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

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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Alexandra Preece Barlow

Adam J. Hunt

The Future of Section 230: Protection Against Product Liability Claims?

New Wave of PFAS Legislation Aimed at Consumer Products

CPSC Releases Annual Report on Deaths and Injuries Involving Nursery Products

CPSC Proposes New Safety Rules for Infant Rockers

CPSC Commissioners Abstain from Retracting Infant Sleep Product Statements

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In an action that may eventually lead to clarification around what constitutes a “financial incentive” for purposes of the California Consumer Privacy Act (CCPA), Attorney General Rob Bonta announced on January 28, 2022 that his office (the AG) was beginning an “investigative sweep” pursuant to the CCPA.  The AG identified its focus on businesses operating customer loyalty programs in California and those businesses’ compliance with the CCPA’s notice requirements relating to financial incentives.  In its press release, the AG indicated that it had sent letters to “major corporations” across industry sectors, including retail, home improvement, travel, and food services.  These letters alleged the recipients’ non-compliance with the CCPA and provided a 30-day period for companies to cure existing issues and come into compliance with the law.To learn more, <a href="https://www.mofo.com/resources/insights/220131-california-ag-issues-notices-of-violations-guidance-loyalty-programs-ccpa.html">read our client alert</a>.

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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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California AG Issues Notices of Violations: Will We Soon Have Guidance on Loyalty Programs Under the CCPA

California AG Issues First CCPA Opinion: Consumers’ “Right to Know” Includes Businesses’ Internally Generated Inferences

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In an action that may eventually lead to clarification around what constitutes a “financial incentive” for purposes of the California Consumer Privacy Act (CCPA

California AG Issues Notices of Violations: Will We Soon Have Guidance on Loyalty Programs Under the CCPA

Legal 500 US 2021 has recommended Erin Bosman, David Fioccola, and Jessica Grant, and named Julie Park among its “next generation” practitioners. The publication also recognized Morrison & Foerster as a top firm in Product Liability, Mass Tort and Class Action (Defense) for Pharmaceuticals and Medical Devices. See what our clients and peers are saying about MoFo’s Class Actions + Mass Torts Group.<div class="embedded-entry redactor-component block-entry" type="entry" data-sys-entry-uid="blt4fafbbc19c76d8c0" data-sys-entry-locale="en-us" data-sys-content-type-uid="image_content" sys-style-type="block"><div data-reactroot=""><img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blta6cc7bd9d3d54bb0/627315e24d9f89297129017b/07_01_legal500-tier3_productliability_infographic_150dpi_v6.jpg?format=auto&amp;quality=60" alt="Product Liability Infographic"></div></div>

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Morrison & Foerster Achieves Top Ranking in Product Liability, Mass Torts and Class Action (Defense) for Pharmaceuticals and Medical Devices

Legal 500 US 2021 has recommended Erin Bosman, David Fioccola, and Jessica Grant, and named Julie Park among its “next generation” practitioners. The publicatio

Morrison & Foerster Achieves Top Ranking in Product Liability, Mass Torts and Class Action (Defense) for Pharmaceuticals and Medical Devices

Legal 500 US 2021 has named Erin Bosman, David Fioccola, Jessica Grant, Julie Park, James Schurz, William Tarantino, and Claudia Vetesi among their top product liability and class action practitioners nationwide. The publication also recognized Morrison & Foerster as a top Tier 1 Firm in Product Liability, Mass Tort, and Class Action (Defense) for Consumer Products.<img src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/bltfb9918f1567d3c2f/627315df220ab5285f51903d/210708-legal-500-product-liability.jpg?format=auto&quality=60" class="img-responsive" alt="Legal 500 Infographic" type="asset" sys-style-type="download">

Morrison & Foerster Is Recognized As Tier 1 Firm in Product Liability, Mass Torts, and Class Action for Consumer Products

Legal 500 US 2021 has named Erin Bosman, David Fioccola, Jessica Grant, Julie Park, James Schurz, William Tarantino, and Claudia Vetesi among their top product 

Morrison & Foerster Is Recognized As Tier 1 Firm in Product Liability, Mass Torts, and Class Action for Consumer Products

