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 November 21, 2015, the Unmanned Aircraft Systems Registration Task Force Aviation Rulemaking Committee, chartered by the FAA, issued its Final Report to the 

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Task Force Makes Drone Registration Recommendations Expected to Be Adopted by the FAA, But on What Authority?

Task Force Makes Drone Registration Recommendations Expected to Be Adopted by the FAA, But on What Authority? | Class Dismissed

On November 21, 2015, the Unmanned Aircraft Systems Registration Task Force Aviation Rulemaking Committee, chartered by the FAA, issued its Final Report to the FAA containing the Task Force’s recommendations for how the FAA should implement a national drone registry system.  With the dueling goals of maintaining safety in the National Airspace System (NAS) while also encouraging the emergence of the nascent UAS industry, the Task Force was given a difficult job:  “develop recommendations for the creation of a registration process” for sUAS.  The Final Report is particularly timely, as somewhere between 500,000 to 1 million drones (nearly all of which will be sUAS) are expected to be sold in the United States over the upcoming holiday season.The Task Force’s RecommendationsAlthough the final report contains ample evidence of disagreement amongst the Task Force’s 25 members (which ranged from Google to DJI to Walmart), a “general consensus” was ultimately reached on the following recommendations:<ol><li>Users must fill out “an electronic registration form through the web or through an application, which would immediately provide the user with an electronic certificate of registration and a personal universal registration number for use on all sUAS owned by that person.”</li><li>The registration number must be marked on the sUAS before operations in the NAS in a way that is “readily accessible.” A user could also opt to identify the drone using the unique serial number provided by the manufacturer in lieu of using the FAA-generated registration number.</li><li>The registrant must be at least 13 years old and provide his or her name and physical address to the FAA.</li><li>Registration should encompass an “education component,” similar to Know Before You Fly.<a href="#_ftn1" name="_ftnref1">[1]</a></li><li>Drones that weigh 250 grams or less, including the aircraft, payload, and any other associated weight, would be exempted from the registration requirement.</li></ol>According to the Task Force, these recommendations will serve the goals of: (i) educating users on the safe operating rules for sUAS; (ii) linking a sUAS to the operator in the event of an incident or accident; and (iii) taking a risk-based approach to registration.Although the recommendations appear straightforward, they leave some unanswered questions.  For example, how useful will a registration number be in the event a drone actually collides with, and is completely destroyed by, a manned aircraft?  And what good is the 250 gram exemption when nearly every drone, even toys, weighs more than that?  The Task Force implicitly acknowledged these questions, but did not answer them, citing the “time-limited tasking” they were given by the FAA.Despite these questions, it is anticipated that the FAA will adopt, in large part, the Task Force’s recommendations and issue a “direct final rule” requiring registration through its “emergency” rulemaking power under the Administrative Procedure Act (APA).  In doing so, the FAA will ignore outstanding legal questions about the process by which it will issue the registration rule, as well as whether it even possesses the underlying authority to adopt the rule.The FAA’s “Emergency” RulemakingGenerally speaking, under the APA, an agency like the FAA cannot make rules without giving the public notice and an opportunity to comment on the proposed rule.  See 5 U.S.C. § 553(b).  In limited circumstances, however, an agency can forgo the standard notice-and-comment requirements and directly issue a final rule. 5 U.S.C. § 553(b)(3).  Pertinent here, when an “agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest,” the notice-and-comment period can be bypassed. 5 U.S.C. § 553(b)(3)(B).“Emergency rulemaking” usually follows situations that require immediate action (such as a national disaster), minor technical amendments that do not affect the substantive law, or instances where Congress has directed the action in legislation.  