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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Associate

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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Software Gains New Status as a Product Under Strict Liability Law

MAHA Commission Publishes Report to Highlight Childhood Chronic Disease Drivers

Tenth Circuit Denies Challenge to CPSC Rule Regulating High-Powered Magnets

Ousted CPSC Democrats Fight Back Against President Trump

Setting Consumer Standards for Lithium-Ion Batteries Act

LinkedIN

We have seen a flurry of significant legislative developments in California this month related to artificial intelligence (AI). The California legislature, at the conclusion of its 2023–2024 legislative session in August, approved and sent several AI bills to Governor Gavin Newsom for his signature. The governor has now vetoed one bill (SB-1047) and signed into law several others. In vetoing SB-1047, the governor <a href="https://www.gov.ca.gov/wp-content/uploads/2024/09/SB-1047-Veto-Message.pdf" target="_blank">signaled</a> that a “California-only” approach to regulating AI models may be warranted, “especially absent federal action by Congress,” leaving open the door to additional legislation.Read the full <a href="https://www.mofo.com/resources/insights/241001-ai-flash-update-california-governor" target="_blank">client alert</a>.

Fertility Center Litigation

Fitbit

MicroPort

Leading Healthcare, Pharmaceutical, and Medical Device Company

Lethal Injection Matters – Major Pharmaceutical Company

Pain Pump Matters – Large Pharmaceutical Company

Major Technology Company

Leading Chemical Company

Security Device Company

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

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Tessa J. Schwartz, partner, has extensive experience in complex intellectual property and technology law, copyright law, and patent litigation. Tessa is also the founder and co-chair of the firm’s Artificial Intelligence Group.

Tessa J. Schwartz, partner, has extensive experience in complex intellectual property and technology law, copyright law, and patent litigation.

Tessa Schwartz

Tessa Schwartz has an active practice counseling companies on intellectual property and technology transactions issues, and negotiating complex intellectual property and commercial agreements.

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Marian Waldmann Agarwal is a partner in the Privacy + Data Security Group at Morrison Foerster. She also co-leads the firm’s Artificial Intelligence Group and is a member of the global Environmental, Social, and Governance (ESG) Steering Committee.

Marian Waldmann Agarwal

Marian A. Waldmann Agarwal

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Senior Privacy Advisor

Cynthia Rich is a senior advisor in the Washington office of Morrison & Foerster LLP. As a member of the firm's international Privacy and Data Security Practice since 2001, Ms. Rich works with clients

