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

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

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).

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

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.

vetesi_claudia_blog_150x150.png

vetesi_claudia_common_640x280.jpg

vetesi_claudia_heroretina_2700x1160.jpg

vetesi_claudia_mobileretina_750x1040.jpg

vetesi_claudia_social_600x600.jpg

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.

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

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.

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

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

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

The Ninth Circuit gets more requests to appeal class-certification decisions under Rule 23(f) than any other court.  How do those requests fare?  We take a look

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

How Do Rule 23(F) Petitions Fare In The Ninth Circuit?

How Do Rule 23(F) Petitions Fare In The Ninth Circuit? | Class Dismissed

Joseph R. Palmore

The Ninth Circuit gets more requests to appeal class-certification decisions under Rule 23(f) than any other court.  How do those requests fare?  We take a look below, drawing from <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3589733">this invaluable nationwide study</a> by Professor Bryan Lammon.BackgroundFederal Rule of Civil Procedure 23(f) provides a way to immediately appeal orders granting or denying class certification.  These interlocutory orders ordinarily would be appealable only after final judgment.  But Rule 23(f) was added in 1998 because the class-certification decision is often a make-or-break moment.  If the class is certified, the defendant feels overwhelming pressure to settle; if not, the plaintiff might drop the case.  By allowing appeal before those pressures kick in, Rule 23(f) creates a chance to correct errors in these high-stakes decisions and to develop the law.A Rule 23(f) appeal, however, is not automatic.  A party must file a petition for permission to appeal, and the court of appeals has discretion over whether to grant it.  To make that decision, the Ninth Circuit looks for:  (1) a “death-knell situation” coupled with a “questionable” decision, (2) “an unsettled and fundamental issue” of class-action law important to the litigation and likely to evade end-of-case review, or (3) manifest error.  Chamberlan v. Ford Motor Co., 402 F.3d 952, 959 (9th Cir. 2005).In the Ninth Circuit, Rule 23(f) petitions go to the motions panel, which rotates monthly.  Just two judges decide the petitions (unless they call in a third judge, for example if the first two disagree).  The motions panel typically issues only a brief order without reasoning; if the petition is granted, the case then goes to a merits panel for full briefing, argument, and decision.A look at the Ninth Circuit’s Rule 23(f) docket Despite their high stakes for the parties, Rule 23(f) petitions get little fanfare sitting on the motions panel’s docket.  We’d like to shed some light on that docket.  Our data below come from Prof. Lammon’s analysis of all Rule 23(f) petitions filed from 2013 through 2017, plus our own research on Ninth Circuit petitions filed from 2018 through 2021.Volume:  The Ninth Circuit gets a ton of Rule 23(f) petitions.  The Ninth Circuit decides far more Rule 23(f) petitions than any other circuit—unsurprising given its size.  In Prof. Lammon’s 2013-2017 data, the Ninth Circuit got over 50 petitions a year, while the next closest courts (the Second and Seventh Circuits) each got fewer than 20 annually.  And the Ninth Circuit’s pace hasn’t dropped: from 2018 to 2021, the court saw an average of about 60 petitions per year. Rule 23(f) outcomes:  It’s tough to seek Rule 23(f) appeal in the Ninth Circuit, especially as a defendant.  The Ninth Circuit is one of the stingiest courts in the country when it comes to permission to appeal under Rule 23(f).  Prof. Lammon found the Ninth Circuit granted only 18% of Rule 23(f) petitions from 2013 to 2017—lower than any other circuit but one (the D.C. Circuit, which decided only 7 petitions in that period).  We found the Ninth Circuit had a similarly low grant rate from 2018 to 2021, about 20%.  And that rate was only 10% for petitions filed last year (2021).  Prof. Lammon found a statistically significant gap between the Ninth Circuit and the most generous Rule 23(f) court (the Fifth Circuit, with a grant rate of 50%).It’s especially tough to be a defendant filing a Rule 23(f) petition in the Ninth Circuit.  On the surface of Prof. Lammon’s data, Ninth Circuit plaintiffs and defendants seemingly had similar success—19% and 17% of petitions granted, respectively.  What is noteworthy about that parity, however, is that nationally defendants seeking Rule 23(f) review do better than plaintiffs. So while the Ninth Circuit’s 19% grant rate for plaintiffs was in line with the national plaintiffs’ average of 21%, the Ninth Circuit defendants’ rate (17%) was quite a bit below the national defendants’ average of 27%.  And even the surface-level parity in Prof. Lammon’s data has disappeared in recent years—we found from 2018 to 2021 that Ninth Circuit plaintiffs had a whopping 29% grant rate, while defendants sat at a measly 13%.  (That recent disparity, though, was biggest in 2018-2019 and lessened in 2020-2021.)  As Prof. Lammon explains, these figures come with caveats, and he found little statistically significant evidence of courts treating plaintiffs and defendants differently.  But to the extent there is a difference in the Ninth Circuit, it appears to disfavor defendants. Merits outcomes:  In the Ninth Circuit, reversal of class-certification decisions is relatively rare.  Once Rule 23(f) appeal is granted, courts of appeals nationwide reverse the district court roughly half the time (54% for 2013-2017 petitions).  But the Ninth Circuit reverses less often:  37% for 2013-2017 petitions, and 44% for 2018-2021 petitions.  These reversal rates, Prof. Lammon found, do not differ significantly depending on which party is appealing.  The Ninth Circuit’s low 23(f) grant rate, combined with its low reversal rate, means that only a few lucky petitioners achieve their ultimate goal—reversal of a class certification grant or denial.Timing:  The Ninth Circuit generally decides Rule 23(f) petitions in 3 months.  We found the Ninth Circuit decides Rule 23(f) petitions in about 85 days on average—in line with the national average according to Prof. Lammon’s data.  But there’s a lot of variation behind that average.  Many petitions were decided more quickly—over 30% of the petitions we saw were decided within 60 days, and over 60% within 90 days—but some took much longer, with 17% taking longer than 120 days.The timing is roughly similar whether the petition is granted or not.  Grants took slightly longer—90 days on average, compared to 83 days for denied petitions—but it’s unclear whether that’s a meaningful difference.Amicus participation:  Petition-stage amici are rare.Amici weighed in on Rule 23(f) petitions in only 4% of the Ninth Circuit cases we looked at.  That’s not surprising, as the deadlines for these petitions are so tight, there’s not much time for amici to get involved (14 days to file the petition and 10 days to file the response). When amici did participate at the Rule 23(f) stage in the cases we saw, the petition was granted four times as often.  But it’s impossible to draw firm conclusions from that.  Not only is our data set small, but we can’t tell which of those petitions would have been granted even without amicus participation.  After all, if a petition was strong enough to grab amici’s attention, it might have been strong enough on its own to grab the court’s attention as well.  On the other hand, the presence of an amicus brief does signal to the court that the issue presented by petitioner is of interest to other parties.The bottom lineRule 23(f) petitions are a valuable tool for disappointed litigants to get appellate review and for courts to develop class-action law.  And they are popular in the Ninth Circuit, which has more Rule 23(f) activity than any other court.  But the Ninth Circuit uses its Rule 23(f) power relatively sparingly, granting review less often and—even when it does grant review—affirming the district court more often.