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

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Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

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

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Senior Counsel

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

Penelope A. Preovolos

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class action lawsuits. Claudia also regularly counsels clients in the food, cosmetics, retail, and technology industries. She represents companies in false advertising disputes before the National Advertising Division (NAD) of the Council of Better Business Bureaus, Inc.<h5>More about Claudia</h5>Claudia is active in MoFo’s pro bono efforts, and recently traveled to El Paso, Texas, to work with families separated and detained at the border. She is also supervising a pro bono collaboration with Equal Rights Advocates, a nonprofit fighting for gender justice in work places and schools across the country. The initiative will help students who have been victims of sexual assault, attempted assault, or harassment find support and seek justice. Claudia is also a board member of Bay Area Legal Aid and a former board member of Equal Rights Advocates. Claudia is an editor and frequent contributor to MoFo’s <a href="https://classdismissed.mofo.com/">Class Dismissed</a> blog, which provides reports about the latest defense news, developments, and trends in class action lawsuits and product liability issues that affect consumer-facing companies. Her perspectives are also respected in the larger legal community: Claudia has published articles about class action and false advertising issues, and is a co-author of Chapter 7 — “Unfair Competition in California Business Litigation 2016” — of The Recorder. She also regularly speaks at conferences on class action and advertising trends. Claudia is currently serving as a Lawyer Representative for the Northern District of California. She received her J.D. degree in 2004 from Berkeley Law (Boalt Hall School of Law), where she was an associate editor of the Berkeley Technology Law Journal.

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Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class actions.

Claudia M. Vetesi

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

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

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

Alexandra Barlow

Adam J. Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.Mr. Hunt has extensive experience representing consumer products companies, financial institutions, and technology firms in class action cases and complex commercial disputes before state and federal trial courts, as well as in arbitrations. Clients seek Mr. Hunt’s counsel for his creative, strategic thinking in high-stakes, high-profile matters. He has represented clients facing claims under false advertising, antitrust, and privacy laws throughout the country, securing wins at the pleading stage, summary judgment, and trial, in addition to negotiating favorable settlements, often early in the case. Representative experience includes successfully securing rulings dismissing two putative false advertising class action cases against one of the best-known consumer electronics companies in the world; obtaining a complete win on summary judgment for a major shipping and logistics company in a multimillion-dollar commercial dispute; appearing as counsel at trial for a leading financial institution in a $100 million commercial dispute, winning a bench trial verdict; and prevailing on motions to dismiss false advertising class actions against a leading Greek yogurt company.Mr. Hunt is also an editor of the firm’s <a href="https://classdismissed.mofo.com/" target="_self">Class Dismissed blog</a>, which provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class action lawsuits that affect consumer-facing companies.Mr. Hunt maintains an active pro bono practice and is the recipient of the New York State Bar Association’s 2017 President’s Pro Bono Service Award for the First Judicial Department, the 2018 Public Service Award from New York University School of Law, and Morrison Foerster’s Kathi Pugh Award for Pro Bono Services.Mr. Hunt received his B.A. with honors from Swarthmore College and his J.D. cum laude from New York University.

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

Adam Hunt

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While it rarely rules on questions of preemption, the Ninth Circuit took an even rarer step on July 1, 2024 when it took up the question of whether private parties can seek to enforce the provisions of California’s Sherman Law that parallel federal law.

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Passing on Preemption: Ninth Circuit Holds That California’s Sherman Law Is Not Impliedly Preempted | Class Dismissed

