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

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

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

<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

Zak is an associate in the Litigation Department in Morrison Foerster’s New York office.Zak’s practice focuses on class actions, commercial litigation, white collar defense, government investigations, and antitrust litigation and counseling. He has represented clients before federal and state courts in complex commercial matters, as well as in arbitration tribunals.Zak received his J.D. from New York University School of Law in 2018, where he was inducted into the Order of the Barristers. During law school, Zak also served as the Marden executive editor for the NYU Law Moot Court Board. In 2013, Zak received his B.A. and M.A. in political science from Yale University, receiving honors in his major and the Ellsworth Prize for Best Senior Essay in the Social Sciences.

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Zak Newman

Mitchell A. Hokanson is an associate in the Litigation Department of Morrison Foerster’s San Diego office.Mitchell’s practice focuses on commercial litigation and consumer class actions. He has extensive experience with civil litigation, including managing day-to-day strategy, propounding and responding to discovery, taking and defending depositions, and engaging in motion practice. He also has experience providing regulatory advice to clients, including pro bono partners and multinational corporations. Mitchell maintains an active pro bono practice.After law school, Mitchell worked as a judicial clerk for Justice Susan M. Carney of the Alaska Supreme Court, where he drafted bench memoranda and opinions on a wide range of state and federal law topics. Prior to joining MoFo, Mitchell worked for another international law firm, where he was a member of the Complex Civil Litigation practice group, in Los Angeles, California.Mitchell received his J.D. from Columbia Law School, where he was honored as a James Kent Scholar and Harlan Fiske Stone Scholar. While in law school he was the senior executive editor of the Columbia Journal of Environmental Law and worked as a judicial intern for Judge Sandra S. Ikuta of the United States Court of Appeals for the Ninth Circuit and Judge George B. Daniels of the United States District Court, Southern District of New York. Prior to that, Mitchell earned his B.A. from Stanford University.

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Mitchell Hokanson

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FDA Seeks to Phase Out Synthetic Color Additives

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ICPHSO 2025: CPSC at ICPHSO

ICPHSO 2025: State Regulation in Response to Trump’s Push for Federal Deregulation

Everyone Please Stand: Supreme Court to Consider Standing Requirements for Class Actions, With the Potential to Resolve Long-standing Multi-circuit Split.

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This second installment of our <a href="https://www.mofo.com/resources/insights/240319-cpsc-at-icphso-2024-enforcement-priorities" target="_self">series</a> highlights CPSC’s Office of Compliance Activity and continued aggressive enforcement efforts.Multiple presenters emphasized CPSC’s continued aggressive enforcement. Commenters frequently repeated the statistic that CPSC obtained over $52 million in civil penalties in its fiscal year 2023. Further, since January 2021, CPSC has settled 11 civil penalty investigations, for a combined total of over $100 million. Jana Fong-Swamidoss, Chief of Staff to CPSC Chair Alexander Hoehn-Saric, explained that this trend is consistent with CPSC’s view that it is an enforcement agency and not just a regulator.Read the <a href="https://www.mofo.com/resources/insights/240320-cpsc-at-icphso-office-of-compliance-activity" target="_self">full client alert</a>.

CPSC at ICPHSO: Office of Compliance Activity

Fertility Center Litigation

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Lethal Injection Matters – Major Pharmaceutical Company

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In re Air Crash Near Peixoto de Azevedo, Brazil

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Co-Chair, Litigation Department

Erin Bosman is the global co-chair of Morrison Foerster’s litigation department. Erin is also the founder and co-head of the Artificial Intelligence group and former chair of the Complex Litigation + Advisement practice 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 the Global Co-Chair of Morrison Foerster’s Litigation Department. Erin is also the founder and co-head of the Artificial Intelligence Group and former chair of the Complex Litigation + Advisement Practice 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

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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

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

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Matt is an associate in the Litigation Department in MoFo’s San Diego office. Matt’s practice focuses on the product lifecycle, from early product development to litigation to end-of-life advisement. He counsels clients through complex consumer product safety regulatory landscapes and product recalls.











