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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The Future of Section 230: Protection Against Product Liability Claims?

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Earlier this month, the Washington Supreme Court saddled medical device manufacturers with a new duty to warn under Washington law—the duty to warn hospitals about potential risks their products may pose—and eroded exemptions from strict liability afforded to manufacturers of certain “unavoidably unsafe” products.<a href="#_ftn1" name="_ftnref1">[1]</a>  This decision comes as a surprise and represents an unexpected shift in the law with regard to medical device manufacturers.Background  Intuitive Surgical, Inc. (Intuitive) manufactures and markets the da Vinci System robotic device—a device that has been used for robotic laparoscopic surgeries for nearly two decades.  Due to its complexity, the da Vinci System may only be used by credentialed surgeons.In this case, Intuitive sold the da Vinci System to a hospital in Washington State.  Separately, Intuitive provided a user’s manual with warnings to the doctors that would use the device.  A credentialed doctor used the da Vinci System to treat Plaintiff’s prostate cancer in September 2008.  According to the opinion, the doctor did not follow all of the warnings, and Plaintiff experienced complications during the procedure.  As a result, Plaintiff alleged that his quality of life was reduced.Plaintiff sued the doctor who performed his surgery, his partner and their medical practice, the hospital that purchased the da Vinci Robot, and Intuitive.  Plaintiff settled with the medical provider defendants before trial, leaving Intuitive as the only defendant.  The trial court granted summary judgment in Intuitive’s favor on all claims except Plaintiff’s failure-to-warn claim under the Washington Product Liability Act (WPLA).  The case went to trial.  The jury returned a verdict for Intuitive, specifically finding it was not negligent in providing warnings or instructions to the doctor who performed the surgery.  On appeal, Plaintiff pursued a number of arguments, including that the trial court (1) erred in declining to instruct the jury that Intuitive had a duty to warn the hospital and (2) improperly applied a negligence standard to Plaintiff’s failure-to-warn claims (rather than strict liability).  The case was affirmed on appeal and the Washington Supreme Court granted review.Evolving LawThe Washington Supreme Court made two significant holdings, finding the trial court erred by:  (1) not instructing the jury on Intuitive’s duty to warn the purchasing hospital; and (2) improperly applying the negligence standard, rather than strict liability, to Plaintiff’s failure to warn claim.A New Duty to Warn HospitalsThe court created a new duty to warn hospitals.  The court reasoned that this duty arises from the WPLA, which requires manufacturers to warn of risks to “purchasers” of dangerous products.  But even the court could not decide whether the text of the statute supports this duty.  At one point the court admits that “the duty [to warn hospitals] is not explicitly stated in the text of the [WPLA].”  Yet in another part of the opinion the court agrees with plaintiff’s argument “that the manufacturer’s duty to warn exists in the plain text of the WPLA.”<a href="#_ftn2" name="_ftnref2">[2]</a>  Ultimately, the court reasoned that the text of the WPLA requires manufacturers to provide warnings “with” products and therefore the purchaser (here, the hospital) is owed product warnings “with” the product.  The court conceded that the “physician is in the best position to make a decision regarding the patient’s treatment,” but noted that “the hospital is not completely absent from the process.”<a href="#_ftn3" name="_ftnref3">[3]</a>  Following this unprecedented path, the court held that the warnings provided to the credentialed doctor should also have been given to the hospital.  Rather than rely on legal precedent, however, the court leaned on policy and logic arguments, as well as dicta from other cases.  The result opens a Pandora’s Box of questions for manufacturers seeking to warn end users and learned intermediaries about its products.  For example, what entities or individuals in various distribution chains require warnings?  And who qualifies as a purchaser?In fashioning this new duty, the court held that the learned intermediary doctrine did not apply here because the manufacturer’s duty ran to the hospital.  By contrast, the learned intermediary doctrine allows manufacturers to discharge their duty to warn the patient by warning the doctors prescribing the products.  The dissenting Justice noted that the court lost sight of how the duty to warn translates to liability.  Specifically, this unprecedented duty to warn the hospital, even if supported in law, is only a duty owed to the hospital and should not form the basis for recovery by the Plaintiff/patient.  Id. at *37 (“[Plaintiff] cannot invoke a duty owed to [the hospital] to recover damages from Intuitive.”)Comment k Protections InapplicableUnfortunately, the court also reinterpreted and limited the protections provided to certain manufacturers of unavoidably unsafe products.  Comment k to the Restatement (Second) of Torts, § 402A concerns unavoidably unsafe products (products incapable of being made safe that are not unreasonably dangerous given the public benefit they offer).  Recognizing the public policy benefits of keeping such products on the market, comment k exempts manufacturers from strict liability if they produce unavoidably unsafe products so long as the products are “properly prepared and marketed, and proper warning is given.”<a href="#_ftn4" name="_ftnref4">[4]</a>  In short, manufacturers of unavoidably unsafe products are held to negligence, not strict liability standards.  Ignoring cases that applied this negligence standard, and finding “no binding precedent in Washington” on the issue, the court determined that “proper warnings are a prerequisite to application of the exception” provided by Comment k.<a href="#_ftn5" name="_ftnref5">[5]</a>  The court reasoned that because Intuitive did not provide warnings to the hospital, application of the Comment k protection was improper and Intuitive should be judged on a strict liability basis.ConclusionIn sum, the Washington Supreme court (1) expanded medical device manufacturers’ duty to warn to hospitals, and (2) stripped away a layer of protection offered to manufacturers of unavoidably unsafe products.  Fortunately, this case appears to be an outlier, and is unlikely to be followed in other jurisdictions that adhere to traditional principles of product liability law.<a href="#_ftnref1" name="_ftn1">[1]</a> Taylor v. Intuitive Surgical, Inc., No. 92210-1, 2017 Wash. LEXIS 200, at *2 (Feb. 9, 2017)<a href="#_ftnref2" name="_ftn2">[2]</a> Id. at *11-12<a href="#_ftnref3" name="_ftn3">[3]</a> Id. at *14-15<a href="#_ftnref4" name="_ftn4">[4]</a> Restatement 2d of Torts, § 402A (2nd 1979)<a href="#_ftnref5" name="_ftn5">[5]</a> Taylor, No. 92210-1, 2017 Wash. LEXIS 200, at *25, 28

