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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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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Dorris v. Danone Waters of America is one of a growing number of lawsuits filed against companies for making claims regarding their carbon footprint.

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Plaintiff Survives Motion to Dismiss in evian Water Bottle “Carbon Neutral” Suit | Class Dismissed

Krista S. deBoer

William F. Tarantino

Cedar Hobbs

Dorris v. Danone Waters of America is one of a growing number of lawsuits filed against companies for making claims regarding their carbon footprint. While similar cases have been winding through the courts, Dorris is the first case in which a federal judge has addressed whether a lawsuit challenging a carbon neutral claim can survive a motion to dismiss on the merits.On January 10, 2024, U.S. District Court Judge Nelson Román of the Southern District of New York ruled that a lawsuit against Danone Waters of America (“Danone”) involving “carbon neutral” claims on evian water bottles can proceed.<a href="#_ftn1" target="_self">[1]</a> The opinion, which noted that “consumers are confused” by the term “carbon neutral” and found that a reasonable consumer could be misled by the representation on the product’s label, may embolden the plaintiffs’ bar and spur more lawsuits targeting companies for carbon-related claims.Dorris’s ClaimsIn October 2022, plaintiff Stephanie Dorris filed a putative class action complaint against Danone, alleging that she was misled by Danone’s “carbon neutral” claims on its product “evian Natural Spring Water” bottled water to believe that evian’s manufacturing did not result in carbon dioxide releases to the atmosphere and paid a price premium based on that alleged misrepresentation.To support her claim, Dorris argued that “carbon neutral” is an ambiguous and deceptive term and pointed to various publications that she claimed showed that consumers either did not know what the term meant or often mistook it for “carbon zero” or “carbon free,” including a report by the <a href="https://pro.morningconsult.com/instant-intel/carbon-neutral-consumer-awareness'" target="_blank">Morning Consult</a>, which found that 30% of Americans did not know what the term meant, while 29% incorrectly defined the term. She also challenged the use of carbon offsets to substantiate “carbon neutral” claims, citing reports that argued that carbon offsets often overstated their impact on carbon reductions and calling the carbon offset economy “murky and highly questionable.”Finally, she alleged that Carbon Trust’s “carbon neutral” footprint logo on evian bottles was misleading. Carbon Trust is a third-party organization that verifies “carbon neutral” claims. Dorris claimed it was unclear from the logo whether the “carbon neutral” claim was based on Danone’s calculations or Carbon Trust’s calculations. Further, she alleged that, even if it were clear that the “carbon neutral” claim was based on Carbon Trust’s calculations, the claim would still be misleading because “[n]owhere on the packaging or the bottle does Defendant explain what Carbon Trust is, what their carbon neutral logo means, or how Defendant goes about achieving Carbon Trust’s standards.”Dorris brought claims under California, Massachusetts, and New York consumer protection laws. She also alleged breach of express warranty, breach of implied warranty, unjust enrichment, and fraud.Danone’s Motion to DismissOn April 27, 2023, Danone filed a motion to dismiss, arguing the label was not misleading because the water bottle stated that it was certified by Carbon Trust as “carbon neutral,” which was true, and that Dorris’s grievance was with Carbon Trust’s use of carbon offsets in its certification methodologies.Danone also argued that it did not need to provide a calculation of its carbon neutrality claims because certifications like the Carbon Trust logo “exist precisely to provide a ‘shorthand’ to avoid lengthy explanations.” Additionally, Danone argued that the water bottle provided a link to evian’s website, which provided further information on the product’s carbon neutral certification and associated standards. With respect to consumer deception, Danone contended no reasonable consumer would be misled by the label to believe that there was zero carbon footprint associated with the product—i.e., no consumer could reasonably believe evian water is transported from factories in the French Alps to the United States without emitting any carbon at all. To support its argument, Danone asserted that (1) no carbon zero products exist, (2) the dictionary definition of “carbon neutral” encompasses the use of carbon offsets, and (3) evian’s website discloses that there is a carbon footprint associated with the water bottle.The court ultimately dismissed Dorris’s claims under New York consumer protection laws and the claim of breach of implied warranty on technical pleading standards but, on the merits, was unpersuaded and allowed the Massachusetts and California consumer protection law claims and claims of breach of express warranty, unjust