Matt Robinson

CPSC at ICPHSO: Office of Compliance Activity

This second installment of our series highlights CPSC’s Office of Compliance Activity and continued aggressive enforcement efforts.

The Consumer Product Safety Commission (CPSC) was well represented at the International Consumer Product Health and Safety Organization’s annual symposium in Orlando, which took place in February. Agency representatives provided a number of insights to consumer product safety stakeholders. This week, we will be providing an overview of topics covered by CPSC at ICPHSO, starting with CPSC’s 2024 priorities.Read the <a href="https://www.mofo.com/resources/insights/240319-cpsc-at-icphso-2024-enforcement-priorities" target="_blank">full client alert</a>.

CPSC at ICPHSO: 2024 Enforcement Priorities

The Consumer Product Safety Commission (CPSC) was well represented at the International Consumer Product Health and Safety Organization’s annual symposium in Orlando, which took place in February. 

CPSC at ICPHSO: 2024 Enforcement Priorities

Button cell and coin battery manufacturers and importers need to know about new requirements that come into effect next year. On September 21, 2023, the Consumer Product Safety Commission (CPSC), pursuant to its authority under Reese’s Law, published two rules imposing additional requirements for button cell and coin batteries and consumer products containing button cell and coin batteries. See <a href="https://www.federalregister.gov/documents/2023/09/21/2023-20334/safety-standard-for-button-cell-or-coin-batteries-and-consumer-products-containing-such-batteries" target="_blank">88 FR 65296</a>; <a href="https://www.federalregister.gov/documents/2023/09/21/2023-20333/safety-standard-for-button-cell-or-coin-batteries-and-consumer-products-containing-such-batteries">88 FR 65274</a>. Reese’s Law, 15 U.S.C. § 2056e, signed into law on August 16, 2022, was passed to protect children six years old and younger from button cell and coin battery ingestion hazards.Together, Reese’s Law and the two new rules from CPSC impose a broad set of construction, performance, packaging, and labeling requirements on battery manufacturers and importers.<table dir="ltr"><tbody dir="ltr"><tr dir="ltr"><td dir="ltr">Source</td><td dir="ltr">Requirements</td><td dir="ltr">Effective Date</td></tr><tr dir="ltr"><td dir="ltr"><a href="https://www.federalregister.gov/documents/2023/09/21/2023-20333/safety-standard-for-button-cell-or-coin-batteries-and-consumer-products-containing-such-batteries" dir="ltr" target="_blank">88 FR 65274</a></td><td dir="ltr">Construction Requirements<ul><li dir="ltr">Products with removable/replaceable batteries must restrict access to the battery compartment through one of the following methods:</li><ul><li dir="ltr">The compartment cannot be opened without a tool</li><li dir="ltr">The compartment cannot be opened without at least two independent and simultaneous hand movements</li></ul><li dir="ltr">Products with non-replaceable button cell or coin batteries must restrict access to the battery compartment</li></ul>Performance Requirements<ul><li dir="ltr">Products with button or coin cell batteries must pass various performance tests set forth in ANSI/UL 4200, such as a drop test, impact test, crush test, and torque test.</li></ul>Labeling Requirements<ul><li dir="ltr">Packaging for products with button cell or coin batteries must include a warning</li><li dir="ltr">Products with button cell or coin batteries must be marked with a warning</li></ul></td><td dir="ltr">Products manufactured or imported after March 19, 2024</td></tr><tr dir="ltr"><td dir="ltr"><a href="https://www.federalregister.gov/documents/2023/09/21/2023-20334/safety-standard-for-button-cell-or-coin-batteries-and-consumer-products-containing-such-batteries" dir="ltr" target="_blank">88 FR 65296</a></td><td dir="ltr">Labeling RequirementsThe packaging of button cell or coin batteries, including those packaged separately with a consumer product, must comply with various warning label requirements.</td><td dir="ltr">Products manufactured or imported after September 21, 2024</td></tr><tr dir="ltr"><td dir="ltr">Section 3 of Reese’s Law</td><td dir="ltr">Packaging RequirementsButton cell or coin batteries, or consumer products containing a button cell or coin battery, must be packaged in accordance with child-resistant packaging requirements in 16 C.F.R. 1700.15.