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

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Partner

Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

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Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

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

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Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

Zak is an associate in the Litigation Department in Morrison Foerster’s New York office.Zak’s practice focuses on class actions, commercial litigation, white collar defense, government investigations, and antitrust litigation and counseling. He has represented clients before federal and state courts in complex commercial matters, as well as in arbitration tribunals.Zak received his J.D. from New York University School of Law in 2018, where he was inducted into the Order of the Barristers. During law school, Zak also served as the Marden executive editor for the NYU Law Moot Court Board. In 2013, Zak received his B.A. and M.A. in political science from Yale University, receiving honors in his major and the Ellsworth Prize for Best Senior Essay in the Social Sciences.

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Associate

Zak Newman

Mitchell A. Hokanson is an associate in the Litigation Department of Morrison Foerster’s San Diego office.Mitchell’s practice focuses on commercial litigation and consumer class actions. He has extensive experience with civil litigation, including managing day-to-day strategy, propounding and responding to discovery, taking and defending depositions, and engaging in motion practice. He also has experience providing regulatory advice to clients, including pro bono partners and multinational corporations. Mitchell maintains an active pro bono practice.After law school, Mitchell worked as a judicial clerk for Justice Susan M. Carney of the Alaska Supreme Court, where he drafted bench memoranda and opinions on a wide range of state and federal law topics. Prior to joining MoFo, Mitchell worked for another international law firm, where he was a member of the Complex Civil Litigation practice group, in Los Angeles, California.Mitchell received his J.D. from Columbia Law School, where he was honored as a James Kent Scholar and Harlan Fiske Stone Scholar. While in law school he was the senior executive editor of the Columbia Journal of Environmental Law and worked as a judicial intern for Judge Sandra S. Ikuta of the United States Court of Appeals for the Ninth Circuit and Judge George B. Daniels of the United States District Court, Southern District of New York. Prior to that, Mitchell earned his B.A. from Stanford University.

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Mitchell Hokanson

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MAHA Commission Publishes Report to Highlight Childhood Chronic Disease Drivers

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

Setting Consumer Standards for Lithium-Ion Batteries Act

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

New California Law Redefines E-Bikes

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In the final installment of our Privacy Litigation Year in Review series, we focus on important developments in TCPA litigation. Following the Supreme Court’s adoption of a narrow definition of “autodialers” (ATDS) in the 2021 case Facebook v. Duguid, courts across the country have continued to interpret that seminal decision. While the full impact of Duguid remains to be seen, guidance from several federal courts of appeals has begun to emerge regarding what systems actually qualify as autodialers, providing more certainty and predictability for businesses engaged in telephone and text marketing campaigns.Read our <a href="https://www.mofo.com/resources/insights/230209-privacy-litigation-2022-year-in-review-tcpa-litigation?utm_source=publication&utm_medium=email" target="_blank">client alert</a>.

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.

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Tiffani B. Figueroa is a partner in the Litigation Department and is based in Morrison Foerster’s New York office. Her practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Tiffani B. Figueroa

Tiffani Figueroa

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Privacy Litigation 2022 Year in Review: TCPA Litigation

Privacy Litigation 2020 Year in Review: Data Breach Litigation

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In the final installment of our Privacy Litigation Year in Review series, we focus on important developments in TCPA litigation. Following the Supreme Court’s adoption of a narrow definition of “autodialers” (ATDS) in the 2021 case Facebook v. Duguid, courts across the country have continued to interpret that seminal decision. 

Privacy Litigation 2022 Year in Review: TCPA Litigation

Nearly one year after Florida <a href="https://www.mofo.com/resources/insights/210706-tcpa-like-florida-law-takes-effect.html">introduced</a> a law that imposes broad prior consent requirements on phone and text solicitations (in apparent response to the U.S. Supreme Court’s narrowing of the applicability of the federal Telephone Consumer Protection Act (TCPA)), Oklahoma has followed suit. The <a href="http://webserver1.lsb.state.ok.us/cf_pdf/2021-22%20ENR/hB/HB3168%20ENR.PDF" target="_blank">Telephone Solicitation Act of 2022</a> was signed by Governor Stitt on May 20, 2022, and it takes effect on November 1, 2022.To learn more, read our <a href="https://www.mofo.com/resources/insights/220607-another-state-imposes-prior-consent-obligations.html">client alert</a>.

