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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A recent case in the Northern District of California addresses the use of testing in a false advertising case at the pleading stage, and how specific plaintiffs must be when discussing test results in a complaint.  In Mack v. Edgewell Personal Care Company, the Court held that cursory allegations regarding testing may be insufficient to survive a motion to dismiss, and that specific factual allegations that explain the test results presented and plaintiff’s interpretation of those results are required to meet the plausibility requirement.

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Testing Plaintiff’s Test Results: What Specificity Is Required at the Pleading Stage in False Advertising Cases? | Class Dismissed

Lena Gankin

Mamie Tabet

A recent case in the Northern District of California addresses the use of testing in a false advertising case at the pleading stage, and how specific plaintiffs must be when discussing test results in a complaint.  In Mack v. Edgewell Personal Care Company, the Court held that cursory allegations regarding testing may be insufficient to survive a motion to dismiss, and that specific factual allegations that explain the test results presented and plaintiff’s interpretation of those results are required to meet the plausibility requirement.Case Background:A group of plaintiffs sued Edgewell Personal Care Company (“Edgewell”) alleging that Edgewell’s statements about two of its tampon products were false and misleading.  Edgewell made various claims on its packaging, such as “100% Organic Cotton” and “free from colors, dyes, and BPA.”  Plaintiffs alleged these statements were false and misleading because the products contain polyfluoroalkyl substances (“PFAS”).The Testing Presented:In support of their allegations, plaintiffs referenced “independent, third-party” testing (which they did not attach), the results of which they alleged showed that Edgewell’s products contained PFAS.  Plaintiffs stated that their testing utilized total organic fluorine (TOF) analysis.  Plaintiffs also alleged that “[o]rganic fluorine is a surrogate or proxy for PFAS chemicals” and that “its presence is indicative that a sample contains PFAS.”  Plaintiffs further alleged that organic fluorine analysis is widely accepted and that “the state of California uses [it] to measure PFAS in its regulation of consumer products.”  According to plaintiffs, their testing showed that Edgewell’s tampon products contain PFAS.  The Complaint did not contain any other information about the testing, including how it was done, or why it showed that Edgewell’s products contained PFAS.The Court’s Holding:In its motion to dismiss, Edgewell argued (among other things) that plaintiffs did not plausibly allege that the products contained PFAS, despite their reference to third-party testing.  Judge Martínez-Olguín agreed with defendants and granted their motion to dismiss.  In so doing, the Court deemed the test results “cursory” and stated that they provided “no specificity as to the results reached or any other findings that would support plaintiffs’ interpretation of those results.”  The Court further held that the allegations required more factual content to “nudge Plaintiffs’ claims, based on the theory that Edgewell’s tampons contain PFAS, from possible to plausible.”  Specifically, plaintiffs excluded “whether the organic fluorine may be indicative of natural sources or is largely, if not exclusively, linked to forever chemicals” or “whether the presence or absence of any other substance might bolster Plaintiffs’ interpretation of their testing’s findings.”In so reasoning, Judge Martínez-Olguín distinguished Warren v. Whole Foods Market California, Inc., where plaintiffs’ test results survived a motion to dismiss.[1]  In Warren, plaintiffs alleged that Whole Foods falsely advertised a coffee creamer as “naturally flavored,” even though plaintiffs believed it contained artificial vanilla flavoring substances.  To support their claim that the creamer contained artificial flavoring, plaintiffs presented test results that they alleged showed the creamer contained artificial flavoring.  Judge Edward M. Chen of the Northern District of California ruled that plaintiffs’ testing showed the presence of artificial flavoring was probable and therefore denied dismissal.  “Plaintiffs offer more than a bare conclusory allegation that the Product contains ethyl vanillin; they support their allegation that the Product contains high levels of artificial flavoring with a photocopy of a test result . . . showing ethyl vanillin at a concentration of 2.205 parts per million.”The difference in what plaintiffs presented in Edgewell and in Warren is stark.  In Edgewell, plaintiffs merely provided conclusory allegations that their testing showed PFAS in Edgewell’s products.  In Warren, plaintiffs attached the test results to their complaint and explained the methodology used to reach their conclusion.  These cases suggest that the Northern District of California is requiring more specificity when plaintiffs present test results in their Complaints.  Edgewell may also signal a shift in false advertising cases to a more stringent view of what suffices to meet the plausibility requirement.What This Means for False Advertising CasesEdgewell highlights the specificity required to withstand a motion to dismiss when a plaintiff uses test results to bolster the allegations in their Complaint.  Judge Martínez-Olguín’s ruling shows that it is not enough to allege that tests were conducted and that those tests support plaintiff’s position.  Rather, courts will look to see whether plaintiffs include specific factual allegations regarding the methodology used in their testing and a discussion of why the findings support plaintiffs’ claims.Morrison Foerster will continue to monitor the impact of this ruling and is available to provide legal guidance to clients on the ramifications of this decision.[1] Warren v. Whole Foods Mkt. California, Inc., No. 21-CV-04577-EMC, 2022 WL 2644103 (N.D. Cal. July 8, 2022).

Testing Plaintiff’s Test Results: What Specificity Is Required at the Pleading Stage in False Advertising Cases?