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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Class action claims have taken on a new twist in the wake of COVID-19. Already, the global pandemic has generated litigation across a broad swath of areas, including privacy, data security, and consumer, among others. To date, hundreds of business lawsuits related to the pandemic are pending, with dozens more filed weekly. According to the U.S. Chamber of Commerce Litigation Center, activity to date is only the “tip of the iceberg.” Per Steven Lehotsky, chief counsel for the Chamber Litigation Center, businesses can expect more “opportunistic class action lawsuits down the road.” In this alert, we provide an overview of the first wave of pandemic-related class action litigation trends and project what businesses should expect next.First wave of COVID-related class actions Privacy and data security litigation. Among the first cases filed related to the pandemic were a variety of privacy and data security related class actions. Plaintiffs focused on companies that now have a spotlight on them due to increased usage during shelter-in-place orders. Across the technology industry, a variety of online services are <a href="https://hbr.org/2016/04/blitzscaling">blitzscaling</a>—or rapidly growing—based on skyrocketing demand from consumers for food delivery, e-commerce, and virtual social connections. In California, in particular, the pandemic coincided with the California Consumer Privacy Act (CCPA) coming into force on January 1, 2020. Despite some calls to delay enforcement in light of COVID-19, California’s Attorney General plans to begin enforcing the law starting July 1, 2020 as planned. AG Xavier Bacerra’s office <a href="https://iapp.org/news/a/making-sense-of-calls-to-delay-ccpa-enforcement-amidst-covid-19/">has stated</a>, “We encourage businesses to be particularly mindful of data security in this time of emergency.”Telephone Consumer Protection Act (TCPA). TCPA cases continue to be active as COVID-19 issues have emerged. MoFo’s Class Dismissed blog recently <a href="https://classdismissed.mofo.com/tcpa/text-messaging-in-a-time-of-covid-19-fcc-guidance-on-emergency-messages-and-restrictions-on-telemarketing-in-new-york/">reviewed </a>the March 20, 2020 FCC Declaratory Ruling allowing certain calls for “emergency purposes” amidst the pandemic. That does not mean, however, that there is a blanket exemption from the TCPA’s rules governing certain calls and messages, and multiple TCPA lawsuits have been filed involving coronavirus-related communications. In a case filed in late April, the Texas Attorney General sued two parties for alleged violations of the TCPA and the Texas state law corollary. Specifically, the lawsuit alleges that a marketing service advertised health benefit plans by stating that they “include coronavirus testing and treatment.” <a href="https://www.courtlistener.com/recap/gov.uscourts.azd.1238468/gov.uscourts.azd.1238468.1.0.pdf">Another lawsuit</a>, filed by private plaintiff attorneys in Florida in March 2020, alleges that a golf course company sent text messages referencing COVID-19, stating “Stay safe in these crazy times by golfing at top 100 courses[.]”Beyond privacy, data security, and TCPA, class actions in other consumer areas have seen an uptick across the board.Health claims from shutting down too late. Multiple cases filed against cruise lines, for example, assert claims that cruise ships improperly continued operations despite allegedly knowing that passengers were showing symptoms of COVID-19.[1]Cancellation and refund claims. As businesses have been forced to shutter in response to the pandemic, plaintiffs have filed a slew of class actions alleging claims related to recurring membership charges and refunds. Multiple cases throughout the country have targeted gyms, levying causes of action for breach of contract and consumer protection laws.[2] Travel and vacation-related businesses have also been in the cross-hairs. Resorts, airlines, and vacation destinations—and even online event businesses—are facing a variety of class actions alleging claims such as unjust enrichment, fraudulent misrepresentation, conversion, and breach of contract.[3] Nor have educational institutions been spared. As schools moved classes online, lawsuits have been filed seeking reimbursement for room and board and reimbursement for the lost benefits of in-person education.