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

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Partner

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

Adam Hunt

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

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

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

Alexandra Barlow

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

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Senior Counsel

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

Penelope A. Preovolos

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

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Associate

Zak Newman

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

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Mitchell Hokanson

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

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

A New Era of Climate Accountability: State Climate Superfund Laws Gain Momentum

APHIS Reinstates Legacy Biotechnology Regulations: Implications for CRISPR-Edited Plants

California Updates Prop 65 Short-Form Warning Requirements

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On October 15, 2017, California Governor Jerry Brown signed into law Senate Bill 258, known as the Cleaning Product Right to Know Act of 2017. The Act requires manufacturers of most cleaning products sold in California to disclose detailed information regarding their chemical content on the product label and on the manufacturers’ websites. While several California laws—such as Proposition 65 and the Green Chemistry Initiative—require some degree of product ingredient transparency, no prior California law has gone this far.Companies that manufacture or sell cleaning products in California should begin to familiarize themselves with these new requirements as soon as possible, as the Act requires major changes to current labeling and disclosure practices, which may prove to be costly and time-consuming to implement. This client alert provides an overview of the Cleaning Product Right to Know Act’s key requirements.

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

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Full Disclosure: New Labeling for Cleaning Products

Full Disclosure: New Labeling for Cleaning Products

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On October 15, 2017, California Governor Jerry Brown signed into law Senate Bill 258, known as the Cleaning Product Right to Know Act of 2017. The Act requires 

Nail polish, household cleaners, carpets, upholstery, lead acid batteries and other products may be targeted for regulation under California’s Safer Consumer Products Program. The Program, also known as the California Green Chemistry Initiative, is an innovative regulatory scheme to evaluate and seek safer substitutes for hazardous chemicals in consumer products.

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Consumer Product Update – California’s Green Chemistry Initiative Looks for New Products to Regulate

California Proposes Next Group of Priority Products Under Its Green Chemistry Initiative

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Nail polish, household cleaners, carpets, upholstery, lead acid batteries and other products may be targeted for regulation under California’s Safer Consumer Pr

Consumer Product Update – California’s Green Chemistry Initiative Looks for New Products to Regulate

A year from now, dramatic changes to California’s Proposition 65 warning regulations take full effect. The new regulations (formally published by the State in August 2016) significantly alter the “safe harbor” rules for providing Prop 65 warnings. Companies that have not yet started preparing for the implications of these new rules will need to do so before the new regulations go into full effect on August 30, 2018.Under Prop 65, businesses with 10 or more employees must provide “clear and reasonable warning”  before knowingly and intentionally exposing individuals in California to a chemical listed by the state as known to cause cancer or reproductive toxicity. The Prop 65 regulations provide a safe harbor for warning language and methods of transmission officially deemed “clear and reasonable.” That safe harbor will shrink significantly under the new regulations. A generic Prop 65 warning that does not identify a specific chemical will no longer be sufficient in most circumstances. Many warnings will also have to contain the exclamation point within a triangle symbol shown left and be given in multiple languages. Finally, virtually all warnings will need to include either the URL “<a href="http://P65Warnings.ca.gov">P65Warnings.ca.gov</a>,” or the food-product-specific “<a href="http://P65Warnings.ca.gov/food">P65Warnings.ca.gov/food</a>.”

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Warning: New Proposition 65 Warning Regulations Taking Effect

WARNING: Proposition 65 Farce About to Repeat Itself for Vulnerable Foods and Flavorings

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A year from now, dramatic changes to California’s Proposition 65 warning regulations take full effect. The new regulations (formally published by the State in A

Warning: New Proposition 65 Warning Regulations Taking Effect

California took two important steps forward to implement its new Green Chemistry Initiative, also known as the Safer Consumer Products (SCP) Program, to regulate and encourage replacement of toxic chemicals in consumer products.  First, it adopted new regulations for its first priority product, children’s foam-padded sleeping products that contain the flame retardants TDCPP or TCEP, including:<div class="container-fluid main"><div class="row body"><div class="body-container "><div class="col-md-8 col-md-push-2 col-sm-12 col-xs-12"><ul><li>Nap mats and cots</li><li>Sleep positioners</li><li>Travel beds</li><li>Bassinet foam</li><li>Portable crib mattresses</li><li>Playpens</li><li>Car bed pads</li></ul></div></div></div></div>

California Adopts First Green Chemistry Regulations for Children’s Nap Mats and Provides Important Guidance for Its Alternatives Analysis

California took two important steps forward to implement its new Green Chemistry Initiative, also known as the Safer Consumer Products (SCP) Program, to regulat

California Adopts First Green Chemistry Regulations for Children’s Nap Mats and Provides Important Guidance for Its Alternatives Analysis

California’s innovative Safer Consumer Products regulations, also known as the Green Chemistry Initiative, are ready for another step forward with the proposed inclusion of Spray Polyurethane Foam (SPF) Systems containing Unreacted Methylene Diphenyl Diisocyanates (MDI) as a Priority Product. These SPF systems are used for insulation, roofing, or sealants and raise safety concerns because of their widespread use by both professional contractors and “do-it-yourself” users for home repairs. This is the second Priority Product proposed for listing, following the inclusion of children’s foam-padded sleeping products with fire retardants.