</td><td dir="ltr">Products manufactured or imported after February 12, 2023</td></tr></tbody></table>I. Safety Standards for Button Cell and Coin Batteries (Direct Final Rule)CPSC issued a direct final rule<a href="#_ftn1" target="_self">[1]</a> adopting ANSI/UL 4200A as a mandatory safety standard, which includes construction, performance, and labeling requirements. See <a href="https://www.federalregister.gov/documents/2023/09/21/2023-20333/safety-standard-for-button-cell-or-coin-batteries-and-consumer-products-containing-such-batteries" target="_blank" dir="ltr">88 FR 65274</a> . The rule requires products manufactured or imported after October 23, 2023, to comply with these requirements. But CPSC announced that it will exercise its enforcement discretion by not enforcing these requirements until March 19, 2024.A. Construction RequirementsANSI/UL 4200A’s construction requirements distinguish between products with removable/replaceable button cell or coin batteries and products with non-replaceable button cell or coin batteries.Products with removable/replaceable batteries: To prevent children from accessing the battery, battery compartments in products with removable/replaceable button cell or coin batteries shall be secured by one of the following methods:<ul><li dir="ltr">The battery compartment cannot be opened without use of a tool; or</li><li dir="ltr">The battery compartment cannot be opened without at least two independent and simultaneous hand movements.</li></ul>Products with non-replaceable batteries: Products with non-replaceable button cell or coin batteries must effectively prevent removal of the battery by a child or the user through, for instance, the use of soldering or fasteners.B. Performance RequirementsANSI/UL 4200A also sets forth performance requirements to ensure products containing button cell or coin batteries “do not present a risk of unintentional access by children.” These provisions require products to pass several tests, including drop, impact, crush, and torque tests, among others.C. Labeling RequirementsANSI/UL 4200A section 7 requires that the principal display panel of packaging for consumer products containing button cell or coin batteries include a warning, such as the warning below:<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt1df89912ca28efaa/65760b07302a1676ae469f58/231210-blog-image-1.png?format=auto&amp;quality=60" alt="blog image"/></div>Additionally, consumer products containing button cell or coin batteries must also be marked with the following warning:<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt8ab3341bc1e2f918/6576119f67bbf56461989cad/231210-blog-image-3.png?format=auto&amp;quality=60" alt="blog image"/></div>If the above warning does not fit given the size of the product, the product must include the following warning symbol, which is internationally recognized to mean: “Warning: contains coin battery”:<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt45de6a2014197f9a/65760b2f7631d173da80033e/231210-blog-image-3.png?format=auto&amp;quality=60" alt="blog image"/></div>II. Additional Labeling Requirements for Button Cell and Coin Batteries (Final Rule)CPSC also promulgated a final rule to establish warning label requirements for the packaging of button cell or coin batteries, including those packaged separately with a consumer product. See <a href="https://www.federalregister.gov/documents/2023/09/21/2023-20334/safety-standard-for-button-cell-or-coin-batteries-and-consumer-products-containing-such-batteries" target="_blank" dir="ltr">88 FR 65296</a>. The final rule requires that the principal display panel include a warning label, such as the warning below:<div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/bltaf698cad8c2f5e92/65760b3f99c5124d40d983ce/231210-blog-image-4.png?format=auto&amp;quality=60" alt="blog image"/></div>Warning statements must be clearly visible, prominent, legible, and permanently marked, among other requirements.Additionally, the following statements must be placed on the principal or secondary display panels:<ol><li dir="ltr">Keep in original package until ready to use.</li><li dir="ltr">Immediately dispose of used batteries and keep away from children. Do NOT dispose of batteries in household trash.</li></ol>These requirements apply to products manufactured or imported after September 21, 2024.III. Packaging Requirements for Button Cell or Coin BatteriesSection 3 of Reese’s Law requires any button cell or coin battery, or consumer product containing a button cell or coin battery, that is sold, distributed, or imported into the U.S. to be packaged in accordance with child-resistant packaging requirements in 16 C.F.R. 1700.15. These requirements became effective February 12, 2023.IV. CertificationManufacturers of products subject to these requirements must certify compliance in a Children’s Product Certificate or a General Certificate of Compliance. Third-party testing and certification of children’s products subject to Reese’s Law are not required until December 20, 2023.V. Consult Legal CounselReese’s Law adds a number of safety-related requirements for many battery-containing consumer products. Companies should review their practices and consult with legal counsel to evaluate compliance.<a href="#_ftnref1" target="_self">[1]</a> A direct final rule is a rule issued without a preceding proposed rule and notice/comment period. Instead, the direct final rule goes into effect on a certain date, unless the rule receives substantive adverse comments prior to going into effect. In contrast, a final rule is issued following a proposed rule and notice/comment period.