[4]False advertising related to health benefits. With hundreds of millions of Americans suddenly seeking to stock up on supplies such as hand sanitizers, sellers of such products have been faced with scrutiny both from federal law enforcement officials (<a href="https://www.mofo.com/resources/insights/200416-law-enforcement-covid-19.html">covered</a> in a recent alert by MoFo’s national security and crisis group) as well as private plaintiff attorneys.[5]Insurance litigation. Insurance companies face a litany of lawsuits relating to denial of coverage for business interruption, as insurers have claimed in some instances that losses caused by COVID-19 are excluded from coverage. Plaintiffs such as restaurants, bakeries, dental practices, and others forced to shutter have filed cases. One group including several well-known restaurateurs such as Wolfgang Puck, Daniel Boulud, and Dominique Crenn, has banded together to create the Business Interruption Group (BIG), whose <a href="https://werbig.org/">website </a>promises to “bring BIG legal action in every state” against insurers.Financial services institutions. Banks across America have moved rapidly to participate in the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) Paycheck Protection Program (PPP), helping small businesses procure funding to maintain jobs during state-ordered shutdowns. Many of these institutions now face lawsuits related to eligibility and processing for PPP loans, as well as disputes over commercial loans and foreclosures. As with the TCPA, state AGs have gotten involved here, too. Arizona’s AG, for instance, in mid-March 2020 sent a <a href="https://www.azag.gov/sites/default/files/2020-03/Letter%20to%20Financial%20Institutions%20and%20Lending%20Institutions%20Serving%20Arizonans_3_19_2020.pdf">letter </a>to over 1,000 financial institutions requesting a suspension of foreclosures, repossessions, and evictions for a certain amount of time, as well as waivers for late fees and default interest for credit card account holders.Securities cases. Plaintiff attorneys have aimed their sights at securities litigation as well—bringing cases against companies whose stock prices have fallen alongside broader market volatility. Theories range from false and misleading statements minimizing the pandemic’s impact on a company’s business, to alleged false claims based on developments of treatments or vaccines.[6] MoFo’s Coronavirus Task Force has been following <a href="https://www.mofo.com/resources/insights/200505-us-sec-staff-issues.html">recent U.S. Securities and Exchange Commission guidance</a> for companies in this area.Policy advocacy in the wake of COVID-19 litigationAs the first wave of pandemic-related cases works its way through the pleading stages of litigation, advocates are simultaneously working to influence litigation policy as well.These efforts have already resulted in various liability limitations at multiple levels of government. At the federal level, the CARES Act contains certain liability protections for respirator manufacturers that have had to ramp up research, development, and distribution efforts. The U.S. Department of Health and Human Services has also provided guidance on tort liability immunity granted under the Public Readiness and Emergency Preparedness Act (the “PREP Act”), as <a href="https://classdismissed.mofo.com/fda/hhs-guidance-broadens-prep-act-immunity-tightens-focus-on-public-private-cooperation/">discussed </a>by our colleagues in MoFo’s Class Dismissed blog. Many states too have instituted liability protections for certain healthcare industries and medical facilities.[7]Others, meanwhile, have attempted to leverage the pandemic to advance policy goals related to challenging pre-dispute arbitration agreements. As documented by the Institute for Legal Reform, early drafts of COVID-19 relief bills in the U.S. House and Senate, as a result, contained provisions aimed at invalidating arbitration clauses in disputes about business loans and employee sick leave, among other topics.Wave two: What to expect from the next set of COVID-19 related lawsuits Wave one of pandemic class action litigation has crashed ashore. The next wave may not be far behind. In the privacy and data security arena, we expect to see more cases. The FBI, DOJ, and international law enforcement agencies have warned of unprecedented criminal hacking activity in the wake of the pandemic. There have been reports that attackers have successfully lurked in a company’s infrastructure before discovery, sometimes for weeks or even months. Given this, the ongoing surge in COVID-19 related hacking activity is likely to result in publicly revealed data breaches in the coming months. Such breaches may trigger class actions under the CCPA’s private right of action, discussed <a href="https://www.cpomagazine.com/data-protection/anticipating-ccpa-litigation-in-2020-steps-to-take-now/">here</a>, among