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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Earlier this year, the Ninth Circuit held that plaintiffs cannot avail themselves of liberal discovery rules in order to locate class representatives. The court

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Ninth Circuit Provides Guidance on Pre-certification Discovery

Ninth Circuit Provides Guidance on Pre-certification Discovery | Class Dismissed

Earlier this year, the Ninth Circuit held that plaintiffs cannot avail themselves of liberal discovery rules in order to locate class representatives. The court found that Rule 26(b)(1) of the Federal Rules of Civil Procedure, which governs the discovery process, does not authorize discovery before class certification when such discovery is to help plaintiffs locate a putative class representative.<a href="#_ftn1" name="_ftnref1">[1]</a>Plaintiff Sought Discovery to Follow the Thread to a Putative Class Representative Plaintiff William Rushing, a resident of Kentucky, purchased bedding from Defendant Williams-Sonoma online. He brought suit in California Superior Court bringing individual and class claims under California law, alleging that the thread count was much lower than the advertised 600 threads per square inch. Williams-Sonoma removed the case to federal court, where the district court used a choice-of-law analysis to conclude Kentucky law applied to Plaintiff’s claims.Because Plaintiff’s class action claim was impermissible under Kentucky consumer law, Plaintiff needed a California class representative to keep the action alive. Thus, Plaintiff “sought to obtain discovery from Williams-Sonoma for the sole purpose of aiding his counsel’s attempt to find a California purchaser of bedding from Williams-Sonoma who might be willing to sue.”<a href="#_ftn2" name="_ftnref2">[2]</a> The district court ordered Williams-Sonoma to produce a list of customers and subsequently denied its request for leave to file a motion for reconsideration. Williams-Sonoma sought a writ of mandamus to vacate the district court’s discovery order.Ninth Circuit Vacates Discovery Order that Required Production of a Customer List  The Ninth Circuit granted the writ and vacated the discovery order. Judge Ferdinand Fernandez, writing for the majority panel, explained that seeking discovery of the names of potential class members—for the purpose of finding a named class plaintiff—is not within the purview of relevant evidence under Rule 26(b)(1). In so ruling, the Ninth Circuit panel relied on Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978), in which the Supreme Court held that federal discovery rules cannot subject a defendant to an order directing it to compile a list of class members for identifying those to whom individual notice must be sent.<a href="#_ftn3" name="_ftnref3">[3]</a>Judge Fernandez also explained that the 2015 amendment to Rule 26(b)(1) narrowed the scope of discovery, which now requires that it be “relevant to any party’s claim or defense.”<a href="#_ftn4" name="_ftnref4">[4]</a> That amendment “was intended to restrict and not broaden the scope of discovery.”<a href="#_ftn5" name="_ftnref5">[5]</a> In In re Williams-Sonoma, the Ninth Circuit did not buy plaintiff’s argument that the information sought was broadly relevant to class certification issues. That contention “[did] not undercut, or water down, the primary point that using discovery to find a client to be the named plaintiff before a class action is certified is not within the scope of Rule 26(b)(1).”<a href="#_ftn6" name="_ftnref6">[6]</a> Accordingly, the Ninth Circuit concluded that the district court’s decision was clear error as a matter of law and vacated the discovery order.In a lengthy dissent, Judge Richard Paez explained that the district court had not erred because it remains “an open question” whether Rule 26(b)(1) may be used as a pre-certification tool to find a named class representative.<a href="#_ftn7" name="_ftnref7">[7]</a> As he read it, Oppenheimer Fund only stands for the proposition that class counsel cannot rely on Rule 26 or any other federal discovery rule to attempt to notify potential class members that a class action has been certified. Instead, class counsel must rely on Rule 23(d), which outlines the procedures for conducting the class action. Judge Paez also explained that Rule 23(d) “provides district courts with residual powers to regulate communication with absent class members outside of formal notice requirements” even before class certification, primarily in light of the fiduciary duties that class counsel owe putative class members.<a href="#_ftn8" name="_ftnref8">[8]</a>TakeawaysWhen served with pre-certification discovery that appears designed to locate a putative class representative for the plaintiffs, defendants should object on the ground that the information sought is not within the scope of Rule 26(b)(1) because it is not “relevant to any party’s claim or defense.”<a href="#_ftn9" name="_ftnref9">[9]</a> On the other hand, defendants should keep in mind that Rule 23(d) may be an appropriate source of authority for court orders directing a defendant to compile a list of potential putative class members in order to facilitate the sending of notice, but it is unlikely that such disclosures are proper before class certification.<a href="#_ftnref1" name="_ftn1">[1]</a> See In re Williams-Sonoma, Inc., 947 F.3d 535, 540 (9th Cir. 2020).<a href="#_ftnref2" name="_ftn2">[2]</a> Id. at 538.<a href="#_ftnref3" name="_ftn3">[3]</a> See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350-55 (1978). The Supreme Court explained that relevancy in discovery means the information sought is “aimed at illuminating issues in the case,” not facilitating class notice. Id. at 354.<a href="#_ftnref4" name="_ftn4">[4]</a> In re Williams-Sonoma, Inc., 947 F.3d at 539 (quoting Rule 26(b)(1)).<a href="#_ftnref5" name="_ftn5">[5]</a> Id.<a href="#_ftnref6" name="_ftn6">[6]</a> Id. at 540.<a href="#_ftnref7" name="_ftn7">[7]</a> Id. at 542 (Paez, J., dissenting).<a href="#_ftnref8" name="_ftn8">[8]</a> Id. (citation omitted).<a href="#_ftnref9" name="_ftn9">[9]</a> Fed. R. Civ. P. 26(b)(1).