Morrison Foerster’s Class Dismissed blog provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class actions lawsuits and product liability issues that affect consumer-facing companies. Through Class Dismissed, attorneys from our nationally recognized Consumer Class Action and Products Liability practices offer a real-time assessment of the developments in matters that are shaping the industry. This blog examines the full spectrum of consumer-related class action and product liability lawsuits ranging from false advertising, privacy, consumer product safety, ADA, food misbranding, TCPA, environment, retail, and government actions as well as nationwide and multidistrict litigation class actions.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

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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 United States Supreme Court has repeatedly declined to resolve a question that has sharply divided the Circuits: whether a class may be certified even thoug

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Relief for the Unharmed: Supreme Court Considers Whether Article III & Rule 23 Permit Certification Where Most Class Members are Uninjured (Ramirez v. TransUnion)

Relief for the Unharmed: Supreme Court Considers Whether Article III & Rule 23 Permit Certification Where Most Class Members are Uninjured (Ramirez v. TransUnion) | Class Dismissed

Lena Gankin

The United States Supreme Court has repeatedly declined to resolve a question that has sharply divided the Circuits: whether a class may be certified even though it contains uninjured members. See e.g., Tyson Foods, Inc. v. Bouaphakeo et.al., 136 S. Ct. 1036, 1050 (2016). On March 30, 2021, the Supreme Court heard argument on related issues in TransUnion LLC v. Ramirez, No. 20-297, a case with potentially significant implications for parties embroiled in class action lawsuits.The question certified by the Supreme Court was: “Whether either Article III or Federal Rule of Civil Procedure 23 permits a damages class action when the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.”Case BackgroundRamirez v. TransUnion arose in 2011, when Sergio Ramirez visited a California car dealership with his wife and father-in-law looking to buy a car. The dealership pulled Mr. Ramirez’s credit report and informed him that they could not sell him a car because Mr. Ramirez’s name was on a “terrorist list.” Mr. Ramirez’s TransUnion credit report indicated that Mr. Ramirez’s name was a match to one listed on a database maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), which identifies terrorists, individuals who pose threats to national security, and international drug or weapons traffickers. Mr. Ramirez was “embarrassed, shocked, and scared.”The next day, Mr. Ramirez requested a copy of his credit report and received two separate mailings from TransUnion: the first mailing included his credit file along with a summary of rights required by law, and the second was a letter, unaccompanied by an additional summary of rights, alerting Mr. Ramirez that his name “is considered a potential match to information listed on the [OFAC] database.” After receiving the mailings, and out of an abundance of caution, Mr. Ramirez cancelled an upcoming vacation. Mr. Ramirez brought suit against TransUnion, alleging three violations of the Fair Credit Reporting Act (“FCRA”). Mr. Ramirez alleged that TransUnion failed to maintain reasonable procedures to assure maximum possible accuracy of the information about him when preparing a consumer report, violated obligations to consumers to provide “all” information upon request (because the OFAC information came to him in a separate mailing) and violated its obligation to provide consumers with a summary of their rights. The Northern District of California certified the case as a class action that included everyone who, in a six-month period, requested and received a copy of their credit report, sent in two contemporaneous but separate mailings, and showing that the individual’s name was a potential match to a name on the OFAC list.At trial, the jury heard only Mr. Ramirez’s story. Mr. Ramirez introduced no evidence that anyone else in the class suffered a credit denial or other adverse consequence as a result of the OFAC name-match appearing on their credit report. Mr. Ramirez stipulated that more than 75% of the members of the class never even had a credit report showing a potential name match disseminated to a third party during the relevant class period. Nevertheless, the jury found for the class on all claims and awarded statutory and punitive damages totaling over $60 million.On appeal, a divided Ninth Circuit held for Mr. Ramirez and found that the entire class had standing, because the “material risk of harm” conferred standing on even the members of the class whose credit reports were not disseminated to third parties.The Written ArgumentsIn the weeks prior to the Supreme Court argument, TransUnion, Mr. Ramirez and a number of amici — including the Chamber of