other state data breach and notice statutes.Other privacy lawsuits will stem from implementation of biometric track and trace technology. Illinois’ biometric privacy statute, the Biometric Information Privacy Act (BIPA)—already a source of frequent litigation—will continue to be the focus of new class actions. Similar statutes, some creating even greater exposure, are being contemplated in states such as <a href="https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB1215&201+sum+HB1215">Virginia</a>. To facilitate virus response and containment, organizations will look towards pooling data and leveraging anonymized datasets to perform epidemiological studies. Given advancements in de-anonymization and disaggregation technologies, this may lead to the filing of creative and new privacy claims.Just as a series of class actions arose from pandemic-related shutdowns, so too will lawsuits come as communities begin to re-open towards a new normal. Litigation around compliance with government guidelines, negligence causes of action related to safety measures, lawsuits around COVID-19 treatments, newly developed personal protective equipment and other products, and claims around social distancing implementation appear to be on the horizon. As noted above, lawmakers and regulators are keenly aware of such litigation risk and may attempt to support reopening by crafting or expanding safe harbors.How should businesses shore up in the face of the COVID-19 class action litigation wave? Morrison & Foerster’s Class Action + Mass Torts Group and Coronavirus Task Force have advised and represented many clients on emerging claims related to COVID-19. MoFo’s Litigation team routinely helps companies prepare for and respond to litigation risks including matters involving the CCPA, TCPA, BIPA, and other consumer causes of action that are being explored in this new pandemic environment. To stay a step ahead, our team has been analyzing newly filed lawsuits as well as COVID-19 publications and trends. For new products, incorporating risk analysis up front in the design process is vital. Particularly around issues of privacy and data security, organizations should be mindful of notice, consent, and other statutory and regulatory issues—especially in the areas of biometrics and data analytics. As always, organizations will benefit from strong contracts, clear representations in public facing policies, and careful consideration as to pre-dispute arbitration clauses. More time at home has not slowed down the pursuit of class action lawsuits or the need for thoughtful compliance practices.[1] See, e.g., Turner v. Costa Crociere SPA, No. 20-cv-21481 (S.D. Fla. Apr. 7, 2020); Archer v. Carnival Corporation, et al., No. 20-cv-02381 (N.D. Cal. Apr. 8, 2020).[2] See, e.g., Namorato v. New York Sports Clubs, No. 20-cv-02580 (S.D.N.Y. Mar. 26, 2020); Barnett v. Fitness International, LLC, No. 0:20-cv-60658 (S.D. Fla. Mar. 30, 2020); Delvecchio v. Boston Sports Clubs, No. 20-cv-10666 (D. Mass. Apr. 5, 2020).[3] See, e.g., McMillan v. StubHub, No. 20-cv-00319 (W.D. Wis. Apr. 2, 2020); Rutledge v. Do LaB Inc. (Cal. Super. Ct. Mar. 24, 2020); Ruiz v. Magic Mountain LLC, et al., No. 2:20-cv-03436 (C.D. Cal. Apr. 13, 2020); Carisi v. Events and Adventures California, No. 3:20-cv-02260 (N.D. Cal. Apr. 2, 2020).[4] See, e.g., Rosenkrantz, et al. v. Arizona Board of Regents, 2:20-cv-00613 (D. Ariz.); Rickenbaker, et al. v. Drexel University, 2:20-cv-01358 (D. S.C.); Student A, et al. v. Liberty University, 6:20-cv-00023 (W.D. Va.); Church, et al. v. Purdue University, et al., 4:20-cv-00025 (N.D. Ind.); Dixon, et al. v. University of Miami, 2:20-cv-01348 (D. S.C.).[5] See, e.g., David v. Vi-Jon, Inc. dba Germ-X, No. 20-cv-99999 (S.D. Cal. Mar. 5, 2020); Gonzalez v. Gojo Indus., Inc., No. 1:20-cv-888 (S.D.N.Y. Feb. 1, 2020).[6] Douglas v. Norwegian Cruise Lines, No. 20-cv-21107 (S.D. Fla. Mar. 12, 2020); Atachbarian v. Norwegian Cruise Lines et al., No. 1:20-cv-21386 (S.D. Fla. Mar 31, 2020); McDermid v. Inovio Pharmaceuticals, Inc., No. 20-cv-01402 (E.D. Pa. Mar. 12, 2020).[7] Arizona Executive Order No. 2020-27 (Mar. 11, 2020); Arkansas Executive Order No. 18 (Apr. 14, 2020); Connecticut Executive Order No. 7V (Apr. 7, 2020); Georgia Executive Order No. 04.14.20.01 (Apr. 14, 2020); Illinois Executive Order No. 19 (Apr. 1, 2020); Indiana Executive Order No. 13 (Mar. 6, 2020); Michigan Executive Order No. 30 (2020); New Jersey Executive Order No. 112 (Apr. 1, 2020); New York Executive Order No. 202.10 (Mar. 23, 2020); North Carolina Executive Order No. 130 (Apr. 8, 2020).