Lena Gankin

Mamie Tabet

While it rarely rules on questions of preemption, the Ninth Circuit took an even rarer step on July 1, 2024 when it took up the question of whether private parties can seek to enforce the provisions of California’s Sherman Law that parallel federal law.Plaintiffs brought suit against Sprout Foods, Inc. (“Sprout”), a manufacturer of baby food, arguing that the labels on the baby food were deceptive and unlawful because they made statements regarding the nutritional content of the baby food, like “3g of Protein” and “5g of Fiber.” Plaintiffs alleged that Sprout’s baby food products were mislabeled under the “unlawful” prong of California’s Unfair Competition Law (UCL) because they were mislabeled under California’s Sherman Law.  Plaintiffs asserted that FDA regulations prohibit certain nutrient content claims on foods intended for children under the age of two and argued that Sprout’s products therefore violated those regulations and the identical provisions of California’s Sherman Law.  Sprout argued that Plaintiffs’ UCL “unlawful” prong claim was impliedly preempted because a violation of the Sherman Law requires a finding that the FDCA has been violated, and the FDCA, in turn, can be enforced only by the United States.  The lower court agreed with Sprout on the issue of preemption, holding that because a violation of the Sherman Law requires a finding that the FDCA has been violated, and the FDCA can be enforced only by the United States, Plaintiffs’ claims were preempted insofar as they originated from, were governed by, and terminated according to federal law.Prior to the Ninth Circuit’s decision, litigants frequently battled over whether lawsuits alleging a violation of the FDCA, but brought under state consumer protection laws, were impliedly preempted.  Federal law preempts state law when Congress has expressly stated or impliedly intended its purpose to do so.  Under the Supreme Court’s holding in Buckman Co. v. Plaintiffs’ Legal Committee, a state law can be preempted in two instances: (1) a plaintiff may not impose food label requirements under state law that are different from those imposed under the FDCA and its regulations, and (2) a plaintiff cannot privately enforce the FDCA.[1]  Accordingly, private claims that “exist solely by virtue of the FDCA,” or where the claim would not exist but for the alleged violation of the FDCA, are impliedly preempted.[2]  In recent years, Plaintiffs in consumer class actions targeting food labeling have argued that even though their claims are based on an underlying violation of the FDCA, their claims are not impliedly preempted.Ninth Circuit Clarifies PreemptionIn reversing the district court’s holding that enforcement of state standards is impliedly preempted by federal law, the Ninth Circuit, in an opinion written by Judge Schroeder, reasoned that federal law contemplated the ability of states, like California, to enact their own parallel laws permitting private rights of action.  The Ninth Circuit held that the critical distinction between Davidson and Buckman was that, in Buckman, Plaintiffs attempted to use state causes of action to obtain damages for violations owed under the FDCA, but in Davidson, Plaintiffs claimed violations of California’s Sherman Law (which runs parallel to the federal FDCA and whose standards are identical to the federal FDCA).[3]  In other words, because Plaintiffs’ UCL “unlawful” prong claim was premised on a violation of California’s Sherman Law, which was identical to the FDCA, Plaintiffs’ claims were not preempted.  The Ninth Circuit reasoned that Congress did not intend for state standards, like those under California’s Sherman Law, to be impliedly preempted and thus permitted states to adopt them: “there is no reason we can perceive why Congress would permit states to enact particular legislation and then deny enforcement by their citizens. . .  Federal law does not support such a strange result.”[4]Furthermore, the Ninth Circuit reasoned that even if it had doubts regarding the interaction between FDA regulations and California’s Sherman Law as applied through the UCL, it would still reverse the lower court’s holding because of the Ninth Circuit’s longstanding presumption against preemption. The Ninth Circuit reiterated that even if Sprout’s interpretation of preemption were equally plausible to that of Plaintiffs, the Court would be bound to ultimately hold that the FDCA does not impliedly preempt private enforcement of the Sherman Law and allow the case to proceed.Judge Collins DissentsJudge Collins dissented from the Ninth Circuit’s preemption holding, writing that a private claim based on state law that simply copies the FDCA’s requirements and has no independent substantive content is impliedly preempted.  Judge Collins distinguished between cases where plaintiffs sought to impose state-law standards with independent content, and state law standards that merely “parasitically cop[y]” the federal standard.[5]  State law standards with independent content were not impliedly preempted, but standards that merely copied the federal standard (as does the Sherman Law) were impliedly preempted.[6]Moreover, Judge Collins reasoned that the Sherman Law may have been intended to provide a right of action for state authorities to bring claims premised on federal regulations, not necessarily to grant private citizens a right of action.  The FDCA prohibits private enforcement of federal law, instead giving that authority to the federal government.[7]  By “permitting” states to enact statutes that mirror the FDCA, it would not be “strange” for the federal government to also limit the enforcement of state laws to state actors.[8]  Judge Collins further noted that enforcement by state authorities would allow for additional remedies provided by state courts that are not afforded by the FDCA, such as monetary damages.TakeawaysThe Ninth Circuit’s holding in Davidson clarifies the outer bounds of implied preemption in cases in which plaintiffs seek to leverage highly technical federal regulations in litigation through California’s Sherman Law and the “unlawful” prong of the UCL.  Notably, Davidson is the first case to reach the Ninth Circuit on implied preemption, California’s Sherman Law, and food labels.  Accordingly, the legal landscape is likely to continue to evolve as courts grapple with Davidson’s application.  Morrison Foerster will continue to monitor the impact of this ruling and is available to provide legal guidance to clients on the ramifications of this decision.<hr class="divider">[1] Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 353 (2001); 21 U.S.C. §§ 343-1, 337(a).[2] Id.[3] Id.; Davidson v. Sprout Foods, Inc., 2024 WL 3213277, at *6 (9th Cir. June 28, 2024).[4] Davidson v. Sprout Foods, Inc., 2024 WL 3213277, at *6.[5] Id. at *12.[6] Id.[7] Id. at *17.[8] Id.

Passing on Preemption: Ninth Circuit Holds That California’s Sherman Law Is Not Impliedly Preempted