Cynthia J. Rich

Cynthia Rich

AI Flash Update: California Governor Decides Fate of Key AI Bills

Product Liability

Consumer Products

In early May 2024, the New Civil Liberties Alliance (NCLA) <a href="https://nclalegal.org/wp-content/uploads/2024/05/2024.05.09-Litigation-Hold-Letter-to-CPSC-re-Dreamland-Baby.pdf" target="_blank">notified</a> the U.S. Consumer Product Safety Commission (CPSC) that it intended to file suit against CPSC and CPSC Commissioner Richard Trumka for allegedly violating the constitutional and statutory rights of its client, Dreamland Baby Co. (“Dreamland”), by making disparaging statements about Dreamland’s products to the general public and retailers.Dreamland manufactures baby and toddler sleep products, including weighted sleep sacks. According to Dreamland, the sleep sacks are designed to help babies fall asleep faster and stay asleep longer by evenly distributing weight across their bodies. Dreamland has reportedly been working with the American Society for Testing and Materials and other industry members to develop a voluntary safety standard for wearable blankets and swaddles that would cover Dreamland’s products.Commissioner Trumka sought to create a mandatory standard to address possible risks associated with weighted infant sleep products. He wanted CPSC to update all safe sleep messaging and guidance to incorporate recent advice from the Centers for Disease Control and Prevention and National Institutes of Health on such products. The CPSC has never enacted a federal ban on weighted sleep products, and it rejected Commissioner Trumka’s proposal in a 3-1 vote in November 2023. In voting against Commissioner Trumka’s amendment, CPSC Chairman Alexander Hoehn-Saric explained that he did not believe CPSC staff had yet conducted the necessary research to be in a position to draft a proposed rule in 2024.On April 15, 2024, Commissioner Trumka issued a statement titled “Beware: Weighted Infant Swaddles and Blankets are Unsafe for Sleep; Retailers Should Consider Stopping Sales,” and sent letters to multiple retailers of wearable blankets and swaddles. NCLA contends these statements disparaged wearable weighted blankets and swaddles and blamed such products for causing infant deaths. According to NCLA, several retailers stopped selling Dreamland’s products following Commissioner Trumka’s statements and letters, which Dreamland says has impacted its ability to continue operating. Dreamland alleges that major retailers stopped selling Dreamland’s products within days of receiving Commissioner Trumka’s letter.NCLA announced its plans to sue CPSC on May 9, 2024, in a letter alleging that Commissioner Trumka “circumvented the CPSA’s carefully crafted processes by effectively orchestrating a stop sale of Dreamland’s lawful products.” In a <a href="https://nclalegal.org/press_release/ncla-plans-to-sue-cpsc-over-commr-trumkas-illegal-efforts-to-stop-sales-of-weighted-sleep-sacks/" target="_blank">press release</a> dated May 9, 2024, NCLA added that Commissioner Trumka’s actions “disregard the Consumer Product Safety Act’s required rulemaking processes, preference for voluntary standards, and show impermissible bias against Dreamland.”Dreamland, along with other manufacturers of weighted baby products, have defended their safety to consumers. Manufacturers like Nested Bean, another company that creates infant weighted sleepwear, have assured consumers that there is no investigation related to the company’s products, and there have been no fatalities linked to the products in question.As of July 10, 2024, NCLA has yet to file suit against CPSC on behalf of Dreamland. As CPSC pushes to try to leverage the tools and authority at its disposal to continue its aggressive enforcement measures, this case, if litigated, will provide important clarification for consumer product manufacturers and retailers about the scope of CPSC’s authority. We will continue to monitor the case and provide ongoing updates.

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

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Rachel Kaiser is an associate in the Litigation Department of Morrison Foerster’s San Diego office.

Rachel A. Kaiser

Rachel Kaiser

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In early May 2024, the New Civil Liberties Alliance (NCLA) notified the U.S. Consumer Product Safety Commission (CPSC) that it intended to file suit against CPSC and CPSC Commissioner Richard Trumka for allegedly violating the constitutional and statutory rights of its client, Dreamland Baby Co. (“Dreamland”), by making disparaging statements about Dreamland’s products to the general public and retailers.

New Civil Liberties Alliance Alleges CPSC and Commissioner Trumka Exceeded Authority and Plans to File Suit

CPSC

Lithium-ion batteries are rechargeable batteries, commonly found in devices used every day, including cell phones, e-cigarettes, and laptops. Lithium-ion batteries are also found in electric vehicles, e-scooters, and other micro-mobility vehicles.The National Fire Protection Association (NFPA), a nonprofit organization that seeks to eliminate injuries and deaths caused by fire hazards, heavily emphasized lithium-ion battery safety at its 2024 annual conference, featuring educational sessions and workshops focused on the fire risks associated with lithium-ion batteries. <a href="https://www.nfpa.org/Education%20and%20Research/Home%20Fire%20Safety/Lithium-Ion%20Batteries" target="_blank">According to the NFPA</a>, while lithium-ion batteries “provide an effective and efficient source of power, the likelihood of them overheating, catching on fire, and even leading to explosions increases when they are damaged or improperly used, charged, or stored.”Specific emphasis was placed on lithium-ion batteries found in e-bikes and other micro-mobility devices at the NFPA conference. According to the NFPA, the New York Fire Department reported more than 130 fires started by e-bikes or e-scooters—up from just 13 in 2019—which led to five deaths.Lithium-ion batteries, including the ones found in most electric vehicles, are susceptible to a reaction called thermal runaway, a process in which the lithium-ion cell heats up uncontrollably in a matter of seconds, which can cause the battery to catch fire or explode. These potential issues presented by damaged or defective lithium-ion batteries create significant exposure to regulatory and litigation risk for manufacturers and retailers of consumer products containing lithium-ion batteries.The Consumer Product and Safety Commissions (CPSC) has also increased its focus on and scrutiny of lithium-ion battery safety in e-bikes and other micro-mobility devices. In its <a href="https://www.mofo.com/resources/insights/240319-cpsc-at-icphso-2024-enforcement-priorities" target="_self">2024 Operating Plan</a>, CPSC noted its plan to propose mandatory safety standards for lithium-ion batteries in micro-mobility products and enforce existing regulations.Lawmakers have also taken steps to regulate the possible risks posed by lithium-ion batteries in micro-mobility devices. For example, the Chicago City Council committee has <a href="https://chicago.suntimes.com/city-hall/2024/06/05/electric-bikes-scooters-lithium-batteries-fire-hazard-city-council-regulations" target="_blank">called for an ordinance</a> that would permit fines for distributing devices with lithium-ion batteries that do not meet safety certifications. Rhode Island <a href="https://www.wpri.com/news/politics/new-legislation-would-allocate-funding-for-lithium-ion-battery-fire-response-training/#:~:text=COVENTRY%2C%20R.I.%20(WPRI)%20%E2%80%94,the%20Rhode%20Island%20Fire%20Academy.">introduced a bill</a> that would increase funding to the state’s fire academy for specialized lithium-ion battery response training. And New York <a href="https://www.nyc.gov/site/dca/news/044-23/city-reminds-retailers-consumers-only-purchase-certified-lithium-ion-batteries-mobility#:~:text=Following%20a%20brief%20period%20of%20education%2C%20businesses%20that,use%20unless%20those%20devices%20are%20resold%20or%20rented." target="_blank">recently passed a law</a> that bans the sale, rental, or distribution of e-mobility devices containing batteries that have not been certified by a nationally recognized testing lab.It seems inevitable that federal, state, and local regulations will continue to tighten around the use of lithium-ion batteries in consumer products. Manufacturers should prepare for stricter regulations in the near future by monitoring regulatory updates and ensuring compliance with applicable existing voluntary standards. We will continue to monitor new regulations and provide ongoing updates.