Commerce — submitted briefs to the court.TransUnion argued that the lower court erred in certifying the class for at least two reasons. First, uninjured class members did not have Article III standing, as there was no evidence that any class member other than Mr. Ramirez even opened and read the mailings from TransUnion, let alone experienced any injury on account of information in the mailings regarding an OFAC name match. Second, TransUnion argued that Mr. Ramirez was an atypical class member with a uniquely sympathetic experience, as compared to other class members who TransUnion alleged “suffered at most a technical violation and some minor confusion in the privacy of their own homes.”Mr. Ramirez argued that all class members were injured because all members suffered a material risk of harm given that TransUnion made the reports available to creditors and employers and the OFAC information in the reports was both highly sensitive and distressing in nature. Furthermore, Mr. Ramirez argued that he was typical of the class as defined and that it was of no consequence that he suffered additional concrete harm as a result of TransUnion’s mailings.  The Chamber of Commerce submitted a brief in support of TransUnion, arguing that the uninjured class members lacked Article III standing and Mr. Ramirez was atypical of the class. As argued by the Chamber of Commerce, “an affirmance [of the Ninth Circuit’s holding] would embolden [enterprising] lawyers to seek out atypical clients in order to leverage their uniquely sympathetic experiences into a multimillion-dollar damages award or settlement — all based on technical statutory violations and all without having to show that the class they represent has suffered concrete injuries that the members could have brought in court themselves.” In such a scenario, an atypical plaintiff pursuing statutory damages may be able to garner a remedy disproportionate to the actual harm suffered by the vast majority of the class.  The Oral ArgumentsAt oral argument, the Justices took up the issues of whether, given that the majority of class members never had their credit reports disseminated to third parties, the class should have been certified, and whether Mr. Ramirez was typical of the class.Justices Alito, Gorsuch, Kavanaugh, and Barrett signaled skepticism toward the idea that class members whose credit reports were not disseminated had Article III standing, given that they may not have even known that their credit reports contained an OFAC alert, let alone suffered consequences akin to those suffered by Mr. Ramirez. As argued by counsel for TransUnion, members of the class whose credit reports were not disseminated should have “brok[en] out the champagne, not [broken] out a lawsuit.” Similarly, Justice Barrett asked whether, for these class members, there had been “no harm, no foul,” and Justice Kavanaugh analogized that “inaccurate information [fell] into a database,” but didn’t make a sound.Chief Justice Roberts offered potentially conflicting observations on the standing issue. He opined that class members whose credit reports were not disseminated had “sufficient standing to at least [clear their credit reports] up,” even if their “damages aren’t terribly significant . . .” However, he also asked what the concrete injury would be in a hypothetical case where Congress passed a law providing statutory damages to anyone driving within a quarter mile of a drunk driver but a suit was brought by a plaintiff who, for days, was unaware of his or her proximity to the drunk driver. Justice Thomas took a different approach, asking simply whether counsel for Mr. Ramirez agreed that all members of the class were required to have standing; counsel conceded that they were.Although most of the Justices focused primarily on the injury and standing questions, Justices Breyer and Sotomayor focused their questions on typicality. While they suggested that Mr. Ramirez’s claims were typical of the class, the two Justices noted that if TransUnion believed Mr. Ramirez’s injuries to be atypical, TransUnion should have so argued at trial, where the jury heard only from Mr. Ramirez. Assistant Solicitor General Nicole Reaves similarly honed in on typicality, arguing that all class members had standing, but that the Court should remand the case for a determination of whether Mr. Ramirez’s injuries were (and therefore Mr. Ramirez was) typical of the class.ImplicationsTransUnion presents an extreme case—the vast majority of class members arguably suffered no injury, while the named plaintiff suffered atypical and significant injury. Of broader interest, however, the Court’s decision may offer insight into how the Court as presently constituted will approach the issue of standing and class certification for uninjured class members. TransUnion may also address for the first time the implications for class certification where the class representative experienced a materially different, and more severe, injury than all or most other class members. Morrison & Foerster will continue to follow this case.