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.

Social

Search

Editors

hunt_adam_blog_150x150.png

hunt_adam_common_640x280.jpg

hunt_adam_heroretina_2700x1160.jpg

hunt_adam_mobileretina_750x1040.jpg

hunt_adam_social_600x600.jpg

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.

preece_alex_blog_150x150.png

preece_alex_common_640x280.jpg

preece_alex_heroretina_2700x1160.jpg

preece_alex_mobileretina_750x1040.jpg

preece_alex_social_600x600.jpg

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).

preovolos_penelope_blog_150x150.png

preovolos_penelope_common_640x280.jpg

preovolos_penelope_heroretina_2700x1160.jpg

preovolos_penelope_mobileretina_750x1040.jpg

preovolos_penelope_social_600x600.jpg

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.

newman_zak_blog_150x150.png

newman_zak_common_640x280.jpg

newman_zak_heroretina_2700x1160.jpg

newman_zak_mobileretina_750x1040.jpg

newman_zak_social_600x600.jpg

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.

hokanson_mitchell_blog_150x150.png

hokanson_mitchell_common_640x280.jpg

hokanson_mitchell_heroretina_2700x1160.jpg

hokanson_mitchell_mobileretina_750x1040.jpg

hokanson_mitchell_social_600x600.jpg

Mitchell Hokanson

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

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.

Welcome to Class Dismissed

class-dismissed-welcome-image.jpeg

class-dismissed-welcome-image

Morrison Foerster’s Class Dismissed blog provides insights and reports on the latest news, developments, and trends that affect consumer-facing companies. 

Class Action

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry.

MoFo Tech

Equips our clients with the most up-to-date and relevant information on employment and labor law issues.

Employment Law Commentary

Stay on top of emerging issues and stay informed of developments related to the law and business of social media.

Socially Aware

In-depth analysis of developments and trends impacting government contracting.

Government Contracts Insight

The latest news and insights from the nationally recognized Consumer Class Action and Product Liability practices of Morrison & Foerster.

Class Dismissed

  Linkedin

MoFo LinkedIN

Class Dismissed Blog - RSS

Stay Connected

By submitting your data to subscribe to this blog, you approved Morrison & Foerster LLP to email you future information about MoFo news and events. You may opt-out at any time by sending a request to <a href="mailto:mofonews@mofo.com">mofonews@mofo.com</a>. To learn more about how Morrison & Foerster LLP uses and protects your personal data, please view our <a href="https://www.mofo.com/about/privacy-policy.html">Privacy Policy</a> at <a href="https://www.mofo.com/">www.mofo.com</a>.

Never miss a post from Class Dismissed. Enter your email below to stay up-to-date.

Subscribe

Class Action and Product Insights for Your Business

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

TCPA

Announcements & Press

Antitrust

Appellate & Supreme Court

Arbitration

Autonomous Vehicles & Robotics

Aviation & Drones

Class Certification

Consumer Products

Coronavirus (COVID-19)

CPSC

Drug & Medical Device

Emergency Use Authorization (EUA)

Environmental Law

False Advertising

FCRA

Food Misbranding

Government Actions

Internet of Things

Mass Torts

Pharmaceutical & Medical Devices

Privacy

Product Liability

Public Readiness and Emergency Preparedness Act (PREP Act)

Retail

Trials

Topics

Blog - Editors

Blog - About

About

Blog - Subscribe

Adam J. Hunt

More

Alexandra Preece Barlow

Mitchell A. Hokanson

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

LinkedIN

The fate of the FTC’s long-awaited final “Click-to-Cancel” rule has become tangled in uncertainty as it faces numerous lawsuits and the new incoming presidential administration.In October, the FTC published its Final Rule requiring sellers to make it as easy to cancel a recurring subscription as it was to sign up (read our <a href="https://www.mofo.com/resources/insights/241107-the-ftc-issues-final-rule-on-click-to-cancel" target="_blank">client alert</a> breaking down the key requirements of the Final Rule). The Final Rule was passed against an ever-growing patchwork of state laws governing subscriptions, which has posed significant compliance challenges for companies offering automatic renewal contracts in the U.S. While sellers are expected comply with the majority of the Final Rule’s requirements by May 14, 2025, legal challenges to the Final Rule may delay this compliance date, and political challenges may defeat the Final Rule altogether.Read the full <a href="https://www.mofo.com/resources/insights/250109-the-ftc-s-final-click-to-cancel-rule" target="_blank">client alert</a>.