CCPA and Data Breach Class Action for Leading Software Company

BIPA Class Action Against Gaming and Hospitality Company

TCPA and Other Class Actions for Major Technology Company

Data Breach Class Action for Technology Company

Wiretap Act action against a Major Consumer Electronics Manufacturer

TCPA Class Action Against National Chain

In re Pharmaceutical Industry Average Wholesale Price Litigation

In re Verizon Wireless Data Charges Litigation

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Clients seek out Tiffany for her successful track record in defending class action claims on behalf of clients in a broad range of industries, including technology, healthcare, and consumer product companies. She represents numerous Fortune 500 companies in high-stakes litigation involving privacy and marketing claims in courts throughout the United States.

Tiffany Cheung

Clients seek out Tiffany for her successful track record in defending class action claims on behalf of clients in a broad range of industries, including technology, healthcare, and consumer product companies. She represents numerous Fortune 500 companies in high-stakes litigation involving privacy and marketing claims in courts throughout the United States.

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Class Action Litigation in the Wake of COVID-19

Using Waivers to Curb COVID-19 Legal Exposure

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Class action claims have taken on a new twist in the wake of COVID-19. Already, the global pandemic has generated litigation across a broad swath of areas, incl

Class Action Litigation in the Wake of COVID-19

The Consumer Product Safety Commission (CPSC) announced today that on May 16, 2018, it will hold a public hearing on “potential safety issues and hazards associated with internet-connected consumer products.”<a href="#_ftn1" name="_ftnref1">[1]</a>  The Commission will hear testimony from interested stakeholders on potential safety hazards created by network-connected devices, the types of hazards arising from their use or foreseeable misuse, current standards development, industry best practices, and the proper role of CPSC in addressing potential safety hazards with IoT devices.CPSC’s goal with this hearing is to gather information from regulators, standards organizations, and business and consumer advocates, to “inform future Commission risk management work.” How CPSC interprets the information received at this hearing could significantly shape the predictably unpredictable regulatory environment that IoT-focused consumer companies are asked to navigate.Regulatory Scrutiny Follows the IoT Explosion CPSC’s intensified focus on the Internet of Things (IoT) is no surprise to industry followers given the recent explosion of IoT devices in the consumer products space. And companies can expect the focus to continue because the IoT train isn’t slowing down.  By some estimates, the global IoT market is projected in the next five years to grow from roughly $170 billion to $561 billion—a compound growth rate of 26.9%.<a href="#_ftn2" name="_ftnref2">[2]</a>CPSC’s Focus Will Be on IoT Devices’ Potential Physical HazardsWhile recognizing this trend and its “promise of many benefits for consumers,” CPSC is still cautious about the ways “internet connectivity is also capable of introducing a potential for harm (a hazard) where none existed before.” Still, CPSC’s focus remains where it has always been: on product hazards that cause physical injury or property damage, including “[f]ire, burn, shock, tripping or falling, laceration, contusion, and chemical exposure.”As a framework for analyzing IoT-related risks, CPSC has grouped product safety challenges posed by IoT products into two broad categories:<ol><li>Hazards Inherent in the Product Design. These hazards specifically include the “high-risk remote operation” of devices or network-enabled control of product features. One example is a “cooktop that might be remotely controlled” and could start a fire.</li><li>Hazards Arising Post-Connection.  CPSC calls these “incidents of hazardization,” meaning situations in which the product was safe when the consumer obtained it, but later became hazardous when “connected to a network through malicious, incorrect, or careless changes to operational code.”  