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Lithium-Ion Battery Safety Heavily Featured at 2024 NFPA Conference

Consumer Product Safety Enforcement To Heat Up Under Biden Administration

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Lithium-ion batteries are rechargeable batteries, commonly found in devices used every day, including cell phones, e-cigarettes, and laptops. Lithium-ion batteries are also found in electric vehicles, e-scooters, and other micro-mobility vehicles.

Lithium-Ion Battery Safety Heavily Featured at 2024 NFPA Conference

Retail

In this final installment of our series (see <a href="https://www.mofo.com/resources/insights/240319-cpsc-at-icphso-2024-enforcement-priorities">part 1</a>, <a href="https://www.mofo.com/resources/insights/240320-cpsc-at-icphso-office-of-compliance-activity">part 2</a>, and <a href="https://www.mofo.com/resources/insights/240321-cpsc-at-icphso-e-commerce-platforms">part 3</a>) discussing CPSC’s presence at the 2024 International Consumer Product Health and Safety Organization’s annual symposium, we present two smaller, but important, CPSC updates: Implementation of Reese’s Law and the upcoming mandatory eFiling requirements for importers.Read the <a href="https://www.mofo.com/resources/insights/240322-cpsc-at-icphso-reeses-law" target="_self">full client alert</a>.

CPSC at ICPHSO: Reese’s Law and Mandatory eFiling Requirement

CPSC at ICPHSO: Reese’s Law and Mandatory eFiling Requirement



In this final installment of our series (see part 1, part 2, and part 3) discussing CPSC’s presence at the 2024 International Consumer Product Health and Safety Organization’s annual symposium, we present two smaller, but important, CPSC updates: Implementation of Reese’s Law and the upcoming mandatory eFiling requirements for importers.

This third installment of our series (see <a href="https://www.mofo.com/resources/insights/240319-cpsc-at-icphso-2024-enforcement-priorities">part 1</a> and <a href="https://www.mofo.com/resources/insights/240320-cpsc-at-icphso-office-of-compliance-activity">part 2</a>) highlights regulators and other stakeholders’ growing focus on e-commerce platforms’ role in protecting consumers from unsafe products, as the percentage of online consumer product sales continues to increase. In addition to CPSC representatives, many other symposium presenters and panelists discussed this issue at the International Consumer Product Health and Safety Organization’s 2024 annual symposium.Read the <a href="https://www.mofo.com/resources/insights/240321-cpsc-at-icphso-e-commerce-platforms" target="_self">full client alert</a>.

CPSC at ICPHSO: E-Commerce Platforms and Product Safety Responsibilities