Unilever USA Inc.

Waymo LLC v. Uber Technologies Inc. et al.

Phoenix Technologies, Ltd. v. VMware, Inc.

tapernoux_camila_blog_150x150.png

tapernoux_camila_common_640x280.jpg

tapernoux_camila_heroretina_2700x1160.jpg

tapernoux_camila_mobileretina_750x1040.jpg

tapernoux_camila_social_600x600.jpg

Camila Tapernoux is an associate in the Litigation Department of Morrison Foerster’s San Francisco office. Her practice focuses on complex litigation with an emphasis on class action and commercial 

Camila A. Tapernoux

Camila Tapernoux

martinez_carson_blog_150x150.png

martinez_carson_common_640x280.jpg

martinez_carson_heroretina_2700x1160.jpg

martinez_carson_mobileretina_750x1040.jpg

martinez_carson_social_600x600.jpg

Carson Martinez is an associate in the Litigation Department of Morrison Foerster’s Boston office.

Carson Martinez

The FTC’s Final “Click-to-Cancel” Rule Faces Legal and Political Hurdles

Interest in the “right-to-repair” movement continues to grow, as a number of states propose new legislation in this realm for consumer electronics, with five states successfully enacting such laws. But these laws are not uniform; they focus on different right-to-repair principles, protect different classes of consumers, and exempt products from different industries. Affected businesses must stay abreast of the intricacies of each jurisdiction’s law, including its scope, applicability, and enforcement mechanism, to avoid potential penalties for noncompliance.As we previously reported in our August 25, 2023 <a href="https://classdismissed.mofo.com/topics/right-to-repair-laws-coming-soon-to-a-state-near-you" target="_blank">blog post</a>, three states—New York, Minnesota, and California—passed consumer electronics-focused right-to-repair laws last year. In 2024, Colorado and Oregon followed suit, although Colorado expanded the scope to agricultural equipment and powered wheelchairs. In addition, more than a dozen states have considered or are considering right to repair bills for digital electronic equipment.Oregon’s right to repair law is the first to ban “parts pairing”—i.e., using software to identify component parts with a unique identifier—to prevent the installation or functioning of a replacement part, inhibit or reduce the functionality or performance of a replacement part, or display false or misleading alerts regarding unidentified parts. Colorado’s law and the Repair Association’s 2024 version of the “<a href="https://docs.google.com/document/d/1P7Cq2QOU4gzrgJh6JzSDv4tccDu38x7n1k-noEfIuP4/edit?tab=t.0" target="_blank">Model State Digital Electronics Right to Repair Act</a>” (the Model Act) also explicitly prohibit parts pairing.Below is an updated chart that compares and contrasts each law’s main features:<div data-reactroot=""><img class="rich-text-embed-image" alt="241227-graphic.PNG" src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt7a0f382d96bc5d29/677333c8f3e7d99f46865ce6/241227-graphic.PNG?format=auto&amp;quality=60"/></div>Looking AheadAs right-to-repair legislation for digital electronic equipment continues to spread across the United States, manufacturers should take a proactive approach by developing compliance strategies and determining whether those measures are sufficient for each state’s law. Morrison Foerster’s products liability team remains available to assist with understanding the potential impact of these laws on your operations and legal strategies.<hr class="divider"><a href="#_ftnref1" target="_self">[1]</a> A violation of the Digital Fair Repair Act is a deceptive trade practice, and “[a]ll remedies, penalties, and authority granted to the attorney general under section 8.31 are available to the attorney general to enforce this section.” Minn. Stat. § 325E.72, Subd. 4 (2023).<a href="#_ftnref2" target="_self">[2]</a> Colorado’s bill addresses neither an enforcement mechanism nor a civil penalties scheme, but the fiscal note for the bill suggests that a violation of the state’s right-to-repair law for digital electronic equipment is a deceptive trade practice. Brendan Fung, HB 24-1121 Final Fiscal Note, Colorado General Assembly (June 24, 2024), https://leg.colorado.gov/sites/default/files/documents/2024A/bills/fn/2024a_hb1121_f1.pdf. Under the Colorado Consumer Protection Act, any person who engages in a deceptive trade practice may be subject to a civil penalty of up to $20,000 for each violation. Colo. Rev. Stat. § 6-1-112(1)(b) (2023).