-liability-challenges/">the interplay between cybersecurity and product liability</a>.For example, the Consumer Product Safety Commission (CPSC) will hold a <a href="https://classdismissed.mofo.com/consumer-products/cpsc-will-sharpen-its-focus-on-iot-in-upcoming-public-hearing-about-internet-connected-devices/">public hearing</a> on May 16, 2018, to discuss potential safety issues and hazards associated with IoT consumer products.As they continue to churn out internet-connected consumer products, IoT companies face increasing litigation risk from data breaches, privacy-related claims, and regulatory enforcement actions. Bringing in specialists to address these issues before they arise will reduce the inherent risks associated with IoT consumer products.

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

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Digital Toy Product Company Ducks Data Breach Class Action

Thank You, Next Enforcement: Music Video App Violates COPPA, Will Pay $5.7 Million

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For the second time, an Illinois federal judge powered down a proposed class action against VTech Electronics following a 2015 data breach of its internet-conne

Digital Toy Product Company Ducks Data Breach Class Action

On June 19, 2017, the U.S. Supreme Court issued a decision that has the potential to reshape the way class actions are litigated in courts throughout the country. In Bristol-Myers Squibb Co. v. Superior Court of California,[1] or BMS, the court clarified the scope of specific personal jurisdiction in the context of a mass tort action brought in California state court. Since that decision, some defendants have attempted to use BMS as a sword in response to putative nationwide class actions, with varying levels of success. No circuit court has yet to weigh in on the question of whether BMS applies in the class action context. But even if courts begin to consistently dismiss putative nationwide classes on BMS grounds, filing a motion to dismiss for lack of personal jurisdiction may not always be the best strategic and business decision for defendants.Please see our full article as published in <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt42545a4026ffe024/6273152b4d9f892971290137/180425-law360-bristol-myers-squibb.pdf">Law360</a>.

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy mat

Claudia Vetesi

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Bristol-Myers Squibb: A Dangerous Sword

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On June 19, 2017, the U.S. Supreme Court issued a decision that has the potential to reshape the way class actions are litigated in courts throughout the countr

Bristol-Myers Squibb: A Dangerous Sword

Running a successful consumer products company in a rapidly evolving business landscape is no small feat. Consumer trust is central to success, but events like product recalls, contaminations, product defects, privacy violations, and data breaches can undermine that trust. These risks only increase when products are connected to the internet, contain sensitive consumer information, or operate autonomously. While it’s impossible to anticipate all risks, it’s helpful to be mindful of common industry pitfalls.If you’re concerned or curious about what the legal landscape for your company looks like in 2018, download Morrison & Foerster’s new report, Legal Risks to Consumer Products Companies, to gain deeper awareness into some of the top risks facing consumer products companies today. The report includes insights into:<ul><li>The most important drivers of change for consumer products companies in 2018.</li><li>The areas that are expected to give rise to the most new case activity in 2018.</li><li>The biggest legal concerns within in-house legal departments.</li></ul><a href="https://protect-us.mimecast.com/s/nzBIC9rLGjHvwYv4cBttYp">Read the report</a> to get survey data and in-depth analyses related to these and other pressing issues.

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The 2018 Legal Landscape: Here’s What’s In Store for Consumer Products Companies

The 2018 Legal Landscape: Here’s What’s In Store for Consumer Products Companies

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Running a successful consumer products company in a rapidly evolving business landscape is no small feat. Consumer trust is central to success, but events like 

What are the biggest legal risks facing consumer products companies in 2018? What are the 2018 new case activity drivers? What are your legal department’s biggest concerns for 2018? See our infographic below for results from our recent Legal Risks to Consumer Products Companies report.

Legal Risks to Consumer Products Companies

What are the biggest legal risks facing consumer products companies in 2018? What are the 2018 new case activity drivers? What are your legal department’s bigge

Legal Risks to Consumer Products Companies

You’ve created a great product and built a valued brand. You’ve devoted countless hours to building relationships with key distributors and retailers, designing attractive packaging, and forging a social media presence. But are you doing everything to ensure that your business is set up for sale? Have you taken the steps to address the potential pitfalls—those issues that will reduce the value of your company in a sale or even scare away potential buyers? If you address these 10 key issues as you build your company, you will be positioning your company for a value-maximizing sale.

KISS

U.S. Silica Holdings, Inc.

Ascendent Capital Partners

Astellas 

Qatalyst Partners/Multiple Transactions

Southwest Gas

Axalta

Winterhawks Sports Group

Vimian Group AB/Multiple Transactions

Fidelio Capital/Multiple Transactions

Odevo AB/Multiple Transactions

Global Co-Chair of M&A Practice

Spencer Klein

Here’s the Recipe: How to Ensure Your Food and Beverage Company Will Be Ready for a Value-Maximizing Sale