Erin Bosman and Arturo Gonzalez have been named to Law360's 2021 Editorial Advisory Board. These boards provide feedback on Law360's coverage and expert insight on how best to shape future coverage.Erin, co-chair of MoFo’s Class Actions + Mass Torts practice and founder and co-head of the Artificial Intelligence group, represents household names and leading companies in the pharmaceutical, medical device, technology, and artificial intelligence industries.Read more about the <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt0af676e3d29d3936/627315d17198441d81b3a513/210413-product-liability-editorial.pdf">Product Liability Editorial Advisory Board</a>.Arturo is chair of MoFo’s commercial litigation and trial practice group and is one of the nation’s top trial lawyers. He has tried matters for Uber, VMware, and Kaiser Permanente.Read more about the <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt02e32b114a88386b/627315d1220ab5285f519035/210419-trials-editorial-advisory-board.pdf">Trials Editorial Advisory Board</a>.

Fertility Center Litigation

Fitbit

MicroPort

Leading Healthcare, Pharmaceutical, and Medical Device Company

Lethal Injection Matters – Major Pharmaceutical Company

Pain Pump Matters – Large Pharmaceutical Company

Major Technology Company

Leading Chemical Company

Security Device Company

In re Air Crash Near Peixoto de Azevedo, Brazil

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Erin Bosman is chair of MoFo’s Class Actions and Mass Torts Practice Group and is a founder and co-head of the Artificial Intelligence Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin M. Bosman

Erin Bosman is chair of MoFo’s Class Actions and Mass Torts Practice Group and is a founder and co-head of the Artificial Intelligence Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin Bosman

Waymo v. Uber

Phoenix Technologies Ltd. v. VMWare, Inc.

Phaedrus v. Kaiser Permanente

Hansen Medical v. Luna Innovations Inc.

John Russo Industrial Sheetmetal, Inc. v. Los Angeles World Airports Authority

Technology Integrated Group v. FusionStorm

Silvaco v. Cypress Semiconductor Corp.

The Guidiville Rancheria of California et al., v. The City of Richmond

Oakland Raiders v. Oakland-Alameda Cty. Coliseum Corp.

Araceli Rodriguez v. Lonnie Swartz

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Arturo is one of the nation’s top trial lawyers. One federal judge said his “trial advocacy skills were superior,” while a federal magistrate described his trial skills as “phenomenal.” He is sought a

Arturo González

Arturo is one of the nation’s top trial lawyers. One federal judge said his “trial advocacy skills were superior,” while a federal magistrate described his trial skills as “phenomenal.” He is sought after by America’s largest companies, in part because of his ability to communicate with increasingly diverse juries.

Arturo J. González

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Erin Bosman and Arturo Gonzalez Named to Law360's 2021 Editorial Advisory Board

Erin Bosman and Arturo Gonzalez Named to Law360's 2021 Editorial Advisory Board

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law360

Erin Bosman and Arturo Gonzalez have been named to Law360's 2021 Editorial Advisory Board. These boards provide feedback on Law360's coverage and expert insight