<a href="#_ftnref3" target="_self">[3]</a> The Repair Association’s 2024 version of the Right to Repair Legislative Template adds the following provision regarding security-related features: “Nothing in this section shall be construed to require a manufacturer to make available special documentation, tools, and parts that would disable or override anti-theft security measures set by the owner of the product without the owner’s authorization.” Comparing the 2023 and 2024 Right to Repair Legislative Templates, Right to Repair Legislation, <a href="https://www.repair.org/legislation" target="_blank">https://www.repair.org/legislation</a> (last visited Nov. 4, 2024).<a href="#_ftnref4" target="_self">[4]</a> No, unless “the individual components may pose a heightened safety risk if installed improperly.” N.Y. Gen. Bus. Law § 399-nn(3)(i) (McKinney 2023).<a href="#_ftnref5" target="_self">[5]</a> The MN Act is silent on this topic. Like California’s Act, Minnesota defines “part” to include “any replacement part or assembly of parts[.]” Minn. Stat. § 325E.72, Subd. 2(p) (2023).<a href="#_ftnref6" target="_self">[6]</a> The CA Act is silent on this topic. However, the CA Assembly on Privacy and Consumer Protection’s 06/23/23 Analysis stated that “the bill’s definition of ‘part’ includes an ‘assembly of parts.’ [So] if it would be hazardous for a product owner or repairperson to handle a specific component, the manufacturer can provide the component as part of a safer-to-handle assembly.” Jesse Gabriel, SB-244 Bill Analysis, CA Assembly Committee on Privacy and Consumer Protection (June 21, 2023).<a href="#_ftnref7" target="_self">[7]</a> No, “except as necessary to provide documentation, parts, and tools on fair and reasonable terms.” Minn. Stat. § 325E.72, Subd. 5(a) (2023).<a href="#_ftnref8" target="_self">[8]</a> No, “[e]xcept as necessary to comply with this section.” Cal. Pub. Res. Code § 42488.2(c) (2023).<a href="#_ftnref9" target="_self">[9]</a> No, “except as necessary to provide, on fair and reasonable terms, any documentation, tool, part or other device or implement used to diagnose, maintain, repair or update consumer electronic equipment.” S.B. 1596, 82nd Leg. Assemb., 2024 Reg. Sess. (Or. 2024).<a href="#_ftnref10" target="_self">[10]</a> No, “except that a manufacturer shall not refuse to make available to an independent repair provider or owner any documentation, part, embedded software, embedded software for agricultural equipment, firmware, tool, or, with owner authorization, data necessary to provide services on grounds that the documentation, part, embedded software, embedded software for agricultural equipment, firmware, tool, or, with owner authorization, data itself is a trade secret.” H.B. 1121, 74th Gen. Assemb., 2024 Reg. Sess. (Colo. 2024).<a href="#_ftnref11" target="_self">[11]</a> No, “except as necessary to provide documentation, parts, and tools on fair and reasonable terms.” Minn. Stat. § 325E.72, Subd. 5(a) (2023).<a href="#_ftnref12" target="_self">[12]</a> No, “[e]xcept as necessary to comply with this section.” Cal. Pub. Res. Code § 42488.2(c) (2023).<a href="#_ftnref13" target="_self">[13]</a> No, “except as necessary to provide, on fair and reasonable terms, any documentation, tool, part or other device or implement used to diagnose, maintain, repair or update consumer electronic equipment.” S.B. 1596, 82nd Leg. Assemb., 2024 Reg. Sess. (Or. 2024).<a href="#_ftnref14" target="_self">[14]</a> No, “unless such licensing is necessary for providing services[.]” H.B. 1121, 74th Gen. Assemb., 2024 Reg. Sess. (Colo. 2024).<a href="#_ftnref15" target="_self">[15]</a> Yes, except the following is not prohibited: “(I) The use of parts pairing to enable digital electronic equipment to record, catalog, and display information related to repairs done on that digital electronic equipment; or (II) A manufacturer’s use of parts pairing for standalone biometric components used for authentication purposes in digital electronic equipment, which components are not bundled in commonly replaced parts, such as a device’s screen, keyboard, ports, or battery.” H.B. 1121, 74th Gen. Assemb., 2024 Reg. Sess. (Colo. 2024).

