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 October 19, 2015, U.S. Transportation Secretary Anthony Foxx and Federal Aviation Administration (FAA) Administrator Michael Huerta announced a plan to requi

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The FAA (Re)Acts: Drone Registration, a Federal Task Force, and Hefty Fines

The FAA (Re)Acts: Drone Registration, a Federal Task Force, and Hefty Fines | Class Dismissed

On October 19, 2015, U.S. Transportation Secretary Anthony Foxx and Federal Aviation Administration (FAA) Administrator Michael Huerta announced a plan to require unmanned aircraft vehicle (UAV or “drone”) users to register their UAVs with the FAA.  While commercial users were already subject to registration requirements, the new scheme would extend to recreational users, a group expected to swell by millions in the coming holiday season.  Coming close on the heels of the FAA’s unprecedented $1.9 million proposed penalty against SkyPan International, Inc. (“SkyPan”), the announcement suggests that the FAA is under pressure to respond to popular concerns around soaring drone use and increasing reports of unsafe drone operation.The FAA’s Registration PlanSecretary Foxx noted that the registration scheme will further at least two key goals of the FAA.  First, it provides the agency with an opportunity to engage and educate new users regarding safe drone operations before these new users start flying.  Second, and perhaps more importantly, “Registration of all aircraft, including, unmanned aircraft, is an important part of ensuring accountability,” said Foxx.  Where drone operators do break the rules, a registration requirement ensures investigators can identify an operator—or at least an owner—from a drone involved in an incident.While the shape and scope of the registration program remains undetermined, the FAA is aiming to have a system in place prior to the holiday season.  This accelerated timeline is in stark contrast to the typical FAA process where the proposal and comment process can stretch a year or more, as well as the FAA’s repeated inability to meet deadlines for issuing regulations for drones.  The FAA has assembled a task force, including representatives from industry groups, government officials, and experts from leading drone companies, to explore how to create a registration program that ensures appropriate registration of drones without becoming overly burdensome.  The task force’s recommendations are due by November 20, 2015.The FAA’s initial announcement was light on details about how the registration scheme would be implemented.  Given the incredible diversity of vehicles that could be considered a “drone,” there was immediate concern about the scope of the registration requirement.  Some commentators noted that the registration scheme for commercial drones requires actual carbon copy forms to complete, a process that would be near-impossible to scale to meet the demands of the exploding consumer drone market.  On Thursday, October 22, 2015, however, the agency published a “<a href="https://www.federalregister.gov/articles/2015/10/22/2015-26874/clarification-of-the-applicability-of-aircraft-registration-requirements-for-unmanned-aircraft">Clarification and Request for Information</a>” regarding the announcement, inviting public comment on the registration plan and demonstrating that the agency is aware of the difficult questions the plan raises.The FAA specifically requested “information and recommendations regarding what information and registration platform would be appropriate for [UAV] registration and ways to minimize the burden to the regulated community.”  In addition, the agency asked for feedback regarding “which [UAVs], based on their weight or performance capabilities, warrant a continued exercise of discretion with respect to requiring registration because of the negligible risk they pose to the national airspace system.”  The window for public comment closes November 6, 2015.While the FAA’s request for comment is an encouraging sign that it recognizes the issues and challenges of requiring registration, how the FAA will address those remains to be seen.  Among these are: who should bear the burden of creating and administering the program; how should costs be allocated among the government, industry, and users; what drones should be subject to the registration requirement; and how should the FAA address the millions of existing drones in the marketplace.Efficacy Questions and Legal HurdlesBoth Foxx and FAA Administrator Michael Huerta cited the safety concerns posed increasing drone use as driving the registration requirement.  Not surprisingly, the FAA is likely to rely on the public safety issue to justify bypassing normal rulemaking procedures.  Yet how the registration program itself will address those issues is unclear.  For instance, the FAA recently released a report in August titled “Pilot Reports of Close Calls with Drones Soar in 2015,” documenting reports of drone sightings.  Overwhelmingly, the cases involved pilots seeing drones at a distance and even in the ten cases where pilots took evasive action, the drone involved was not recovered.  It’s unclear how the registration requirement would address the safety issues in such cases or increase accountability.Also left unspecified was how the agency intends to deal with existing drones. The agency appears to be assuming the requirement will apply retroactively.  “One of the things the task force will look at is what sorts of provisions will be made for people who already own drones.  We would expect retroactive registration.  There may be a grace period, the task force will make a recommendation,” Foxx said.In addition, whether the FAA is limited in its ability to require registration by existing legislation governing the FAA’s authority over recreational drone users remains uncertain.  The FAA Modernization and Reform Act of 2012 included limits on the FAA’s ability to make rules or regulations for model aircraft under 55 pounds flown strictly for recreational or hobby use.  We expect the FAA will face legal challenges to its authority to make registration a requirement for recreational drone use.Finally, some industry observers are extremely skeptical of the FAA’s ability to create a registration system on the timeline the agency has proposed.  