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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On August 17, 2017, the Second Circuit Court of Appeals vacated a district court’s denial of Uber’s and Mr. Travis Kalanick’s motions to compel arbitration in a

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Second Circuit Scraps District Court’s Denial of Uber’s Motion to Compel Arbitration

Second Circuit Scraps District Court’s Denial of Uber’s Motion to Compel Arbitration | Class Dismissed

On August 17, 2017, the Second Circuit Court of Appeals vacated a district court’s denial of Uber’s and Mr. Travis Kalanick’s motions to compel arbitration in a case involving price-fixing accusations.  In Meyer v. Kalanick, No. 16-2750 (2d Cir. Aug. 17, 2017), the Second Circuit held, as a matter of law, that plaintiff Spencer Meyer received objectively reasonable notice of the terms of service and unambiguously assented by clicking “register” on his smartphone when he signed up to use Uber’s services.  The Second Circuit also remanded for consideration of whether Uber and Mr. Kalanick waived the right to compel arbitration by defending the lawsuit.This was a heavily watched case with amici support on both sides.  The foes of arbitration hoped to use Meyer to call into question the viability of all click-through protocols that many companies use for their terms and conditions, not just Uber.Background of the Case.  In 2015, Mr. Meyer, on behalf of a putative class of Uber riders, filed an action against Mr. Kalanick, alleging that the Uber App allows drivers to fix prices amongst themselves, in violation of the Sherman Act, 15 U.S.C. § 1, and the Donnelly Act, N.Y. Gen. Bus. Law § 340.  Uber was subsequently joined as a defendant in 2016.  Uber and Mr. Kalanick filed motions to compel Meyer to arbitrate.  Judge Rakoff of the Southern District of New York denied the motions, concluding that Mr. Meyer did not have reasonably conspicuous notice of the terms of service and did not unambiguously manifest assent to the terms.  See Meyer v. Kalanick, 200 F. Supp. 3d 408, 420 (S.D.N.Y. 2016).  The district court did not reach Meyer’s other defenses to arbitration, including whether defendants waived their right to arbitrate by actively participating in the litigation.The District Court’s Determinations Were Subject to De Novo Review.  Plaintiff argued that the Second Circuit was limited to clear-error review of the district court’s findings and legal conclusions.  The Second Circuit disagreed, finding that it would review de novo the denial of a motion to compel arbitration.  While factual findings upon which a conclusion was based would be reviewed for clear error, the facts in Meyer were undisputed.Beyond “Clickwrap” and “Browsewrap.” The court discussed web-based contracts, noting that it had previously distinguished web-based contracts as either “clickwrap” or “browsewrap” agreements.  “Clickwrap” agreements, which courts routinely uphold, require a user to click an “I agree” box after being presented with the terms and conditions of use.  “Browsewrap” agreements, on the other hand, generally post terms and conditions on a website via a hyperlink at the bottom of the screen.  Because no affirmative action is required in “browsewrap” agreements, the determination of the validity of these agreements depends on whether the user has actual or constructive knowledge of the terms and conditions.  The Second Circuit noted, however, that not all interfaces would fit neatly into the “clickwrap” or “browsewrap” categories.  As such, classification of web-based contracts would not resolve the notice inquiry. The Parties Mutually Assented to the Agreement.  Under California law, the Second Circuit considered whether the undisputed facts established that there was: (1) reasonably conspicuous notice of the existence of contract terms; and (2) unambiguous manifestation of assent to those terms.  Analyzing Uber’s agreement, the court found both requirements were established.In analyzing the first requirement, the court considered “the perspective of a reasonably prudent smartphone user.”  Looking at the interface at issue in the case, the court concluded that the design of the screen and language used rendered the notice provided reasonable as a matter of law.  First, the registration payment screen was uncluttered.  The text on that screen advised Uber users that “By creating an Uber account, you agree to the TERMS OF SERVICE & PRIVACY POLICY.”  This text, along with a hyperlink to the terms of service, appeared directly below the buttons for registration.  Even more, the entire screen was visible without scrolling.  Finally, although the text was in a small font, its dark print contrasted with the bright white background, and the hyperlinks were in blue and underlined.The court also found that the fact that the terms of service were available by hyperlink did not preclude a determination of reasonable notice because the hyperlinked text was reasonably conspicuous.  Additionally, the court disagreed with the district court’s determination that the location of the arbitration clause within the terms of service was itself a “barrier to reasonable notice.”  Accordingly, the Uber App provided reasonably conspicuous notice as a matter of law.In analyzing the second requirement, the court found that although Meyer’s assent to arbitration was not express, it was unambiguous in light of the objectively reasonable notice of the terms.  A reasonable user would know that, by clicking the registration button, he or she was agreeing to the terms and conditions accessible via the hyperlink.  Plaintiff argued that the fact that clicking the register button had two functions—creation of a user account and assent to the terms of service—rendered plaintiff’s assent ambiguous.  The court disagreed.  The physical proximity of the notice  regarding the terms of service to the register button made clear to a user that the linked terms pertained to the action the user was about to take.The court concluded that, as a matter of law, Meyer agreed to arbitrate his claims with Uber.The District Court Would Decide the Issue of Waiver.  Plaintiff argued in the alternative that defendants waived their right to arbitrate by actively litigating the underlying lawsuit.  Although a defense of waiver would normally be decided by the arbitrator, the court found that, here, the district court could properly decide the question because defendants had participated in litigation.  As such, the court remanded the case to the district court to consider whether defendants had waived their right to arbitrate.The court’s decision signals what factors at least one Court of Appeal will consider in determining the validity of consent in hybrid agreements—those agreements that don’t fall expressly into the “clickwrap” or “browsewrap” categories.  It also confirms the validity of the electronic registration process used by Uber and many other companies.Request to amend its opinion denied.  On Tuesday, August 29, 2011, the Second Circuit denied Plaintiff’s motion to have the Second Circuit amend its August 17, 2017 opinion.  Plaintiff requested that the Second Circuit include language in its opinion stating that the district court could consider the extent to which Plaintiff may have been unable to see Uber’s Terms of Service hyperlink (an argument made by plaintiff in Metter v. Uber Technologies, Inc., Case No. 3:16-cv-06652-RS).  The Court denied the motion without prejudice to Plaintiff raising the issue in the district court in the first instance.