Right-to-Repair Laws: The Trend Continues

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

bosman_erin_blog_150x150.png

bosman_erin_common_640x280.jpg

bosman_erin_heroretina_2700x1160.jpg

bosman_erin_mobileretina_750x1040.jpg

bosman_erin_social_600x600.jpg

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

park_julie_blog_150x150.png

park_julie_common_640x280.jpg

park_julie_heroretina_2700x1160.jpg

park_julie_mobileretina_750x1040.jpg

park_julie_social_600x600.jpg

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

halby_taylor_blog_150x150.png

halby_taylor_common_640x280.jpg

halby_taylor_heroretina_2700x1160.jpg

halby_taylor_mobileretina_750x1040.jpg

halby_taylor_social_600x600.jpg

Taylor Halby is an associate in the Litigation Department of Morrison Foerster’s San Diego office.

Taylor A. Halby

Taylor Halby

gettyimages-681407458-600px_image1.jpg

Right-to-Repair Laws: The Trend Continues

Consumer Product Safety Enforcement To Heat Up Under Biden Administration

gettyimages-681407458-600px_image1

Consumer products businesses should know that “right to repair” laws are here to stay. Frustrated with restrictions on repairing consumer electronics, advocacy organizations spearheaded a grassroots “right to repair” movement that is gaining traction. Publicly endorsed by the <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/" target="_blank" dir="ltr">White House</a> and the <a href="https://www.ftc.gov/system/files/documents/reports/nixing-fix-ftc-report-congress-repair-restrictions/nixing_the_fix_report_final_5521_630pm-508_002.pdf" target="_blank">Federal Trade Commission</a>, the “right to repair” movement presses manufacturers to give everyone access to the same repair resources that before had only been available to manufacturers and licensed repair vendors. Thus, affected businesses need to become familiar with new regulatory obligations in a growing number of jurisdictions.BackgroundNew York was the trailblazer in this space, enacting the first “right to repair” law in the U.S.: the <a href="https://www.nysenate.gov/legislation/bills/2023/S1320" target="_blank">New York Digital Fair Repair Act</a>, which was signed into law on March 3, 2023. Next year, the <a href="https://www.revisor.mn.gov/laws/2023/0/Session+Law/Chapter/57/" target="_blank">Minnesota Digital Fair Repair Act</a> will go into effect, and the <a href="https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202320240SB244&showamends=false" target="_blank">California Right to Repair Act</a> will likely follow suit later in 2024. Several more bills are on the road to enactment, with at least 22 state legislatures currently considering “right to repair” bills.Behind many of these bills is the Repair Association, a trade organization that developed the “<a href="https://www.repair.org/legislation" target="_blank">Right to Repair & Fair Repair Legislative Template</a>” (the Model Act). The Model Act reflects the policy objectives of the “right to repair” movement:<ul><li dir="ltr">Ensure that owners and unaffiliated repair vendors have access to the same resources available to the manufacturer or licensed repair vendors;</li><li dir="ltr">Allow owners to service their products at the repair vendor of their choice;</li><li dir="ltr">Legalize the unlocking, adapting, and modifying of any part (including software); and</li><li dir="ltr">Require implementation of “design for repair” principles in product design practices.