CPSC Imposes New Requirements for Button Cell and Coin Batteries Pursuant to Reese’s Law

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Cedar Hobbs is an associate in MoFo’s Complex Litigation + Advisement Group in the San Diego office. His practice focuses on complex civil litigation and environmental law and regulation.

Cedar Hobbs

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CPSC Imposes New Requirements for Button Cell and Coin Batteries Pursuant to Reese’s Law

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Button cell and coin battery manufacturers and importers need to know about new requirements that come into effect next year. 

Consumer products businesses should know that “right to repair” laws are here to stay. Frustrated with restrictions on repairing consumer electronics, advocacy organizations spearheaded a grassroots “right to repair” movement that is gaining traction. Publicly endorsed by the <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/" target="_blank" dir="ltr">White House</a> and the <a href="https://www.ftc.gov/system/files/documents/reports/nixing-fix-ftc-report-congress-repair-restrictions/nixing_the_fix_report_final_5521_630pm-508_002.pdf" target="_blank">Federal Trade Commission</a>, the “right to repair” movement presses manufacturers to give everyone access to the same repair resources that before had only been available to manufacturers and licensed repair vendors. Thus, affected businesses need to become familiar with new regulatory obligations in a growing number of jurisdictions.BackgroundNew York was the trailblazer in this space, enacting the first “right to repair” law in the U.S.: the <a href="https://www.nysenate.gov/legislation/bills/2023/S1320" target="_blank">New York Digital Fair Repair Act</a>, which was signed into law on March 3, 2023. Next year, the <a href="https://www.revisor.mn.gov/laws/2023/0/Session+Law/Chapter/57/" target="_blank">Minnesota Digital Fair Repair Act</a> will go into effect, and the <a href="https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202320240SB244&showamends=false" target="_blank">California Right to Repair Act</a> will likely follow suit later in 2024. Several more bills are on the road to enactment, with at least 22 state legislatures currently considering “right to repair” bills.Behind many of these bills is the Repair Association, a trade organization that developed the “<a href="https://www.repair.org/legislation" target="_blank">Right to Repair & Fair Repair Legislative Template</a>” (the Model Act). The Model Act reflects the policy objectives of the “right to repair” movement:<ul><li dir="ltr">Ensure that owners and unaffiliated repair vendors have access to the same resources available to the manufacturer or licensed repair vendors;</li><li dir="ltr">Allow owners to service their products at the repair vendor of their choice;</li><li dir="ltr">Legalize the unlocking, adapting, and modifying of any part (including software); and</li><li dir="ltr">Require implementation of “design for repair” principles in product design practices.