Jim Williams, the former top drone official at the FAA, told the Wall Street Journal that the timeline was “unprecedented” and if the FAA managed to hit its goals, “[i]t would be the most amazing feat of governance I’ve seen in my 33 years in the federal government.”The SkyPan Fine: Facts of the IncidentThe FAA’s recent registration announcement follows the announcement of a nearly $2 million proposed civil penalty against an urban drone operator—SkyPan International—for “endangering the safety of our airspace.”SkyPan is a Chicago-based aerial photography company. According to SkyPan’s website, the company uses proprietary Remote Piloted Vehicles (RPVs) to shoot aerial and panoramic photographs for developers and construction and marketing companies. SkyPan is a Section 333 UAS Exemption Holder for flying its RPVs to conduct its commercial operations, but that exemption is subject to strict limitations.The FAA alleged that SkyPan conducted 65 unauthorized commercial UAV flights over New York City and Chicago airspace between March 21, 2012 and December 15, 2014, including 43 flights that flew in the highly restricted New York Class B airspace without air traffic control clearance.  The FAA alleges that the operations violated airspace regulations and various operating rules as the UAVs used in flights did not meet federal requirements.  The UAVs in question were flown without the necessary air-traffic-control clearance and were not equipped with two-way radios, transponders, and altitude-reporting equipment.  The drones also lacked airworthiness certificates and effective registrations, and SkyPan did not have a Certificate of Waiver or Authorization from the FAA for the operations.In its press release, the FAA alleged that SkyPan operated the aircraft in a “careless or reckless manner so as to endanger lives or property.”  Huerta said, “Flying unmanned aircraft in violation of the Federal Aviation Regulations is illegal and can be dangerous.  We have the safest airspace in the world, and everyone who uses it must understand and observe our comprehensive set of rules and regulations.”SkyPan has 30 days after receiving the FAA’s enforcement letter to respond to the agency, and potentially appeal the proposed penalties.The FAA StirsThe proposed penalty is almost a hundred times greater than any past fine for drone operations.  According to the FAA’s spokesperson, Les Dorr, the largest fine before the proposed action against SkyPan was lodged against Xizmo Media, a New York video production company, for $18,700.  Dorr indicated that most fines have ranged between $1,100 to $5,000.The FAA stated that one reason for the size of the fine was that FAA inspectors had issued several warnings to SkyPan regarding the flights, but the company had continued with its activities.  Huerta stated that “Clearly this was not inadvertent, someone making a mistake.  What we saw here was a pattern of disregard for FAA rules.”  Huerta said SkyPan stopped violating the rules this year, and the FAA approved SkyPan to use drones commercially after it submitted a plan to mitigate risk.Increasing concern on the part of legislators may help explain the FAA’s new sense of urgency.  On October 7, 2015, the House Subcommittee on Aviation convened a hearing on “Ensuring Aviation Safety in the Era of Unmanned Aircraft Systems,” which focused on ensuring aviation safety in the era of UAVs.  In the face of the increasing popularity of UAVs in the United States, the panel voiced concern about the FAA’s lack of progress in curtailing the risk of the sheer number of UAVs in U.S. airspace.More recently, on October 28, the Senate Subcommittee on Transportation, Housing & Urban Development questioned FAA chief Huerta on the agency’s failure to meet deadlines for finalizing drone regulations and how the agency planned to deal with safety concerns.  Reading from a prepared statement, Huerta called out the SkyPan fine as “a clear message to others who might pose a safety risk: Operate within the law or we will take action.”Even as the FAA sent a clear message on safety, however, Huerta’s comments raised additional questions about the scope of the proposed registration requirement.  The FAA chief hedged on whether the registration requirement would extend to model aircraft, highlighting the ongoing uncertainty around the agency’s next steps.Questions RemainingThe proposed SkyPan fine indicates to drone operators that the FAA will pursue vigorous enforcement actions, on a scale not previously seen, against those operators flagrantly violating the rules.  Yet the details of SkyPan’s flights have raised questions about how broadly the FAA intends to wield this authority.  SkyPan itself received a Section 333 UAS Exemption from the FAA in April this year, having submitted its application on December 22, 2014, shortly before the process was set forth in the NPRM.The FAA’s allegations encompass flights occurring as far back as 2012, when the regulatory framework, and the scope of the FAA’s authority, was less certain than it is today.  The agency’s proposed fine has intensified concerns about the lack of a clear regulatory framework governing UAV operators, particularly as SkyPan’s case shows the risk of large penalties for noncompliance.Similarly, while the FAA has stated that the details of the registration requirement have yet to be determined, an FAA spokesman told the New York Times that failure to register a drone would trigger civil fines of up to $27,500, and “if warranted,” criminal penalties up to $250,000 or up to three years in jail, or both.  The threat of such dire penalties, coupled with the extension of the registration requirement to existing operators, only heightens the stakes for the program and the potential threat to the drone industry generally.Next StepsBetween the SkyPan proposed penalty and the plan for a registration program, the FAA has demonstrated that it is willing to act to protect airspace safety.  It remains to be seen, however, whether the FAA’s new aggressive enforcement stance and registration plans will actually lead to safer, or more predictable, skies.