</li></ul>Generally, “right to repair” laws require manufacturers to make repair parts, tools, and documentation publicly available if they are also available to the manufacturers and licensed repair vendors. Manufacturers must make these resources available on “fair and reasonable terms” and can do so directly to consumers or through affiliated repair vendors. However, each jurisdiction’s law has its own features and scope. This article compares and contrasts some of each law’s main features and presents key takeaways for affected businesses.Key TermsOriginal Equipment Manufacturers (OEMs): Most often, OEMs are businesses that engage in selling or leasing digital electronic equipment that they manufacture or that is manufactured on their behalf. These are covered entities and individuals.Digital Electronic Equipment (DEE): This refers to covered products, largely targeting personal electronics like cell phones, tablets, and computers. Many consumer products that rely on “embedded digital electronics” may also qualify. Each jurisdiction uniquely exempts or includes certain equipment, although some products like video game consoles are routinely exempted.Authorized Repair Providers (ARPs): These are repair vendors that previously had exclusive access to repair resources. An ARP can be the OEM itself or a repair vendor that is directly affiliated with or licensed by the OEM.Independent Repair Providers (IRPs): This term is used broadly and refers to anyone making repairs that is not considered an ARP. Essentially, an individual or business that conducts repairs on DEE and is not affiliated with or licensed by the OEM.Comparison Chart<table dir="ltr" id="_ftnref5"><colgroup data-width='726'><col style="width:41.32231404958678%"><col style="width:15.013774104683195%"><col style="width:13.911845730027547%"><col style="width:14.18732782369146%"><col style="width:15.564738292011018%"></colgroup><tbody dir="ltr" id="_ftnref5"><tr><td> </td><td>NY</td><td>MN</td><td>CA</td><td>Model</td></tr><tr><td>When does the law go into effect?</td><td>Dec. 28, 2023</td><td>July 1, 2024</td><td>Jan. 1, 2024(Proposed)</td><td>N/A</td></tr><tr><td>What are the penalties?</td><td>Up to $500 per violation.</td><td>Up to $25k, injunctive relief, and attorneys’ fees. <a href="#_ftn1" target="_self">[1]</a></td><td>$1k–$5k per day.</td><td>Mirror state’s deceptive trade practices act.</td></tr><tr><td>Is there a written notice requirement for IRPs?</td><td>Yes.</td><td>No.</td><td>Yes.</td><td>No.</td></tr><tr><td>Are there exceptions for security-related features?</td><td>Yes.</td><td>Yes.</td><td>Yes.</td><td>No.</td></tr><tr id="_ftnref1"><td>Can an OEM provide pre-assembled parts instead of individual components?</td><td>No, unless safety issues. <a href="#_ftn2" target="_self">[2]</a></td><td>Not addressed. <a href="#_ftn3" target="_self">[3]</a></td><td id="_ftnref1">Not addressed.<a href="#_ftn4" target="_self">[4]</a></td><td>Not addressed.</td></tr><tr><td>Do repair resources need to be available for modifying DEE?</td><td>No.</td><td>No.</td><td>Not addressed.</td><td>Not addressed.</td></tr><tr id="_ftnref3"><td>Is an OEM required to divulge any trade secrets?</td><td>No.</td><td id="_ftnref2">No, with limited exceptions.<a href="#_ftn5" target="_self">[5]</a></td><td id="_ftnref3">No, with limited exceptions.<a href="#_ftn6" target="_self">[6]</a></td><td>No.</td></tr><tr id="_ftnref5"><td>Is an OEM required to license any intellectual property?</td><td>No.</td><td id="_ftnref4">No, with limited exceptions.<a href="#_ftn7" target="_self">[7]</a></td><td id="_ftnref5">No, with limited exceptions.<a href="#_ftn8" target="_self">[8]</a></td><td>Not addressed.</td></tr><tr dir="ltr"><td>Is an OEM or ARP liable for damage that occurs due to repairs performed by an IRP?</td><td>No.</td><td>No.</td><td>No.</td><td dir="ltr">No.