</li></ul>Generally, “right to repair” laws require manufacturers to make repair parts, tools, and documentation publicly available if they are also available to the manufacturers and licensed repair vendors. Manufacturers must make these resources available on “fair and reasonable terms” and can do so directly to consumers or through affiliated repair vendors. However, each jurisdiction’s law has its own features and scope. This article compares and contrasts some of each law’s main features and presents key takeaways for affected businesses.Key TermsOriginal Equipment Manufacturers (OEMs): Most often, OEMs are businesses that engage in selling or leasing digital electronic equipment that they manufacture or that is manufactured on their behalf. These are covered entities and individuals.Digital Electronic Equipment (DEE): This refers to covered products, largely targeting personal electronics like cell phones, tablets, and computers. Many consumer products that rely on “embedded digital electronics” may also qualify. Each jurisdiction uniquely exempts or includes certain equipment, although some products like video game consoles are routinely exempted.Authorized Repair Providers (ARPs): These are repair vendors that previously had exclusive access to repair resources. An ARP can be the OEM itself or a repair vendor that is directly affiliated with or licensed by the OEM.Independent Repair Providers (IRPs): This term is used broadly and refers to anyone making repairs that is not considered an ARP. Essentially, an individual or business that conducts repairs on DEE and is not affiliated with or licensed by the OEM.Comparison Chart<table dir="ltr" id="_ftnref5"><colgroup data-width='726'><col style="width:41.32231404958678%"><col style="width:15.013774104683195%"><col style="width:13.911845730027547%"><col style="width:14.18732782369146%"><col style="width:15.564738292011018%"></colgroup><tbody dir="ltr" id="_ftnref5"><tr><td> </td><td>NY</td><td>MN</td><td>CA</td><td>Model</td></tr><tr><td>When does the law go into effect?</td><td>Dec. 28, 2023</td><td>July 1, 2024</td><td>Jan. 1, 2024(Proposed)</td><td>N/A</td></tr><tr><td>What are the penalties?</td><td>Up to $500 per violation.</td><td>Up to $25k, injunctive relief, and attorneys’ fees. <a href="#_ftn1" target="_self">[1]</a></td><td>$1k–$5k per day.</td><td>Mirror state’s deceptive trade practices act.</td></tr><tr><td>Is there a written notice requirement for IRPs?</td><td>Yes.</td><td>No.</td><td>Yes.</td><td>No.</td></tr><tr><td>Are there exceptions for security-related features?</td><td>Yes.</td><td>Yes.</td><td>Yes.</td><td>No.</td></tr><tr id="_ftnref1"><td>Can an OEM provide pre-assembled parts instead of individual components?</td><td>No, unless safety issues. <a href="#_ftn2" target="_self">[2]</a></td><td>Not addressed. <a href="#_ftn3" target="_self">[3]</a></td><td id="_ftnref1">Not addressed.<a href="#_ftn4" target="_self">[4]</a></td><td>Not addressed.</td></tr><tr><td>Do repair resources need to be available for modifying DEE?</td><td>No.</td><td>No.</td><td>Not addressed.</td><td>Not addressed.</td></tr><tr id="_ftnref3"><td>Is an OEM required to divulge any trade secrets?</td><td>No.</td><td id="_ftnref2">No, with limited exceptions.<a href="#_ftn5" target="_self">[5]</a></td><td id="_ftnref3">No, with limited exceptions.<a href="#_ftn6" target="_self">[6]</a></td><td>No.</td></tr><tr id="_ftnref5"><td>Is an OEM required to license any intellectual property?</td><td>No.</td><td id="_ftnref4">No, with limited exceptions.<a href="#_ftn7" target="_self">[7]</a></td><td id="_ftnref5">No, with limited exceptions.<a href="#_ftn8" target="_self">[8]</a></td><td>Not addressed.</td></tr><tr dir="ltr"><td>Is an OEM or ARP liable for damage that occurs due to repairs performed by an IRP?