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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

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

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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Expanding Duties and Eroding Protections for Medical Device Manufacturers

Expanding Duties and Eroding Protections for Medical Device Manufacturers

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Earlier this month, the Washington Supreme Court saddled medical device manufacturers with a new duty to warn under Washington law—the duty to warn hospitals ab

Defendants successfully argued “fraudulent joinder” in Bahalim v. Ferring Pharmaceuticals, Inc., winning dismissal of the case in its entirety.<a href="#_ftn1" name="_ftnref1">[1]</a>  The case was decided on Plaintiffs’ motion to remand and Defendants’ motions to dismiss after Defendant Ferring Pharmaceuticals removed the suit to federal court based on diversity jurisdiction.  The court rejected Plaintiffs’ argument that the forum defendant rule applied and ultimately dismissed the case.BackgroundFerring manufactures and distributes Bravelle, a drug designed to treat infertility in women.  Plaintiffs, who were citizens of Texas and Utah, sued Ferring and Stericycle in Illinois state court.  They alleged that Ferring recalled multiple lots of the drug that did not meet potency specifications and that Stericycle administered the recall.  Plaintiffs further alleged that they consumed Bravelle from the recalled lots and asserted claims based on negligence, strict liability, product liability, and express and implied warranties.Ferring removed the case to federal court based on complete diversity of citizenship.  Plaintiffs argued in a motion to remand that removal was improper under the forum defendant rule, which prohibits removal premised on diversity in cases where at least one defendant is a citizen of the forum state.  Although Stericycle was a citizen of the forum state Illinois, Ferring argued Plaintiffs had fraudulently joined Stericycle, and therefore removal was proper.Fraudulent Joinder DoctrineTo establish fraudulent joinder, a defendant must prove that the plaintiff cannot establish a cause of action against the forum state defendant after resolving all issues of fact and law in favor of the plaintiff.  The court considered the policy interests articulated in Morris v. Nuzzo, a Seventh Circuit opinion that considered fraudulent joinder in the context of the forum defendant rule.<a href="#_ftn2" name="_ftnref2">[2]</a>The court concluded that:  a plaintiff’s interest in selecting the forum is less compelling when he or she joins a non-diverse defendant; improperly joining a forum defendant lessens the weight provided to a plaintiff’s choice of forum; and neither plaintiff here was an Illinois citizen, thus weakening the court’s deference to plaintiffs’ choice of forum.  Furthermore, the forum defendant rule only applies where a resident defendant is properly joined and served—but a fraudulently joined forum defendant is not a properly joined defendant.  Therefore, the court concluded that the interest in confining federal jurisdiction to its appropriate statutory limits weighed in favor of Defendants.Finally, the court determined that Plaintiffs could not maintain a failure to warn or negligence claim against Stericycle, and had improperly joined Stericycle for the sole purpose of avoiding removal to federal court.  In support of its conclusion, the court noted that Stericycle did not manufacture, promote, distribute, or sell Bravelle.  Therefore, Plaintiffs could not bring a product liability failure to warn claim against Stericycle under the applicable state laws.  Plaintiffs’ negligence claims against Stericycle were similarly without merit.ConclusionHaving concluded that the fraudulent joinder doctrine applied and that Plaintiffs’ claims against Stericycle had no chance of success, the court granted Stericycle’s motion to dismiss.  The court also granted Ferring’s motion to dismiss for lack of personal jurisdiction, holding that Ferring did not have sufficient minimum contacts in Illinois to establish specific jurisdiction.The fraudulent joinder doctrine is not commonly raised and may often be overlooked as a litigation tool for defendants.  Although applicable only in specific circumstances, Bahalim proves that it is worth asserting in appropriate cases.<a href="#_ftnref1" name="_ftn1">[1]</a> Bahalim v. Ferring Pharmaceuticals, Inc., Case No. 16 C 8335, 2017 WL 118418 (N.D. Ill. Jan. 12, 2017).<a href="#_ftnref2" name="_ftn2">[2]</a> Morris v. Nuzzo, 718 F.3d 660 (7th Cir. 2013).

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Brittany Scheinok is an associate in the Litigation Department of the firm’s San Diego office.

Brittany Scheinok

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Plaintiffs’ Fraudulent Joinder Tactic Results in Dismissal

U.S. Supreme Court’s Decision to Review a Pair of FTCA Cases Could Spell a Sea Change in FTC’s Enforcement Authority

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Defendants successfully argued “fraudulent joinder” in Bahalim v. Ferring Pharmaceuticals, Inc., winning dismissal of the case in its entirety. The case was dec

Plaintiffs’ Fraudulent Joinder Tactic Results in Dismissal

A trap for unwary manufacturers and retailers is the California Air Resources Board (CARB) regulations for consumer and other products sold in the state. These rules limit the concentrations of volatile organic compounds (VOCs) and other greenhouse gas–producing chemicals. CARB enforces these regulations with civil penalties and demands for stipulated injunctions. The regulations often apply a step-down approach to require ever-smaller amounts of these chemicals over an extended time period.

California’s New Spray Adhesive and Aerosol Coatings Requirements – Will You Be Ready on January 1?

A trap for unwary manufacturers and retailers is the California Air Resources Board (CARB) regulations for consumer and other products sold in the state. These 

California’s New Spray Adhesive and Aerosol Coatings Requirements – Will You Be Ready on January 1?