Nonetheless, the FAA is apparently considering the absence of rules regarding public registration of drones to be an “emergency,” and it appears ready to issue a final rule without allowing for public comment.Under the “good cause” exemption, the FAA itself determines whether to invoke emergency rulemaking, and challenges to the final rules can only be filed after the rules are promulgated.  Moreover, despite courts’ cautioning they will “narrowly construe” agency actions utilizing the emergency rulemaking exception, in reality the agency’s action is often left untouched.It is unlikely the FAA will try to justify emergency rulemaking by stating that the public interest is not involved (in fact, the Task Force’s Report proves the opposite).  Moreover, because the notice-and-comment requirements are presumptively applicable to all substantive rulemaking, the FAA likely will not attempt to assert that the traditional rulemaking process is “unnecessary.”  Thus, the FAA will likely try to justify this “emergency” treatment on the ground that the notice-and-comment period is “impracticable.”“Impracticable” has generally been defined to refer to a situation in which the required execution of agency functions would be unavoidably prevented by public rulemaking proceedings.  However, “time constraints” and the “imminence of a deadline” are considered “inadequate justifications to invoke the good-cause exemption, especially when it would have been possible to comply with [a] statutory deadline.”<a href="#_ftn2" name="_ftnref2">[2]</a>  Put another way, an agency cannot create its own “emergency” (intentionally or otherwise) by delaying announcement of proposed rules.That begs the question:  is the FAA’s emergency rulemaking for drone registration valid?On February 14, 2012, in the FAA Modernization and Reform Act of 2012 (the “2012 Act”), Congress instructed the FAA to issue rules for the “safe integration” of UAS by September 30, 2015.  Although the FAA has issued its Notice ofProposed Rulemaking, and comment period has closed, the FAA has yet to finalize these rules, despite nearly four years lapsing between Congress’s mandate and today.With that background, the FAA now intends to issue the Registration Rules directly within the next month, presumably before the massive influx of sUAS enters the NAS this holiday season.  If the holiday shopping “deadline” is the impetus for the FAA’s “emergency” rulemaking, it seems that the FAA is the cause of its own crisis, and its action may be vulnerable if challenged.In an analogous situation, the FAA claimed that “good cause” was present, and bypassed the notice-and-comment requirements, when promulgating Penalty Rules for violations of FAA regulations.<a href="#_ftn3" name="_ftnref3">[3]</a>  There, a private petitioner challenged the FAA’s action and a federal appellate court held that the FAA was required to follow the APA’s notice-and-comment requirements because the rule substantially affected the petitioner’s (and others’ similarly situated) substantive rights.  The Court further pointed out that the “good cause” exception should be used for “housekeeping” matters, which are traditionally thought of as purely procedural rules.  Notably, in that case, the FAA waited only 9 months to begin promulgating the rules.  Here, it has waited years.If an agency can create its own emergency to bypass the APA’s notice-and-comment requirements, public comment will effectively be optional for agencies.  This not only creates perverse incentives for agencies directed to make rules for hotly debated topics like drones to do so through emergency rulemaking in the hopes of avoiding extensive and controversial public comment, but it also, ironically, threatens to slow down the entire rulemaking process, as lawsuits will inevitably follow such actions.<a href="#_ftn4" name="_ftnref4">[4]</a>Hobbling the Hobbyists?In addition to the FAA’s procedural shortcuts, the issues of both who and what the registry would encompass present legal challenges.  Under the Task Force’s model, registration would apply to commercial and hobbyist users alike.  In addition, users wouldn’t be registering their drones with the FAA; they would be registering themselves.Traditionally, model aircraft flown for hobby or recreational purposes have not been subject to any registration requirements.  This understanding was codified under Section 336 of the 2012 Act, which provides that “notwithstanding any other provision of law relating to the incorporation of unmanned aircraft systems into Federal Aviation Administration plans and policies . . . the Administrator of the Federal Aviation Administration may not promulgate any rule or regulation regarding a model aircraft,” so long the aircraft meet certain criteria.  