</td><td>No.</td><td>No.</td><td>No.</td><td dir="ltr">No.</td></tr></tbody></table>Key Takeaways“Right to repair” laws will soon go into effect, expanding quickly into more U.S. jurisdictions. While they share many similarities, these laws can vary significantly in scope. Currently the Model Act is the broadest and offers the fewest exceptions for manufacturers, presenting significant implications for a business’s intellectual property portfolio, trade secrets, and product security features.Businesses should verify whether their products are considered DEE and fall under the scope of these laws, what compliance measures are necessary, and if those compliance measures satisfy requirements in all applicable jurisdictions. The most challenging determination is likely whether individual products are considered covered DEE in each jurisdiction. The statutory definitions are vague, with no available precedent to help determine whether products not explicitly addressed qualify.Overall, taking a proactive approach will help businesses reduce the risk of encountering unexpected “right to repair” enforcement actions. There is still time to develop effective and cost-efficient compliance strategies before these laws go into effect. Morrison Foerster’s products liability team is ready to assist in these efforts and will provide updates as future legislation and enforcement actions develop.Julie Harrison, a summer associate in Morrison Foerster’s San Diego office, contributed to this alert.<a href="#_ftnref1" target="_self">[1] </a>A violation of the Digital Fair Repair Act is a deceptive trade practice, and “[a]ll remedies, penalties, and authority granted to the attorney general under section 8.31 are available to the attorney general to enforce this section.” Minn. Stat. § 325E.72, Subd. 4 (2023).<a href="#_ftnref2" target="_self">[2]</a> No, unless “the individual components may pose a heightened safety risk if installed improperly.” N.Y. Gen. Bus. Law § 399-nn(3)(i) (McKinney 2023).<a href="#_ftnref3" target="_self">[3]</a> The MN Act is silent on this topic. Like California’s Act, Minnesota defines “part” to include “any replacement part or assembly of parts[.]” Minn. Stat. § 325E.72, Subd. 2(p) (2023).<a href="#_ftnref4" target="_self">[4]</a> The CA Act is silent on this topic. However, the CA Assembly on Privacy and Consumer Protection’s 06/23/23 Analysis stated that “the bill’s definition of ‘part’ includes an ‘assembly of parts.’ [So] if it would be hazardous for a product owner or repairperson to handle a specific component, the manufacturer can provide the component as part of a safer-to-handle assembly.” Jesse Gabriel, SB-244 Bill Analysis, CA Assembly Committee on Privacy and Consumer Protection (June 21, 2023).<a href="#_ftnref5" target="_self">[5]</a> No, “except as necessary to provide documentation, parts, and tools on fair and reasonable terms.” Minn. Chap. Law 57 Sec. 11 Subd. 5(a) (2023).<a href="#_ftnref6" target="_self">[6]</a> No, “except as necessary to comply with this section.” S.B 244, Leg. 42488.2 (c), 2023-2024 Reg. Sess. (Cal. 2023).<a href="#_ftnref7" target="_self">[7] </a>No, “except as necessary to provide documentation, parts, and tools on fair and reasonable terms.” Minn. Chap. Law 57 Sec. 11 Subd. 5(a) (2023).<a href="#_ftnref8" target="_self">[8]</a> No, “except as necessary to comply with this section.” S.B 244, Leg. 42488.2 (c), 2023-2024 Reg. Sess. (Cal. 2023).