One example is a “robotic vacuum cleaner that suddenly begins operating much faster than expected” upon connection to the network or after experiencing a network interference. Another would be the loss of a safety function due to a glitch in the network connection. For example, an integrated home security system could be set by default to deactivate if the system failed to download a software update properly, disabling the smoke alarms without the consumer’s knowledge. CPSC acknowledges that managing these kinds of hazards “may lead industry and regulators to examine policies related to code encryption and security, authorized access to programming, and defensive measures (and countermeasures) for device software.” But CPSC is quick to emphasize that “[t]his is a non-traditional area of product safety activity for the consumer product industry and for the CPSC.”</li></ol>Data Security and Privacy Issues Won’t Be Considered (Yet)Although hot-button privacy and data security risks unique to IoT devices are at the forefront of public debate, CPSC plans to steer clear of these issues at its upcoming hearing. As we pointed out in the wake of the Google Home Mini privacy glitch revelation, privacy groups have recently called on CPSC to scoop up data security and privacy issues into its jurisdiction, which has traditionally focused only on physical injury and property damage.<a href="#_ftn3" name="_ftnref3">[3]</a>  Today’s notice suggests those calls will go unanswered—at least in the short run.  CPSC reiterated that the agency will stick to its traditional wheelhouse of physical safety hazards and “will not address personal data security or privacy implications of IoT devices.”Although CPSC has declined to address these privacy issues now, it is acutely aware of these risks. As the IoT industry grows and new information about IoT-related product risks comes to light, we may yet see CPSC chart new jurisdictional territory in its quest to preserve consumer safety.Hearing Details<ul><li>Date/Time: May 16, 2018, 10:00 a.m.</li><li>Place: Hearing Room, 4th Floor of the Bethesda Towers Building, 4330 East-West Highway, Bethesda, MD 20814</li><li>Simultaneous Webcast: The hearing will also be available through a webcast, but viewers will not be able to interact with the panels and presenters through the webcast.</li><li>Oral Presentations: Requests to make oral presentations and the written text of any oral presentations must be received by the Office of the Secretary no later than 5:00 pm on May 2, 2018.</li><li>Written Comments: Written comments may be submitted (identified by Docket No. CPSC-2018-0007) <ul><li>Electronically – through the Federal eRulemaking Portal at <a href="http://www.regulations.gov/">www.regulations.gov</a>, or</li><li>By Mail/Hand Delivery/Courier – to the Office of the Secretary, Consumer Product Safety Commission, Room 820, 4330 East-West Highway, Bethesda, MD 20814; telephone (301) 504-7923. CPSC will accept written comments through June 15, 2018.</li></ul></li></ul><a href="#_ftnref1" name="_ftn1">[1]</a> The Internet of Things and Consumer Product Hazards, 83 Fed. Reg. 13,122 (March 27, 2018), available at <a href="https://www.federalregister.gov/documents/2018/03/27/2018-06067/the-internet-of-things-and-consumer-product-hazards">https://www.federalregister.gov/documents/2018/03/27/2018-06067/the-internet-of-things-and-consumer-product-hazards</a>.<a href="#_ftnref2" name="_ftn2">[2]</a> See <a href="https://www.reportlinker.com/p03782621/Internet-of-Things-Market-by-Software-Solution-Platform-Service-Application-Domain-and-Region-Global-Forecast-to.html">https://www.reportlinker.com/p03782621/Internet-of-Things-Market-by-Software-Solution-Platform-Service-Application-Domain-and-Region-Global-Forecast-to.html</a>.<a href="#_ftnref3" name="_ftn3">[3]</a> Erin Bosman, Julie Park, and Benjamin Kagel, Connected Devices Bring New Product Liability Challenges, Class Dismissed (Jan. 10, 2018),  <a href="https://classdismissed.mofo.com/consumer-products/connected-devices-bring-new-product-liability-challenges/">https://classdismissed.mofo.com/consumer-products/connected-devices-bring-new-product-liability-challenges/</a>.