Class certification is often discussed as a “stage” of litigation, but the Second Circuit’s recent decision in Jin v. Shanghai Original, Inc. et al<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn1">[1]</a> is a good reminder that, even after a class is certified, class treatment must remain appropriate throughout the litigation. In Jin, the Second Circuit upheld the decertification of a class after “red flags” alerted the court that plaintiffs’ counsel was no longer serious about taking the case to trial. The opinion is particularly significant in practice areas where settlement is the expectation and trial the exception—and it provides a roadmap for defense counsel contemplating a motion to decertify if class counsel does not remain diligent. Whether to do so may depend on the case. A class decertified for counsel’s failures of representation may just be scooped up and reasserted by a different (and more adequate) lawyer. But in cases with serious proof problems, class decertification on adequacy grounds may effectively end the litigation. Case BackgroundIn Jin, employees of Joe’s Shanghai restaurants<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn2">[2]</a> sued the restaurant chain in federal court in New York, alleging wage and hour violations under New York Labor Law (“NYLL”) and the Fair Labor Standards Act.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn3">[3]</a>  The district court certified a class of employees at a single location for the NYLL claims only under Rule 23(b)(3),<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn4">[4]</a> and appointed John Troy of Troy Law, PPLC as class counsel.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn5">[5]</a>  The case then proceeded toward trial.Just five days before trial was scheduled to start, however, the district court sua sponte decertified the class, holding that the representation provided by class counsel was no longer adequate.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn6">[6]</a>  The district court noted “numerous red flags” over the preceding months, including class counsel’s failure to investigate their own claims that defendants had induced class members to opt out and repeated failure to submit a joint pretrial order that complied with the judge’s practice requirements.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn7">[7]</a>  When class counsel submitted a revised witness list shortly before trial, it became apparent that class counsel planned to call only two class members to testify.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn8">[8]</a>  The district court deemed this pretrial submission a “significant intervening event” triggering decertification.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn9">[9]</a>  In particular, the district court noted that the rights of absent class members would be put in jeopardy where the relevant payroll and other pay-related records no longer existed, making “substantial testimony critical to plaintiffs’ class claim.”<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn10">[10]</a>The Second Circuit’s DecisionThe Court of Appeals affirmed, holding that the trial court acted within its discretion because class counsel’s conduct made clear that “counsel was no longer adequately representing the class.”<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn11">[11]</a>  The court explained, “Rule 23(g) requires courts to consider several criteria, including counsel’s efforts investigating the claims, experience with class actions, knowledge of the area of law, and resources.”<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn12">[12]</a> Further, the Court of Appeals made clear that trial courts do not require a “significant intervening event” to decertify a class that no longer meets the requirements of Rule 23, reversing a handful of district court decisions to the contrary.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn13">[13]</a>  A court may—and should—decertify sua sponte whenever it determines that a class falls short of the requirements, including where class counsel’s representation of absent class members is deficient. This decision reinforces the trial court’s oversight role in class action litigation, and clarifies that class counsel’s representation from beginning to end must meet the standards of Rule 23 in order to maintain class certification. Notably, however, the Court specifically left open the question of what standard applies if a defendant moves to decertify a class, noting that “[b]ecause the issue of whether a significant intervening event or a similar type of showing might be appropriate when a defendant moves to decertify is not before us, we do not address this issue.”<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftn14">[14]</a>TakeawaysThe Second Circuit’s decision is reassuring for defense counsel when facing opportunistic or incompetent class counsel. By building a record of unprofessional behavior, defense counsel has recourse to the court to seek decertification of the class, regardless of the standard that applies to such motions. Indeed, even though the decision does not explicitly resolve the governing standard in the Second Circuit for motions to decertify, it is a reminder that defendants can move to decertify a class at any point during the litigation if they amass evidence that the class no longer satisfies the requirements of Rule 23. Seeking decertification on the basis of class counsel’s performance may not be the right strategy in every instance—for instance, where another firm is likely to step in to prosecute the case. But a motion to decertify on the basis of inadequate representation may prove a useful tool where there are serious issues that render the claims unattractive to plaintiffs’ counsel—like the problems of proof in Jin.    <a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref1">[1]</a>   No. 19-3782, slip op. (2d Cir. March 9, 2021).<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref2">[2]</a>  The authors and editor wish to disclose the consumption of a significant number of soup dumplings.  They are very good, but are best not eaten over a computer keyboard.  Views regarding soup dumplings are our own and are not the views of Morrison & Foerster LLP.  <a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref3">[3]</a>Id. at 4; Jin v. Shanghai Original, Inc., No. 16-CV-5633 (ARR) (JO), 2019 WL 11816612 (E.D.N.Y. July 10, 2019). <a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref4">[4]</a>   The district court retained supplemental jurisdiction over the state law claims without discussion.  No. 19-3782, slip op. at 3 n.1.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref5">[5]</a>Id. at 4; 2019 WL 11816612 at *1.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref6">[6]</a>   2019 WL 11816612 at *1.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref7">[7]</a>Id. at *3 (counsel finally submitted a pretrial order that only “substantially complied” with the judge’s practice rules).<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref8">[8]</a>Id. at *2.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref9">[9]</a>Id. at *3.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref10">[10]</a>Id. at *2 n.4.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref11">[11]</a>   No. 19-3782, slip op. at 24. <a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref12">[12]</a>Id. at 5.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref13">[13]</a>Id. at 22.<a href="file:///C:/Users/MXC47/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/ELGW9P9V/CAMT%20-%20Second%20Circuit%20Decision%20Serves%20as%20Cautionary%20Tale%20to%20Would%20(004)%20-%202093556%20(003).DOCX#_ftnref14">[14]</a>Id. at 23 n.18.