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 June 9, 2014, the Supreme Court ruled in CTS Corp. v. Waldburger et al.  that the Comprehensive Environmental Response, Compensation, and Liability Act of 19

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The “Discovery” Rule Is No Longer Supreme:  The Supreme Court Holds That State Statutes of Repose Are Not Preempted by CERCLA

The “Discovery” Rule Is No Longer Supreme:  The Supreme Court Holds That State Statutes of Repose Are Not Preempted by CERCLA | Class Dismissed

William F. Tarantino

On June 9, 2014, the Supreme Court ruled in CTS Corp. v. Waldburger et al.<a href="#_ftn1" name="_ftnref1">[1]</a> that the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, or the “Superfund” law), which preempts state statutes of limitations for certain tort actions involving environmental harms, does not preempt state statutes of repose.  42 U.S.C. § 9658.  The Court reversed the Fourth Circuit’s decision that Section 9658 applies to both state statutes of limitations and state statutes of repose.  While the Court’s ruling does not affect CERCLA-based cleanups or natural resources damages claims, it has particular significance for claims brought under non-CERCLA alternative theories, where a CERCLA-based claim is unavailable.  Such claims would include those subject to CERCLA’s petroleum exclusion or exemption for federally permitted releases of hazardous substances, as well as claims for personal injury, medical monitoring, or diminution in property values.BackgroundCongress enacted CERCLA in 1980 to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination.  Under CERCLA’s Section 9658 framework, state statutes of limitations in covered actions are preempted.  Congress included Section 9658’s preemption provision because of the potentially long delay from the time that the release of contamination occurs and the time that a plaintiff discovers the resulting injury.  The statute of limitations instead begins to run when a plaintiff discovers, or reasonably should have discovered, that the harm in question was caused by the contaminant.<a href="#_ftn2" name="_ftnref2">[2]</a>In CTS Corp., the Supreme Court faced the question of whether Section 9658 also preempts state statutes of ultimate repose.  A statute of repose puts an outer limit on the right to bring a civil action measured from the date of the defendant’s last culpable act or omission.  Statutes of repose reflect legislative decisions that as a matter of policy there should be a specific time beyond which a defendant should no longer be subjected to protracted liability.<a href="#_ftn3" name="_ftnref3">[3]</a>In this case, defendant CTS Corporation operated an electronics plant in Asheville, North Carolina, from 1959 to 1985.  CTS stored various chemicals on its property and sold the property in 1987.  The buyer eventually sold portions of the property to individuals who, together with adjacent landowners, brought a state-law nuisance suit against CTS alleging damages from contaminants on the land.<a href="#_ftn4" name="_ftnref4">[4]</a>  The plaintiffs brought the suit in 2011, two years after they allegedly learned from the U.S. Environmental Protection Agency that their well water was contaminated.  CTS moved to dismiss the claim, citing North Carolina’s 10-year statute of repose.<a href="#_ftn5" name="_ftnref5">[5]</a>  Because CTS’ last act occurred in 1987, when it sold the electronics plant, the District Court granted the motion to dismiss the nuisance claim as time-barred.  The Fourth Circuit reversed, holding that the federal CERCLA applied to preempt North Carolina’s statute of repose.RulingIn a decision based on principles of statutory construction, the Court held that state statutes of repose are not preempted by Section 9658.  Justice Kennedy, writing for the majority, found it instructive that Section 9658 uses the term “statute of limitations” four times, but not the term “statute of repose.”<a href="#_ftn6" name="_ftnref6">[6]</a>  In addition, Section 9658 characterizes preemption as the “exception” to the regular rule<a href="#_ftn7" name="_ftnref7">[7]</a> and describes the covered limitations period in the singular.<a href="#_ftn8" name="_ftnref8">[8]</a>  Finally, Congress was aware of the difference between a statute of limitations and a statute of repose because the distinction was re­flected in the 1982 Study Group Report that guided Section 9658’s enactment.<a href="#_ftn9" name="_ftnref9">[9]</a>Justices Sotomayor and Kagan joined the opinion in full.  Chief Justice Roberts and Justices Scalia, Thomas, and Alito joined as to all of the opinion except part II-D, where Kennedy stated that “when the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily ‘accept the reading that disfavors pre-emption.’”<a href="#_ftn10" name="_ftnref10">[10]</a>ConclusionThe Court’s opinion effectively empowers state legislatures to decide, as a matter of local policy, the extent to which they want their tort laws to reach back in time with respect to liabilities for legacies of environmental contamination.  States that wish to limit such liabilities may now rely upon or enact statutes of repose, which mandate a “hard-stop” on the filing of such tort claims based upon when the contamination actually occurred.  States that instead prefer to allow lengthy reach-backs to potentially responsible parties for environmental contamination may continue to rely on CERCLA’s preemptive shield that applies a three-year “discovery” rule to state-law statutes of limitations on tort claims.  <a href="#_ftnref1" name="_ftn1">[1]</a> No. 13-339 (June 9, 2014), available at http://www.supremecourt.gov/opinions/13pdf/13-339_886a.pdf.<a href="#_ftnref2" name="_ftn2">[2]</a> This is known as the “discovery rule.”<a href="#_ftnref3" name="_ftn3">[3]</a> CTS Corp., No. 13-339, slip op. at 6 (June 9, 2014) (citing School Board of Norfolk v. United States Gypsum Co., 234 Va. 32, 37, 360 S.E.2d 325, 328 (1987)).<a href="#_ftnref4" name="_ftn4">[4]</a> Id. at 3.<a href="#_ftnref5" name="_ftn5">[5]</a> N.C. Gen. Stat. Ann. § 1–52(16) (“[N]o cause of action shall accrue more than 10 years after the last act or omission of the defendant giving rise to the cause of action”).<a href="#_ftnref6" name="_ftn6">[6]</a> CTS Corp., No. 13-339, slip op. at 11 (June 9, 2014).<a href="#_ftnref7" name="_ftn7">[7]</a> Id. at 10.<a href="#_ftnref8" name="_ftn8">[8]</a> Id. at 13.<a href="#_ftnref9" name="_ftn9">[9]</a> Id.<a href="#_ftnref10" name="_ftn10">[10]</a> Id. at 17 (quoting Altria Group, Inc. v. Good, 555 U.S. 70, 77 (2008)).