Congress defined “model aircraft” under Section 336 as “an unmanned aircraft that is capable of sustained flight in the atmosphere, flown within visual line of sight of the person operating the aircraft, and flown for hobby or recreational purposes.”According to the FAA, the 2012 Act does not affect its ability to require registration of drones flown for hobby or recreational purposes.  The agency’s stance is that registration has been exempted for model aircraft only through the use of its own discretion, and that prior law unrelated to the incorporation of UAS into FAA plans and policies, specifically 49 U.S.C. 44101(a), gives it the authority to require registration of model aircraft.  Notably, the Task Force recognized that, despite the FAA’s assertions, the agency may actually lack authority to require registration of drones used for hobby or recreational purposes.  Nonetheless, the Task Force did not address that issue because it was “outside the scope of the Task Force’s objectives[.]”The FAA’s position is the latest move away from its hands-off attitude towards model aircraft, dating back at least to mid-2014.  In June of last year, the FAA issued its “Interpretation of the Special Rule for Model Aircraft.”  There, the FAA claimed that model aircraft are “subject to all existing FAA regulations.”  More recently, the rules proposed in the Notice of Proposed Rulemaking for sUAS exempt various types of aircraft or flying vehicles from their ambit, such as moored balloons, kits, amateur rockets, among others, but not model aircraft.Taken together, the FAA’s actions suggest that model aircraft are likely to be subject to increasing regulation.  However, it is unclear how to reconcile the plain text of Section 336 of the 2012 Act with the FAA’s registration scheme or with the FAA’s own interpretation of Section 336, for that matter.  In the Interpretation of the Special Rule for Model Aircraft, the FAA noted that “a model aircraft operated pursuant to the terms of section 336 would potentially be excepted from a UAS aircraft certification rule[.]”  It is difficult to see how a registration requirement is different.A second and distinct question concerns whether the FAA has the authority to register people, as opposed to planes, as the Task Force recommends through its one-unique-number-per-person plan.  The FAA has stated that it has the authority to require the registration of any “aircraft” that flies in the NAS, but if a user has many unique aircraft all with the same number, it is the person, not the aircraft, that is being tracked.Other conflicts abound.  Under current law, in order to register an aircraft, the aircraft must be owned by a citizen of the United States, a lawful permanent resident, or a corporation doing business under the laws of the United States or a state.  49 U.S.C. § 44102. Yet, the Task Force recommends a rule that would not require citizenship or lawful permanent resident status.  If “aircraft” is the registration hook for the FAA, these other statutory requirements might apply to sUAS users.ConclusionThe Task Force’s recommendations appear simple enough.  But lurking beneath the surface are complicated issues of agency process and the FAA’s authority that may be primed for takeoff.  <a href="#_ftnref1" name="_ftn1">[1]</a> <a href="http://knowbeforeyoufly.org/">http://knowbeforeyoufly.org/</a>.<a href="#_ftnref2" name="_ftn2">[2]</a> 2 Am. Jur. 2d Administrative Law § 185 (2012) (emphasis added).<a href="#_ftnref3" name="_ftn3">[3]</a>Air Transport Assoc. of Am. v. Dep’t of Trans., 900 F.2d 369 (D.C. Cir. 1990) (“[T]he FAA is foreclosed from relying on the good cause exception [from the APA,] by its own delay in promulgating the Penalty Rules. The agency waited almost nine months before taking action to implement its authority under section 1475. At oral argument, counsel for the FAA conceded that the delay was largely a product of the agency’s decision to attend to other obligations. We are hardly in a position to second guess the FAA’s choices in determining institutional priorities. But insofar as the FAA’s own failure to act materially contributed to its perceived deadline pressure, the agency cannot now invoke the need for expeditious action as “good cause” to avoid the obligations of section 553(b).”).<a href="#_ftnref4" name="_ftn4">[4]</a>  Another potential problem for the FAA is Executive Order 12866, which requires agencies to complete a cost- benefit analysis for rules that, among other things, raise novel legal or policy issues.  Given that drone registration will likely raise both novel legal and policy issues, such an analysis may be required.