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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MAHA Commission Publishes Report to Highlight Childhood Chronic Disease Drivers

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

Setting Consumer Standards for Lithium-Ion Batteries Act

The Future of Food: Exploring the World of Cell-Cultivated Cuisine

New California Law Redefines E-Bikes

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For the second time, an Illinois federal judge powered down a proposed class action against VTech Electronics following a 2015 data breach of its internet-connected digital learning toys. The data breach also triggered separate allegations by the Federal Trade Commission (FTC) that VTech violated federal children’s privacy laws.Both developments illustrate the increasing exposure that the Internet of Things brings when consumer product manufacturers collect and store consumers’ personal data with connected devices. They also demonstrate how the need to address these issues upfront is imperative.VTech Toy Data Breach Class Claims Dismissed AgainIn In re VTech Data Breach Litigation, Case No. 1:15-cv-10889 (N.D. Ill. 2018), Plaintiffs sought to represent a class of consumers who purchased VTech’s digital learning devices.  Their claims arose after a hacker lifted personally identifiable information affecting 4.8 million adult accounts and 6.3 million child profiles linked to the devices.  Plaintiffs alleged that VTech broke promises to consumers because of its inadequate data-protection measures and subsequent suspension of online services accompanying the devices.The court disagreed. It had dismissed the suit once before on multiple grounds, including lack of standing to show future harm and failure to state a claim.  In granting VTech’s motion to dismiss for the second time, the court rejected Plaintiffs’ arguments that VTech spurned any implied promises it made to consumers at the time of purchase.The court reasoned that the alleged promises must be controlled by the express terms and conditions consumers agreed to when first using VTech’s online services post-sale. However, Plaintiffs failed to allege that VTech breached the express online service terms or the incorporated Privacy Policy that governed the device’s internet features.Plaintiffs also asserted that VTech’s online service suspension rendered the toy devices essentially useless in breach of the implied warranty of merchantability. VTech countered that Plaintiffs could not show that anything was actually wrong with the toys themselves or that users could never access the online services.  The court agreed with VTech, finding these pleading defects fatal to Plaintiffs’ claim.Finally, the court dismissed without prejudice Plaintiffs’ remaining allegations for unfair and deceptive business practices for failing to meet the heightened pleading requirement for fraud-based claims and dismissed the unjust enrichment claims on choice-of-law grounds.FTC Brings First Enforcement Action Under COPPA Involving Children’s IoT DevicesWhile the proposed class action sat in Illinois district court, the FTC filed a complaint against VTech in the FTC’s first children’s privacy case involving IoT toy products under the Children’s Online Privacy Protection Act (COPPA).Under COPPA, companies that collect personal information online from children under 13 must take reasonable steps to protect children’s data, including providing direct notice to parents that the device collects such information and obtaining their consent. The FTC claimed VTech failed to take these steps.The FTC also alleged that VTech’s Privacy Policy falsely stated that consumers’ personal information would be encrypted when in fact it was not.VTech settled with the FTC for $650,000 and agreed to implement a comprehensive data security program to ensure future compliance with COPPA and to protect consumers’ personal information.Implementing Effective Cybersecurity MeasuresVTech’s case—albeit a favorable result compared with its potential exposure—highlights the importance of implementing sound data privacy and security measures in consumer IoT devices as courts, federal regulators, and industry leaders grapple with <a href="https://classdismissed.mofo.com/consumer-products/connected-devices-bring-new-product-liability-challenges/">the interplay between cybersecurity and product liability</a>.For example, the Consumer Product Safety Commission (CPSC) will hold a <a href="https://classdismissed.mofo.com/consumer-products/cpsc-will-sharpen-its-focus-on-iot-in-upcoming-public-hearing-about-internet-connected-devices/">public hearing</a> on May 16, 2018, to discuss potential safety issues and hazards associated with IoT consumer products.As they continue to churn out internet-connected consumer products, IoT companies face increasing litigation risk from data breaches, privacy-related claims, and regulatory enforcement actions. Bringing in specialists to address these issues before they arise will reduce the inherent risks associated with IoT consumer products.

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

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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Digital Toy Product Company Ducks Data Breach Class Action

Thank You, Next Enforcement: Music Video App Violates COPPA, Will Pay $5.7 Million

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For the second time, an Illinois federal judge powered down a proposed class action against VTech Electronics following a 2015 data breach of its internet-conne

Digital Toy Product Company Ducks Data Breach Class Action

On June 19, 2017, the U.S. Supreme Court issued a decision that has the potential to reshape the way class actions are litigated in courts throughout the country. In Bristol-Myers Squibb Co. v. Superior Court of California,[1] or BMS, the court clarified the scope of specific personal jurisdiction in the context of a mass tort action brought in California state court. Since that decision, some defendants have attempted to use BMS as a sword in response to putative nationwide class actions, with varying levels of success. No circuit court has yet to weigh in on the question of whether BMS applies in the class action context. But even if courts begin to consistently dismiss putative nationwide classes on BMS grounds, filing a motion to dismiss for lack of personal jurisdiction may not always be the best strategic and business decision for defendants.Please see our full article as published in <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt42545a4026ffe024/6273152b4d9f892971290137/180425-law360-bristol-myers-squibb.pdf">Law360</a>.

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

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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 mat

Claudia Vetesi

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

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Bristol-Myers Squibb: A Dangerous Sword

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On June 19, 2017, the U.S. Supreme Court issued a decision that has the potential to reshape the way class actions are litigated in courts throughout the countr

Bristol-Myers Squibb: A Dangerous Sword

You’ve created a great product and built a valued brand. You’ve devoted countless hours to building relationships with key distributors and retailers, designing attractive packaging, and forging a social media presence. But are you doing everything to ensure that your business is set up for sale? Have you taken the steps to address the potential pitfalls—those issues that will reduce the value of your company in a sale or even scare away potential buyers? If you address these 10 key issues as you build your company, you will be positioning your company for a value-maximizing sale.

KISS

U.S. Silica Holdings, Inc.

Ascendent Capital Partners

Astellas 

Qatalyst Partners/Multiple Transactions

Southwest Gas

Axalta

Winterhawks Sports Group

Vimian Group AB/Multiple Transactions

Fidelio Capital/Multiple Transactions

Odevo AB/Multiple Transactions

Verdane

Global Co-Chair of M&A Practice

Spencer Klein

Here’s the Recipe: How to Ensure Your Food and Beverage Company Will Be Ready for a Value-Maximizing Sale