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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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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The First Circuit Court of Appeals’ recent decision in Yershov v. Gannett Satellite Information Network, Inc., — F.3d —-, Case No. 15-1719, 2016 WL 1719825 (1st

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First Circuit Issues Potentially Significant Ruling on Federal Video Privacy Statute’s Application to Mobile Apps

First Circuit Issues Potentially Significant Ruling on Federal Video Privacy Statute’s Application to Mobile Apps | Class Dismissed

The First Circuit Court of Appeals’ recent decision in Yershov v. Gannett Satellite Information Network, Inc., — F.3d —-, Case No. 15-1719, 2016 WL 1719825 (1st Cir. Apr. 29, 2016), may carry important implications for mobile app providers seeking to navigate federal privacy laws—in particular, the Video Privacy Protection Act of 1988 (VPPA).  Although Yershov is not the first case to consider how the VPPA applies to mobile apps, the opinion contains two key holdings regarding (i) the scope of protectable personally identifiable information (PII) and (ii) the treatment of free app downloaders under the statute.The VPPA.  The VPPA was passed in 1988, after the video rental history of then-Supreme Court nominee Judge Robert Bork was disclosed in a newspaper article during debate over his nomination.  The VPPA is intended to preserve personal privacy in connection with the rental, purchase, or delivery of video and audio materials and creates a “civil remedy against a ‘videotape service provider’ for ‘knowingly disclos[ing], to any person, [PII] concerning any consumer of such provider.’”  Yershov, 2016 WL 1719825, at *2 (quoting 18 U.S.C. § 2710(b)(1), alterations in opinion).  Of relevance in Yershov, the statute defines “consumer” as “any renter, purchaser, or subscriber of goods or services from a videotape service provider.”  18 U.S.C. § 2710(a)(1).  The VPPA defines PII to “include[] information which identifies a person as having requested or obtained specific video materials or services from a videotape service provider.”  Id. § 2710(a)(3).Case Background.<a href="#_ftn1" name="_ftnref1">[1]</a>  In late 2013, Yershov downloaded the free USA Today Mobile App (the “App”) on his Android mobile device.  The App is offered by Gannett via the Google Play Store and allows the user to access various USA Today media and content, including videos, on the user’s mobile device.  Yershov claims that he watched numerous video clips on the App.  Each time, he says Gannett and its third-party marketing and analytics vendor collected three pieces of data:  (i) the title of the video Yershov viewed; (ii) the GPS coordinates of the device Yershov used; and (iii) Yershov’s unique Android ID.  According to Yershov, the vendor used this information to create “digital dossiers” for Yershov and similarly situated users, which Gannett in turn used to provide targeted advertising.  Yershov says he never consented to the collection of this data.  He filed a putative class action lawsuit as a result, claiming that Gannett’s actions violated the VPPA.Gannett successfully moved to dismiss Yershov’s VPPA claim.  Although the district court held that the information Gannett collected and disclosed to its vendor constituted PII, it concluded that Yershov failed to allege that he was a renter, purchaser, or subscriber of Gannett’s video content and, therefore, he was not a “consumer” with a right of action under the VPPA.  Yershov appealed.First Circuit Revives Yershov’s Claim.  The First Circuit reversed the district court’s dismissal order and remanded for further proceedings.  First, the panel agreed with the district court that the information conveyed to the vendor by Gannett constituted PII under the VPPA.  According to the panel, the VPPA’s “abstract formulation” of PII does not require the information at issue to “explicitly name[] a person” to come within the ambit of the statute.  Yershov, 2016 WL 1719825, at *2.  Rather, it is sufficient if the information “effectively reveal[s] the name,” or identity, “of the video viewer” without too much uncertainty or “yet-to-be-done, or unforeseeable detective work.”  Id. at *3.  Because Yershov alleged that Gannett’s vendor could connect the GPS coordinates and Android ID with a given person’s “name, address, phone number, and more,” the panel concluded that he sufficiently alleged a “firm and readily foreseeable” linkage between the data collected and the user’s identity.  Id.Second, the panel addressed the “closer question” of whether Yershov is a “subscriber” and, therefore, a consumer under the VPPA.<a href="#_ftn2" name="_ftnref2">[2]</a>  Lacking a clear statutory definition, the panel evaluated various dictionary definitions of “subscribe,” which “include as an element a payment of some type and/or presume more than a one-shot transaction.”  Id. at *4.  The panel expressly rejected the notion that the term “subscriber” incorporated a monetary payment requirement.  Requiring monetary payment as an element, the panel reasoned, would render “subscriber” superfluous vis-à-vis the terms “purchaser” and “renter,” both of which necessarily require monetary payment.  According to the panel, “Congress would have had no need to include a third category of persons [i.e., subscribers] protected under the Act if it had intended that only persons who pay money for videos be protected.”  Id.  The panel also found it significant that, in 2012, Congress considered the impact of the VPPA on video content in the age of the Internet and left the definition of “consumer” untouched—an indication, according to the panel, that “Congress understood its originally-provided definition to provide at least as much protection in the digital age as it provided in 1988.”  Id.In the end, the panel concluded that qualifying as a “subscriber” requires some kind of relationship between the individual and the video provider that gives the individual some form of special access to the video content.  As the panel stated:<ol style="list-style-type: none;"><li>[B]y installing the App on his phone, thereby establishing seamless access to an electronic version of USA Today, Yershov established a relationship with Gannett that is materially different from what would have been the case had USA Today simply remained one of millions of sites on the web that Yershov might have accessed through a web browser.</li></ol>Id. at *5.Looking Ahead.Yershov is not without its critics and, indeed, its holdings conflict with those of other courts that have considered similar issues.  For example, multiple courts have concluded that a unique, numerical device identifier is not PII under the statute.  See, e.g., In re Hulu Privacy Litig., Case No. C 11-03764 LB, 2014 WL 1724344, at *6-7 (N.D. Cal. Apr. 28, 2014); In re Nickelodeon Consumer Privacy Litig., Case Nos. 12-07829, 13-03755, 13-03729, 13-03757, 13-03731, 13-03756, 2015 WL 248334, at *3 (D.N.J. Jan. 20, 2015).  Yershov does not address these contrary decisions.Other courts have also adopted a narrower reading of “subscriber,” requiring more of a “commitment” than that which arises from downloading a free app.  See Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1256-58 (11th Cir. 2015).  Yershov distinguished Ellis on its facts—in particular, the alleged process associated with downloading and installing the apps involved in each case—but the diverging conclusions could indicate a more fundamental disagreement regarding what it means to download and use free software.Yershov shows the continuing split among courts interpreting the scope of the VPPA. <a href="#_ftnref1" name="_ftn1">[1]</a> This background comes from Yershov’s allegations in the operative complaint, which were taken as true for purposes of the Court’s opinion.<a href="#_ftnref2" name="_ftn2">[2]</a> Yershov did not claim to be a renter or purchaser for purposes of the statute.