A federal district court in Wisconsin recently ruled against a product manufacturer, finding it liable for failing to report timely in a rare U.S. Consumer Product Safety Commission (CPSC)‑backed lawsuit.  United States v. Spectrum Brands, Inc., No. 15-CV-371-WMC, 2016 WL 6835371, at *24 (W.D. Wis. Nov. 17, 2016).  While CPSC actively oversees voluntary recalls,<a href="#_ftn1" name="_ftnref1">[1]</a> it seldom brings suit in court.  In Spectrum Brands, the Wisconsin district court interpreted the Consumer Product Safety Act (CPSA) to grant CPSC broad latitude in seeking and levying penalties for failure to report potential product safety hazards.BACKGROUNDIn November 2014, Spectrum merged with Applica Consumer Products, Inc. (“Applica”), leaving Spectrum to assume all of Applica’s assets and liabilities.  Between 2008 and 2012, Applica imported coffeemakers from China and sold them in the United States.  During the same period, Applica received numerous customer complaints that the coffeemaker’s carafe handle would break and spill hot coffee.  In March 2012, Applica was sued over the carafe handles.  Applica submitted a Section 15(b) report to CPSC in April 2012, followed by a voluntary recall of the coffeemakers in June 2012.SUMMARY OF ISSUESProcedural BackgroundThe DOJ, on behalf of CPSC, sued Spectrum seeking civil penalties and permanent injunctive relief for Spectrum’s alleged violation of reporting requirements under Section 15(b) of the CPSA.  The court considered a number of different motions in this ruling.  Early in the case, Spectrum moved to dismiss the government’s request for injunctive relief for failure to state a claim and for summary judgment on statute of limitations grounds.  Spectrum later moved for summary judgment on due process, Section 15(b) safe harbor, and other grounds.  The government also moved for summary judgment on its claims.Fair Notice under Due Process ClauseSpectrum moved for summary judgment on the ground that CPSC violated Spectrum’s due process right to fair notice by inconsistently determining whether similar defects and injuries triggered a reporting obligation.  The court rejected this argument, noting that the threshold for reporting a potential defect is a lower standard than whether a substantial product hazard actually exists.  The court explained that this disparity “is confirmed in practice, as less than 20% of non‑fast track Section 15(b) reports result in the CPSC finding that a substantial product hazard exists.”  The court further explained the perceived inconsistency in CPSC enforcement by noting that a number of factors, including the nature of defect and the number and severity of injuries, could reasonably lead to different results in analogous cases.Statute of LimitationsSpectrum also moved for summary judgment on the ground that the government’s civil penalty claims were time-barred.<a href="#_ftn2" name="_ftnref2">[2]</a>  The parties agreed a five-year statute of limitations applied to the government’s claims under 28 U.S.C. § 2462 because the CPSA does not have its own statute of limitations.  However, the parties disagreed as to when the claims first accrued.  The court endorsed the “continuing violation doctrine,” finding that a Section 15(b) action for a company’s alleged failure to make a timely report accrues not when the company first fails to report, but when its reporting obligation ends.  In other words, a claim accrues when a company eventually submits a late report or gains actual knowledge that the government is adequately informed.  The government’s claims were therefore timely in this case.Spectrum’s Duty to Report under Section 15(b)“Adequately informed” safe harbor.  