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

Fitbit

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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CPSC Will Sharpen Its Focus on IoT in Upcoming Public Hearing About Internet-Connected Devices

CPSC Will Sharpen Its Focus on IoT in Upcoming Public Hearing About Internet-Connected Devices

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The Consumer Product Safety Commission (CPSC) announced today that on May 16, 2018, it will hold a public hearing on “potential safety issues and hazards associ

“My Google Home Mini was inadvertently spying on me 24/7 due to a hardware flaw,” wrote a tech blogger who purchased Google Inc.’s latest internet of things (IoT) device. Following the incident, a pact of consumer advocacy groups insisted the U.S. Consumer Product Safety Commission recall the Google smart speaker due to privacy concerns arising when the device recorded all audio without voice command prompts.The CPSC is charged with protecting consumers from products that pose potential hazards. Traditionally, this has meant hazards that may cause physical injury or property damage. But as internet-connected household products continue to proliferate, issues like the “always-on” Google Home Mini raise an important question: Where does cybersecurity of consumer IoT devices fit within the current legal framework governing consumer products?Please see our full article as published on <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blta6b29dc043b75540/6273154ea1a1dd2aa9f6c96e/180105-connected-devices-liability-changes.pdf" target="_blank" rel="noopener">Law360</a>.

Fertility Center Litigation

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

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Connected Devices Bring New Product Liability Challenges

New California IoT Law Requires Security for Connected Devices

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“My Google Home Mini was inadvertently spying on me 24/7 due to a hardware flaw,” wrote a tech blogger who purchased Google Inc.’s latest internet of things (Io

Connected Devices Bring New Product Liability Challenges

One year ago, the federal government test drove its first set of self-driving policies with a four-part <a href="https://www.transportation.gov/AV-factsheet" target="_blank" rel="noopener">announcement </a>from the U.S. Department of Transportation. In twelve months, much has changed, but the wheels are still turning.The U.S. House of Representatives earlier this month passed the bipartisan Safely Ensuring Lives Future Development and Research in Vehicle Evolution (SELF DRIVE) Act. The SELF DRIVE Act continues the work of clarifying state and federal government roles as well as the federal government’s responsibilities with regard to safety, cybersecurity, privacy, and consumer education.Although SELF DRIVE has now launched, the engine is still heating up: The U.S. Senate is still developing its approach to federal policy in this space. Last week, the U.S. Senate held a hearing to this end, inviting experts on self-driving trucks to <a href="https://www.commerce.senate.gov/public/index.cfm/pressreleases?ID=BAC7FBCE-424B-4C61-8082-71B3E3D9333B" target="_blank" rel="noopener">testify </a>before its Commerce Committee. This latest action built on a set of bipartisan “principles” for <a href="https://www.commerce.senate.gov/public/index.cfm/pressreleases?ID=3319E728-1F3A-4316-8F7E-8CAF66000F8C" target="_blank" rel="noopener">legislation </a>that the U.S. Senate had released in June.The Executive Branch has also announced a change to its approach. Specifically, U.S. Department of Transportation Secretary Chao unveiled <a href="https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/13069a-ads2.0_090617_v9a_tag.pdf" target="_blank" rel="noopener">“A Vision for Safety: 2.0” i</a>n Michigan <a href="https://www.transportation.gov/briefing-room/av-summit" target="_blank" rel="noopener">last week. </a>As Secretary Chao noted, this “replaces the Federal Automated Vehicle Policy Version 1.0” released last year, but it is not the Department’s final word: “DOT and NHTSA are already planning for Version 3.0 in 2018!”In short, for federal self-driving policy, the wheels are still turning – and the regulatory landscape will most certainly continue to evolve over the coming weeks and months.

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Wheels Are Turning on Federal Self-Driving Policy

Wheels Are Turning on Federal Self-Driving Policy

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One year ago, the federal government test drove its first set of self-driving policies with a four-part announcement from the U.S. Department of Transportation.

