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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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.

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Right to Repair Laws: Coming Soon to a State Near You | Class Dismissed

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>Injunctive relief and attorneys’ fees.</td><td>$1k–$4k 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>Yes.</td><td>Yes.</td><td id="_ftnref1">Likely yes.<a href="#_ftn1" target="_self" id="_ftnref1">[1]</a></td><td>No.</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="#_ftn2" target="_self" id="_ftnref2">[2]</a></td><td id="_ftnref3">No, with limited exceptions.<a href="#_ftn3" target="_self" id="_ftnref3">[3]</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="#_ftn4" target="_self" id="_ftnref4">[4]</a></td><td id="_ftnref5">No, with limited exceptions.<a href="#_ftn5" target="_self" id="_ftnref5">[5]</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>Not addressed.</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" dir="ltr" id="_ftn1">[1]</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="#_ftnref2" target="_self" dir="ltr" id="_ftn2">[2]</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="#_ftnref3" target="_self" dir="ltr" id="_ftn3">[3]</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="#_ftnref4" target="_self" dir="ltr" id="_ftn4">[4]</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="#_ftnref5" target="_self" id="_ftn5">[5]</a> No, “except as necessary to comply with this section.” S.B 244, Leg. 42488.2 (c), 2023-2024 Reg. Sess. (Cal. 2023).