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Right to Repair Laws: Coming Soon to a State Near You

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Consumer products businesses should know that “right to repair” laws are here to stay. Frustrated with restrictions on repairing consumer electronics, advocacy organizations spearheaded a grassroots “right to repair” movement that is gaining traction.

Right to Repair Laws: Coming Soon to a State Near You

California lawmakers are considering a bill that would limit confidentiality in cases involving allegations of defective products or environmental harms by placing restrictions on protective orders and confidentiality terms in settlement agreements.Generally, parties litigating cases alleging defective products or environmental conditions may stipulate to a protective order that governs discovery and protects the confidentiality of certain documents. Similarly, settlement agreements almost always require both parties to maintain some level of confidentiality as a condition of settlement. The ability to protect confidential information encourages early resolution, which in turn helps reduce the caseload of overburdened courts.The Public Right to Know Act (SB 1149), however, seeks to limit the parties’ ability to enter into such agreements in product liability and environmental cases in California. SB 1149, which was introduced by California State Senator Connie Leyva (D-Chino) this spring and is jointly sponsored by Consumer Reports and Public Justice, seeks to require public disclosure of factual information about an allegedly defective product or environmental condition that “has caused, or is likely to cause, significant or substantial bodily injury or illness, or death.”<a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234731187-v10-MOFO_SB_1149_Client_Alert.docx#_ftn1">[1]</a> California would join other states such as Florida and Louisiana that impose similar restrictions by statute.If passed, the bill would:<ul><li>Render provisions in settlement agreements that restrict disclosure of such factual information void and unenforceable;</li><li>Preclude courts or arbitral tribunals from entering any protective order that would seek to maintain the confidentiality of such factual information, with narrow exceptions; and</li><li>Allow any person, including a media member acting on behalf of the public, to challenge these types of confidentiality provisions so long as it is reasonably foreseeable that the restriction would affect the challenger.</li></ul>The bill provides some exceptions. A settlement provision or a protective order could still maintain confidentiality over the following:<ul><li>Settlement amount;</li><li>Medical or personal identifying information;</li><li>Citizenship or immigration status; and</li><li>Proprietary customer lists or trade secrets if the party moves the court or arbitral tribunal in good faith and demonstrates that an overriding confidentiality interest outweighs public interest in disclosure.</li></ul>The legislature recently amended SB 1149 to permit a party, including an intervenor who has become a party or a producing or testifying third party, to move for nondisclosure under the above provisions.The bill’s proponents claim to seek a balance between corporate confidentiality and promoting disclosure of evidence related to public safety. If passed, however, the bill could undermine public policy favoring early resolution and harm parties litigating these kind of cases by restricting the tools available to protect confidentiality. Protecting confidential information incentivizes parties to settle cases early. Settlements help parties avoid costly litigation and lessen burdens on courts. Without this incentive, parties would be more likely to avoid seeking early resolution and to engage in protracted litigation.Furthermore, with protective orders severely limited, discovery disputes would likely intensify, as parties defending against such allegations would seek to protect their confidential information from public inquiries.In addition, SB 1149 would place new obligations on attorneys. If passed, attorneys would have to take this legislation into account when advising clients about the scope of confidentiality permitted in settlements and in discovery. Asserting confidentiality over the underlying facts in a settlement agreement, advising a client to sign an agreement containing such a provision, or moving for a protective order that seeks to protect such information could constitute grounds for bar discipline.This bill’s passage is not a foregone conclusion. Similar legislative proposals have failed in the past, including a recent effort in 2017. If SB 1149 passes, however, parties defending in the areas of products and environmental harms could experience increased litigation costs, drawn out discovery disputes, and greater risk of exposing confidential business information.The Morrison Foerster Class Action & Mass Tort team will continue to monitor the progress of SB 1149 and provide updates as the bill proceeds through the legislature. <a href="file:///C:/Users/TLW9/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234731187-v10-MOFO_SB_1149_Client_Alert.docx#_ftnref1">[1]</a> <a href="https://legiscan.com/CA/text/SB1149/id/2520468/California-2021-SB1149-Introduced.html">SB 1149</a>.

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Confidentiality at Risk: California Legislature Considers Bill That Would Limit Scope of Confidentiality in Product Liability and Environmental Cases and Settlements

Confidentiality at Risk: California Legislature Considers Bill That Would Limit Scope of Confidentiality in Product Liability and Environmental Cases and Settlements

201123-gavel-election-briefing-tile-promo

California lawmakers are considering a bill that would limit confidentiality in cases involving allegations of defective products or environmental harms by plac