In response to a provision in the Bipartisan Budget Act of 2015 (Pub. L. No. 114-74), the Federal Communications Commission (FCC or the “Commission”) has promulgated <a href="https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-57A1.pdf" target="_blank">a notice of proposed rulemaking</a> (NPRM) regarding the new exemption in the Telephone Consumer Protection Act (TCPA) for calls made “to collect a debt owed to or guaranteed by the United States.”  47 U.S. Code § 227(b)(1)(A)(iii), (b)(1)(B). The proposed language of the rule would track the statutory language.  The FCC’s analysis in the NPRM, however, suggests that the Commission intends to interpret this exception narrowly, and will impose significant restrictions on calls covered by these provisions. In particular:<ul><li>The FCC suggests that a call “solely to collect a debt” means “only those calls made to obtain payment after the borrower is delinquent on a payment.”  (¶ 8).</li><li>While the FCC proposes that debt servicing calls would be covered, and would include calls made by the creditor and entities acting on behalf of the creditor, the NPRM also proposes restrictions on covered calls—meaning that coverage under this exemption could be a double-edged sword.  (¶¶ 9, 10)  And, only creditors and those calling on their behalf could make calls based on this exemption.  (¶ 15)</li><li>Permissible calls would be “only to the person or persons obligated to pay the debt because it appears impossible that calls to non-debtors by their nature would directly result in collection from the debtor.”  (¶ 13)  Furthermore, the FCC proposes to import the one-call “safe harbor” for a reassigned number from the FCC’s 2015 Omnibus Declaratory Ruling.  In other words, if a wireless number that a debtor provides to a creditor is reassigned, then calls to that number are not exempt, and after one such call the caller will be deemed to have constructive knowledge that “consent” to call that number has been withdrawn.  (¶ 14)</li><li>The FCC proposes to limit the number of covered (i.e., exempt) calls to three initiated calls to a wireless number per month—including calls that may not be answered by a person.  The NPRM reasons that three calls per month “affords callers an opportunity to obtain the debtor’s consent to make additional calls beyond” any adopted limit.  (¶ 18) This would apply to robocalls to wireless numbers, including calls that attempt to connect the called debtor to a live agent.  But the FCC also suggests that it may extend this restriction to calls to residential lines “even though such calls would not have required prior express consent even before” the TCPA was amended.  (¶ 23)</li><li>The FCC also seeks comment on “the maximum duration of a voice call,” whether there should be a limit on the length of covered text messages (¶ 18), and whether there should be a limit on the hours during which such a call could be made (¶ 19).  The NPRM suggests that the limit could be governed by the local time at the called party’s location, which could create a compliance challenge given that individuals may take their cell phones to different time zones.</li><li>The NPRM also proposes that “consumers should have a right to stop [covered calls] at any point the consumer wishes.”  (¶ 20)</li></ul>Commissioner O’Reilly issued a strong partial dissent (approving solely to initiate the rulemaking required by Congress).  He noted in particular that:<ul><li>The proposed limit on the number of calls initiated per month would be inconsistent with other federal requirements to make calls in connection with a delinquency;</li><li>The one-call safe harbor for reassigned numbers is inconsistent with the statutory exemption from the consent requirement for covered calls; and</li><li>The FCC has inappropriately limited covered calls to those pertaining to delinquency or default, while the statute refers only to calls “to collect a debt.”</li></ul>Finally, both Commissioner O’Reilly and Commissioner Pai (who dissented on the ground that federal debt collectors should not be afforded special treatment) criticized the proposed rules because manually dialed calls from equipment that could function as an autodialer in the future might be considered autodialed calls.Comments on the NPRM are due on June 6, 2016.

FCC issues NPRM on TCPA Exemption for U.S. Government Debt

In response to a provision in the Bipartisan Budget Act of 2015 (Pub. L. No. 114-74), the Federal Communications Commission (FCC or the “Commission”) has promul

FCC issues NPRM on TCPA Exemption for U.S. Government Debt

On February 2, 2016, the FTC settled claims against Sale Slash LLC regarding the marketing of its weight loss pills, including Premium Green Coffee, Pure Garcinia Cambogia, Premium White Kidney Bean Extract, Pure Forskolin Extract, and Pure Caralluma Fimbriata Extract. FTC v. Sale Slash, Case No. CV15-03107 PA (AJWx). The FTC alleged that Sale Slash misrepresented the effectiveness of its “bogus” weight loss pills, improperly used spam emails, and used fake celebrity endorsements to market its products.As part of the stipulation for a permanent injunction and monetary penalties, Sale Slash agreed to pay $43 million in equitable monetary relief to settle the claims. In addition, the stipulation bars Sale Slash from (1) sending emails that fail to identify the sender, that include misleading subject headings, and/or that lack a proper opt-out option for recipients; (2) using fake celebrity endorsements; and (3) making weight loss or health-related claims unless Sale Slash can substantiate the claims with competent and reliable scientific evidence.