The court rejected Spectrum’s argument that it fell within Section 15(b)’s safe harbor provision, which does away with a company’s obligation to report hazards if CPSC is already “adequately informed.”  It found that CPSC was not “adequately informed” of the risk posed by the coffeemakers because CPSC did not have the same material information as Spectrum.  Although CPSC knew about the defect and injuries, the court concluded this was not enough to trigger the safe harbor as CPSC’s knowledge must also overlap sufficiently with the defendant’s knowledge.  The court found that Spectrum knew of over a thousand more failures and dozens more injuries than did CPSC.Spectrum failed its section 15(b) obligation to report.  Reaching the merits of the case, the court held that no reasonable jury could find that Spectrum “immediately” informed CPSC about the potential product hazard.  The court noted that Spectrum’s duty was triggered at the very least by May 2009.  At that time, Spectrum was aware of reports of 60 broken handles and four burns.  It had also identified a similar cause of the breakages in two separately returned carafes and had implemented design changes in an attempt to remedy the handle issue.Availability of Injunctive ReliefAlong with civil penalties under the CPSA, the government sought injunctive relief and liquidated damages or the creation of an escrow account for continued violations.  Spectrum moved to dismiss as a matter of law on the grounds that the allegations in the complaint and the CPSA itself did not support such injunctive relief.  The court found dismissal of the request for injunctive relief premature at the pleadings (and even summary judgment) stage without further factual development.  However, the court noted that Spectrum provided reason to doubt the government’s ability to show that the broad scope of the injunctive relief was necessary.  The court therefore postponed the consideration of any proposed permanent injunction until further factual development.KEY TAKEAWAYS“When in doubt, report.”  The court’s decision echoes CPSC’s more recent signals to proactively heed Section 15(b) reporting requirements.  As the court notes: “[C]ompanies are strongly encouraged not to wait to report until a product defect causes a serious injury, but rather to report when they first appreciate that their product may contain a defect that could injure people, even when the risk of serious injury is in doubt.”CPSC has plenty of time to bring suit.  Companies are not necessarily in the clear after voluntary corrective action or submitting a late Section 15(b) report.  Other courts are likely to follow this court’s holding that the government’s five-year statute of limitations does not accrue until a company submits a late report or gains actual knowledge that the government is adequately informed of the product hazard.Potentially broad injunctive relief.  The parties now await the civil penalty determination and injunctive relief phase of the case.  Both of these issues will be significant as the court hints that the government may be asking for too much with its request for injunctive relief, depending on the language of the permanent injunction.  Thus, this case could continue to provide insight into CPSC enforcement policy as these issues are decided.<a href="#_ftnref1" name="_ftn1">[1]</a> <a href="https://www.law360.com/articles/742154/looking-back-at-another-very-active-year-for-the-cpsc" target="_blank">https://www.law360.com/articles/742154/looking-back-at-another-very-active-year-for-the-cpsc</a> (subscription required)<a href="#_ftnref2" name="_ftn2">[2]</a> <a href="/consumer-products/statute-of-limitations-taking-the-steam-out-of-cpsc-backed-enforcement-action/" target="_self">https://classdismissed.mofo.com/consumer-products/statute-of-limitations-taking-the-steam-out-of-cpsc-backed-enforcement-action/</a>