enrichment, and fraud to proceed.Notably, the court concluded that a “reasonable consumer could plausibly be misled by the ‘carbon neutral’ representation on the Product’s label.” Judge Román wrote that, rather than possessing a common meaning, “carbon neutral” was more “technical and scientific, unfamiliar to and easily misunderstood by the reasonable consumer.”The court disagreed with Danone’s claim that the link to evian’s website on the product was sufficient to clarify any representations because “reasonable consumers should not be expected to visit two separate websites and read several pages to fully understand the meaning of ‘carbon neutral’ and ‘certified by Carbon Trust.’”What Dorris Means for Carbon-Related ClaimsDorris v. Danone Waters of America marks a first in carbon claims litigation. Until now, other cases involving carbon offset claims, such as Dakus v. Koninklijke Luchtvaart Maatschappij,<a href="#_ftn2" target="_self">[2]</a> have been dismissed on standing grounds. Dorris is the first case in which a federal judge has directly engaged with the question of whether carbon-related claims, specifically carbon neutral claims, can mislead consumers. The Court’s suggestion that consumers are confused by the meaning of “carbon neutral,” and that website disclosures may not be sufficient to substantiate carbon claims on product labels, leaves many companies asking how they can adequately substantiate product claims. The ruling is likely to encourage many companies to re-evaluate product claims to mitigate litigation exposure.Dorris is also further evidence of growing skepticism of climate claims that rely on carbon offsets. As consumer demand for products and services with reduced climate impact grows, so does scrutiny of the burgeoning carbon offset market, also known as the voluntary carbon market, which has been largely unregulated to this point. As discussed in a <a href="https://www.mofo.com/resources/insights/230615-uncertainty-carbon-markets-novel-carbon-offset">prior client alert</a>, in 2023, various reports challenged the integrity of carbon offsets.<a href="#_ftn3" target="_self">[3]</a> And already in 2024, a similar report published by Nature Sustainability criticized cookstove projects as overestimating their impact by as much as 920%.<a href="#_ftn4" target="_self">[4]</a>States also are turning their attention to carbon-related claims and are beginning to consider legislation to address concerns about greenwashing. In a <a href="https://www.mofo.com/resources/insights/231018-california-enacts-ab-1305-to-strengthen-the-voluntary-carbon">prior client alert</a>, we discussed California’s Assembly Bill 1305, the Voluntary Carbon Market Disclosures Business Regulation Act (VCMDA), passed in October 2023. The VCMDA requires businesses making certain emissions-related claims, such as “carbon neutral,” to provide various disclosures on their websites substantiating those claims.MoFo will continue to monitor cases and legislative action relating to companies’ carbon-related marketing initiatives and evaluate the significance to our clients. MoFo’s broad-based ESG practitioners regularly advise companies in developing multi-pronged strategies to both set and meet climate goals, while mitigating the potential litigation and enforcement risk arising from ESG disclosures, marketing, and advertising.<a href="#_ftnref1" target="_self">[1]</a> Dorris v. Danone Waters of America, Case No. 7:22-cv-08717-NSR (S.D.N.Y. Jan. 10, 2024).<a href="#_ftnref2" target="_self">[2]</a> Dukas v. Koninklijke Luchtvaart Maatschappij, N.V., 1:22-cv-07962-RA (S.D.N.Y).<a href="#_ftnref3" target="_self">[3]</a> See, e.g., Nina Lakhani, <a href="https://www.theguardian.com/environment/2023/sep/19/do-carbon-credit-reduce-emissions-greenhouse-gases" target="_blank">Revealed: top carbon offset projects may not cut planet-heating emissions</a>, The Guardian (Sep. 19, 2023); Thales A. P. West et al., <a href="https://www.science.org/doi/10.1126/science.ade3535" target="_blank">Action needed to make carbon offsets from forest conservation work for climate change mitigation</a>, 381 Science 6660, 873 (2023); Patrick Greenfield, <a href="https://www.theguardian.com/environment/2023/jan/18/revealed-forest-carbon-offsets-biggest-provider-worthless-verra-aoe" target="_blank">Revealed: more than 90% of rainforest carbon offsets by biggest certifier are worthless, analysis shows</a>, The Guardian (Jan. 18, 2023).<a href="#_ftnref4" target="_self">[4]</a> Annelise Gill-Wiehl et al., <a href="https://www.nature.com/articles/s41893-023-01259-6.epdf?sharing_token=6-EF0XOytgy6s1HMyvFWUNRgN0jAjWel9jnR3ZoTv0PY5koFksowKMxA7MIi6wx9OA04W8v_UKPTy7CKTglfUCvTI93MdjiaHTsUGRasUK2DG7Mxl7htCwwOiKlSXJL-qkrLRw6h9BbxA17jIEjcKoqw2E6ucNSM00hdlxKJSKKG9tCl4u_QsBZMRGAHY8_c7Rkm3aAxc1oOKbZDAjvyYqa608R4kAF1p2JLxE90HR0UxpGv_tvIylLks5PVezAXSO-Hwmbp5-s5IFL_eVmYn4sJFnojXPv8yeAn1HJFj5f7zu560vpiaH809I7NeKU0lOJ14Y_UR7hohbu95z3RyWn8aju3Wp3V70s9p9-jI2c%3D&tracking_referrer=www.theguardian.com" target="_blank">Pervasive over-crediting from cookstove offset methodologies</a>, Nature Sustainability (Jan. 23, 2024).

Plaintiff Survives Motion to Dismiss in evian Water Bottle “Carbon Neutral” Suit