California Adds New Priority Consumer Product for Green Chemistry Regulation

California’s innovative Safer Consumer Products regulations, also known as the Green Chemistry Initiative, are ready for another step forward with the proposed 

California Adds New Priority Consumer Product for Green Chemistry Regulation

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

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

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

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

On November 18, 2016, the Ninth Circuit issued five rulings rejecting three Hawaii counties’ attempts to regulate pesticides and genetically modified crops, finding that the regulations were preempted by state and federal laws.Alika Atay et al. v. County of Maui et. al.In Atay, citizens of Maui County had voted into law an ordinance that banned the planting and testing of genetically engineered (“GE”) plants.  Maui citizens were concerned about the effects of GE crops and pesticides, particularly in Maui, which “had become an attractive location for field tests” of genetically engineered crops and pesticides.   After the ordinance passed, a group of proponents of the ordinance filed suit, seeking declaratory relief to resolve the ordinance’s legality.  At the same time, opponents of the ordinance filed suit against Maui County to invalidate the ordinance.  After removal to federal court, the district court later granted the opponents’ motion for summary judgment.The Ninth Circuit affirmed the district court’s order on summary judgment.  While the citizen groups had standing to bring the claim, the ordinance was expressly preempted by federal and state law.StandingRelying on Hollingsworth v. Perry, 133 S. Ct. 2652 (2013), opponents of the ordinance argued that proponents lacked standing to defend the constitutionality of the ordinance because the relevant public officials had chosen not to.  The Ninth Circuit disagreed, finding that proponents could establish standing if they could do so independently of their status as ballot initiative proponents.  Unlike in Hollingsworth, appellants established an interest of their own: GE farming operations would threaten economic harm to their organic, non-GE farms.  Opponents had therefore established Article III standing.Federal PreemptionThe Ninth Circuit held that the ordinance was expressly preempted by the Plant Protection Act (“PPA”), to the extent the ordinance bans genetically engineered plants that the U.S. Animal and Plant Health Inspection Service (“APHIS”) regulates as plant pests.  As the court explained, the PPA includes an express preemption provision forbidding a state or local agency from regulating the movement in interstate commerce of a plant, if the regulation is intended to control or eradicate that plant, and if the APHIS has regulated the specific plant.  All conditions were met here.State PreemptionThe Ninth Circuit also held that, while the ban was not impliedly preempted by the PPA in its application to crops that APHIS had deregulated, it was impliedly preempted to these crops by Hawaii’s state statutory scheme for the regulation of potentially harmful plants.  This was because the ordinance addressed the same subject as Hawaii law—the regulation of potentially harmful plants and invasive species.  Moreover, the state’s statutory scheme made clear that the legislature intended for the State’s regulation of potentially harmful plants to be exclusive of supplemental local regulations.  As such, the ordinance was preempted by Hawaii state law.Other Hawaii CasesThe Ninth Circuit also blocked similar attempts to regulate pesticides in Kauai, County and Hawaii County in Syngenta Seeds Inc. et al. v. County of Kauai et al., No. 14-16833, and Hawai’i Papaya Industry Assn. et al. v. County of Hawaii, No. 14-17538.In Syngenta, the Ninth Circuit shut down Kauai County’s attempt to regulate pesticides and GE plants, applying the Hawaii Supreme Court’s “comprehensive statutory scheme” test to find that the ordinance was preempted by state law.   In Hawaii Papaya Industry, the court found that the ordinances were expressly preempted by federal law for the same reasons set forth in Atay.  The ordinances were also impliedly preempted by state law for the same reasons set forth in Atay and Syngenta.

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The Ninth Circuit Kills GMO Pesticide Regulations in Hawaii Counties

The Ninth Circuit Kills GMO Pesticide Regulations in Hawaii Counties

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On November 18, 2016, the Ninth Circuit issued five rulings rejecting three Hawaii counties’ attempts to regulate pesticides and genetically modified crops, fin

Last Friday, the state published the first major changes to the Proposition 65 regulations in more than a decade. The sweeping changes rewrite the “safe harbor” warning regulations and, in doing so, create a new set of challenges for businesses offering products or operating facilities in California.

WARNING: California Adopts New Proposition 65 “How to Warn” Rules

Last Friday, the state published the first major changes to the Proposition 65 regulations in more than a decade. The sweeping changes rewrite the “safe harbor”

WARNING: California Adopts New Proposition 65 “How to Warn” Rules

Four years after California’s genetically engineered (GE) food labeling initiative was defeated, but just days before Vermont’s GE law is to go into effect, the U.S. Senate is poised to impose such labeling nationwide. The proposed legislation is the result of a compromise of interests between Senate Agriculture Chairman Pat Roberts, R-Kansas, and ranking Democrat Debbie Stabenow of Michigan, and will need 60 votes to pass the Senate.

Nationwide GE Labeling Leaps Forward

Four years after California’s genetically engineered (GE) food labeling initiative was defeated, but just days before Vermont’s GE law is to go into effect, the

Nationwide GE Labeling Leaps Forward

President Obama has signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amends the Toxic Substances Control Act (TSCA) for the first time since it was enacted in 1976. The compromise bill passed by Congress is a major accomplishment at the end of President’s Obama’s administration.The amendment will add new teeth to TSCA, a federal statute regulating the manufacture and sale of chemicals. The law has long been considered as ineffectual due in part to a requirement that EPA implement the “least burdensome” regulations. By removing that language and giving new regulatory powers to EPA, the Lautenberg Act will significantly change the regulatory landscape for chemical manufacturers, processors, and importers.

Federal Toxics Law Grows Up: Congress Strengthens the Toxic Substances Control Act

President Obama has signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amends the Toxic Substances Control Act (TSCA) for the first 

Federal Toxics Law Grows Up: Congress Strengthens the Toxic Substances Control Act