Wiretap Act Class Action for Technology Company

BIPA Class Action for Social Media App

RICO and Fraud Class Action for Waste Management Company 

Copyright Class Action for AI Company

CCPA and Data Breach Class Action for Leading Software Company

TCPA and Other Class Actions for Major Technology Company

Wiretap Act Action Against a Major Consumer Electronics Manufacturer

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Clients seek out Tiffany for her successful track record in defending class action claims on behalf of clients in a broad range of industries, including technology, healthcare, and consumer product companies. She represents numerous Fortune 500 companies in high-stakes litigation involving privacy and marketing claims in courts throughout the United States.

Tiffany Cheung

Clients seek out Tiffany for her successful track record in defending class action claims on behalf of clients in a broad range of industries, including technology, healthcare, and consumer product companies. She represents numerous Fortune 500 companies in high-stakes litigation involving privacy and marketing claims in courts throughout the United States.

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

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Another State Imposes Prior Consent Obligations for Telemarketing Calls - Along with a Private Right of Action

Privacy Litigation 2021 Year in Review: TCPA Litigation

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Nearly one year after Florida introduced a law that imposes broad prior consent requirements on phone and text solicitations (in apparent response to the U.S. S

Another State Imposes Prior Consent Obligations for Telemarketing Calls - Along with a Private Right of Action

A circuit split has emerged over faxes offering “free” goods, money, or services and whether they constitute an “unsolicited advertisement” under the Telephone Consumer Protection Act (the TCPA).In a February decision, the Second Circuit held that under the plain text of the TCPA, an unsolicited fax to doctors and nurses inviting participation in a market research survey in exchange for money did not constitute an “unsolicited advertisement” under the TCPA. Bruce Katz, M.D., P.C. v. Focus Forward LLC, 22 F.4th 368, 374 (2d Cir. 2022). The court determined that the fax was not an “unsolicited advertisement” because it did not promote the commercial availability or quality of any property, goods, or services, as prohibited by the TCPA. Id. at 372.The Second Circuit’s ruling explicitly rejected the Third Circuit’s conclusion in Fischbein v. Olson Research Group, Inc., 959 F.3d 559 (3d Cir. 2020). In that case, the Third Circuit considered a fax soliciting participation by the recipients in market research surveys in exchange for monetary payments. The court held that the fax was an “unsolicited advertisement,” reasoning that healthcare professionals have a particular need for protection from unsolicited faxes, and that “these firms are not offering compensation out of the goodness of their hearts—they do so for a commercial purpose, to increase the response rate of their surveys, i.e. they can buy more of what they desire.” Id. at 564. The Katz court explicitly disagreed with that argument, opining that “[t]he notion that such faxes might advertise the availability of a ‘service’—i.e., of the recipient’s participation in a survey—contorts the ordinary meaning of the statute too far.” Katz, 22 F.4th 368 at 373.While no other circuit court has weighed in on this split, two Fourth Circuit district courts quickly followed the Second Circuit’s lead. The District of Maryland held that a faxed invitation to a “Monthly Webinar Series,” which also provided a link to win an Amazon gift card by completing a webinar survey, “d[id] not advertise the availability of a good or service, but merely the opportunity to exchange goods or services.” Family Health Physical Medicine, LLC v. Pulse8, LLC, No. SAG-21-2095, 2022 WL 596475, *6 (D.Md. Feb. 28, 2022). And in Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, the Southern District of West Virginia found that a fax offering a “free” eBook did not constitute an advertisement. No. 3:15-14887, 2022 WL 386097, *5 (S.D.W.Va. Feb. 8, 2022), appeal filed, No. 22-1279 (4th Cir. Mar 15, 2022). With the Carlton decision on appeal in the Fourth Circuit, we may soon see another federal appellate court weigh in on this circuit split.We will update this post as more circuits weigh in on this issue.

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, autom

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The Praxis of Faxes: Circuits Split on the Meaning of “Advertisement” Under the TCPA

The Praxis of Faxes: Circuits Split on the Meaning of “Advertisement” Under the TCPA

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A circuit split has emerged over faxes offering “free” goods, money, or services and whether they constitute an “unsolicited advertisement” under the Telephone 

David Fioccola, Adam Hunt, and Lily Westergaard authored an article for Pratt's Privacy & Cybersecurity Law Report reviewing recent decisions on the Telephone Consumer Protection Act (TCPA)."Last year marked another year of important developments in the Telephone Consumer Protection Act (“TCPA”) landscape as lower courts issued conflicting interpretations of the ruling by the Supreme Court of the United States (“SCOTUS”) in Barr v. AAPC  (“AAPC”) and began to apply the definition of “autodialer” that SCOTUS articulated in Facebook, Inc. v. Duguid. Although defendants swung for the fences in an attempt to argue that AAPC rendered the entirety of the TCPA unenforceable for a five-year period and had some initial success, the tide seems to be turning. Similarly, although Duguid provided a narrow definition of an “autodialer,” factual disputes about what satisfies that new definition may still need to be resolved on summary judgment."Read the <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt9bcf813070fdf0ad/627315fadeee7329767e7644/220422-tcpa-litigation-review-update.pdf" target="_blank">full article</a>.