Rare Court Decision in CPSC-Backed Enforcement Action

A federal district court in Wisconsin recently ruled against a product manufacturer, finding it liable for failing to report timely in a rare U.S. Consumer Prod

Rare Court Decision in CPSC-Backed Enforcement Action

Last Friday, the state published the first major changes to the Proposition 65 regulations in more than a decade. The sweeping changes rewrite the “safe harbor” warning regulations and, in doing so, create a new set of challenges for businesses offering products or operating facilities in California.

In re Lumber Liquidators Chinese Laminate Litigation

Maxus Energy Corporation

In re Hydroxycut Personal Injury and Class Action Litigation

Los Angeles World Airport (LAWA)

Environmental Law Foundation v. Beech-Nut Nutrition Corp., et al

Fitbit Force Recall 

People of the State of California v. The Coca-Cola Company

Seagate Technology LLC

Clif Bar, Inc.

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Drawing on his considerable experience in environmental health, William (Bill) focuses his practice on environmental and consumer protection law, with an emphasis on climate-related goals and claims, hazardous substances, mass torts, and consumer product safety.

William Tarantino

Drawing on his considerable experience in environmental health, William (Bill) focuses his practice on environmental and consumer protection law, with an emphasis on hazardous substances, mass torts, and consumer product safety.

William F. Tarantino

WARNING: California Adopts New Proposition 65 “How to Warn” Rules