</td></tr></tbody></table>Key Takeaways“Right to repair” laws will soon go into effect, expanding quickly into more U.S. jurisdictions. While they share many similarities, these laws can vary significantly in scope. Currently the Model Act is the broadest and offers the fewest exceptions for manufacturers, presenting significant implications for a business’s intellectual property portfolio, trade secrets, and product security features.Businesses should verify whether their products are considered DEE and fall under the scope of these laws, what compliance measures are necessary, and if those compliance measures satisfy requirements in all applicable jurisdictions. The most challenging determination is likely whether individual products are considered covered DEE in each jurisdiction. The statutory definitions are vague, with no available precedent to help determine whether products not explicitly addressed qualify.Overall, taking a proactive approach will help businesses reduce the risk of encountering unexpected “right to repair” enforcement actions. There is still time to develop effective and cost-efficient compliance strategies before these laws go into effect. Morrison Foerster’s products liability team is ready to assist in these efforts and will provide updates as future legislation and enforcement actions develop.Julie Harrison, a summer associate in Morrison Foerster’s San Diego office, contributed to this alert.<a href="#_ftnref1" target="_self">[1] </a>A violation of the Digital Fair Repair Act is a deceptive trade practice, and “[a]ll remedies, penalties, and authority granted to the attorney general under section 8.31 are available to the attorney general to enforce this section.” Minn. Stat. § 325E.72, Subd. 4 (2023).<a href="#_ftnref2" target="_self">[2]</a> No, unless “the individual components may pose a heightened safety risk if installed improperly.” N.Y. Gen. Bus. Law § 399-nn(3)(i) (McKinney 2023).<a href="#_ftnref3" target="_self">[3]</a> The MN Act is silent on this topic. Like California’s Act, Minnesota defines “part” to include “any replacement part or assembly of parts[.]” Minn. Stat. § 325E.72, Subd. 2(p) (2023).<a href="#_ftnref4" target="_self">[4]</a> The CA Act is silent on this topic. However, the CA Assembly on Privacy and Consumer Protection’s 06/23/23 Analysis stated that “the bill’s definition of ‘part’ includes an ‘assembly of parts.’ [So] if it would be hazardous for a product owner or repairperson to handle a specific component, the manufacturer can provide the component as part of a safer-to-handle assembly.” Jesse Gabriel, SB-244 Bill Analysis, CA Assembly Committee on Privacy and Consumer Protection (June 21, 2023).<a href="#_ftnref5" target="_self">[5]</a> No, “except as necessary to provide documentation, parts, and tools on fair and reasonable terms.” Minn. Chap. Law 57 Sec. 11 Subd. 5(a) (2023).<a href="#_ftnref6" target="_self">[6]</a> No, “except as necessary to comply with this section.” S.B 244, Leg. 42488.2 (c), 2023-2024 Reg. Sess. (Cal. 2023).<a href="#_ftnref7" target="_self">[7] </a>No, “except as necessary to provide documentation, parts, and tools on fair and reasonable terms.” Minn. Chap. Law 57 Sec. 11 Subd. 5(a) (2023).<a href="#_ftnref8" target="_self">[8]</a> No, “except as necessary to comply with this section.” S.B 244, Leg. 42488.2 (c), 2023-2024 Reg. Sess. (Cal. 2023).

230825-blog-electronics-repair.jpg

Right to Repair Laws: Coming Soon to a State Near You

230825-blog-electronics-repair

Consumer products businesses should know that “right to repair” laws are here to stay. Frustrated with restrictions on repairing consumer electronics, advocacy organizations spearheaded a grassroots “right to repair” movement that is gaining traction.

Right to Repair Laws: Coming Soon to a State Near You