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TCPA Litigation Review and Update

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David Fioccola, Adam Hunt, and Lily Westergaard authored an article for Pratt's Privacy & Cybersecurity Law Report reviewing recent decisions on the Telephone C

TCPA Litigation Review and Update

2021 marked another year of important developments in the TCPA landscape as lower courts issued conflicting interpretations of SCOTUS’s ruling Barr v. AAPC and began to apply the definition of “autodialer” that SCOTUS articulated in Facebook, Inc. v. Duguid. Although defendants swung for the fences in an attempt to argue that AAPC rendered the entirety of the TCPA unenforceable for a five year period and had some initial success, the tide seems to be turning. Similarly, although Duguid provided a narrow definition of an “autodialer”, factual disputes about what satisfies that new definition may still need to be resolved on summary judgment.The Dust Has Not Settled on Whether Defendants Can Be Held Liable for Robocalls Made Between 2015 and July 2020 Following SCOTUS’s Landmark Decision in AAPC.In the wake of the Supreme Court’s decision in Barr v. American Association of Political Consultants, Inc. (“AAPC”), 140 S. Ct. 2335 (2020), lower courts have continued to grapple with the question of whether plaintiffs can assert Telephone Consumer Protection Act (TCPA) claims for conduct occurring between 2015 and July 2020—the time period between when the government-backed debt exception amendment to the TCPA was passed and the date that the Supreme Court declared it unconstitutional. A split among district courts quickly emerged. One line of cases followed an early Eastern District of Louisiana decision, Creasy v. Charter Communications, Inc.<a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html#_ftn1">[1]</a>, in holding that there could be no liability imposed for calls occurring during the contested five-year time period.<a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html#_ftn2">[2]</a> But the majority of district courts declined to adopt Creasy’s reasoning, instead finding that AAPC did not negate the liability of parties that made robocalls during that time period.<a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html#_ftn3">[3]</a>To learn more, read out <a href="https://www.mofo.com/resources/insights/220104-tcpa-litigation-year-in-review.html">client alert</a>.

Privacy Litigation 2021 Year in Review: TCPA Litigation

2021 marked another year of important developments in the TCPA landscape as lower courts issued conflicting interpretations of SCOTUS’s ruling Barr v. AAPC and 

Just a few months after the U.S. Supreme Court narrowed the applicability of the federal Telephone Consumer Protection Act (TCPA), Florida has enacted a law that imposes broad prior consent requirements on phone and text solicitations and provides for statutory damages and a private right of action for violations.Read our client alert <a href="https://www.mofo.com/resources/insights/210706-tcpa-like-florida-law-takes-effect.html?utm_source=publication&utm_medium=email">here</a>.

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TCPA-Like Florida Law Takes Effect

Just a few months after the U.S. Supreme Court narrowed the applicability of the federal Telephone Consumer Protection Act (TCPA), Florida has enacted a law tha

TCPA-Like Florida Law Takes Effect

The Supreme Court has issued its much-anticipated ruling in Facebook v. Duguid, impacting many pending TCPA cases nationwide and providing guidance to the many businesses that engage in calling and texting campaigns. The TCPA generally requires an individual’s prior consent to use an automatic telephone dialing system (an “autodialer”) to call or text his or her mobile phone, including for non-marketing purposes. The definition of an autodialer is thus crucial to whether and when a business may call or text its customers, prospects, or even employees. Read our <a href="https://www.mofo.com/resources/insights/210405-supreme-court-ruling-limits.html?utm_source=publication&utm_medium=email">client alert</a>.

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Much-Anticipated Supreme Court Ruling Limits the TCPA’s Definition of an Autodialer

Much-Anticipated Supreme Court Ruling Limits the TCPA’s Definition of an Autodialer

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The Supreme Court has issued its much-anticipated ruling in Facebook v. Duguid, impacting many pending TCPA cases nationwide and providing guidance to the many 