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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This month the International Civil Aviation Organization (ICAO) officially adopted a Protocol to amend the Tokyo Convention on offenses committed on aircrafts. 

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Unruly Passengers Beware:  ICAO Delivers Montreal Protocol 2014 to Enhance Enforcement Measures Against Unruly Passengers

Unruly Passengers Beware:  ICAO Delivers Montreal Protocol 2014 to Enhance Enforcement Measures Against Unruly Passengers | Class Dismissed

This month the International Civil Aviation Organization (ICAO) officially adopted a Protocol to amend the Tokyo Convention on offenses committed on aircrafts.  The culmination of a four-year effort to modernize the Tokyo Convention, the Montreal Protocol 2014 makes key changes to improve airlines’ ability to deal with unruly passenger incidents and enhance aviation security.  Some 100 governments participated in the process that led to the Protocol, which will come into force once 22 states ratify it.The Tokyo Convention.  The Tokyo Convention, which came into effect in 1969, governs what action an airline may take to address offences and other acts that occur on board an aircraft during flight.  The Convention allows the aircraft commander to take reasonable measures against an unruly passenger, including restraint, to (1) protect the safety of the aircraft, passengers, and crew, (2) maintain good order and discipline on board, and (3) enable the aircraft commander to deliver the passenger to law enforcement.  Article 10 of the Convention provides immunity from liability in any proceedings for actions taken in accordance with its provisions.It is generally thought that this 50-year-old Convention has served the aviation industry well.  Nonetheless, the past five years have seen a dramatic increase in unruly passenger in-flight incidents.  In fact, according to the International Air Transport Association (IATA), more than 28,000 unruly passenger incidents were reported between 2007 and 2013.  These incidents included violence against crew and other passengers, harassment, and failure to follow safety instructions.To address the rising tide of unruly passenger incidents, a Diplomatic Conference was held between March 26 and April 4, 2014.  The Conference considered proposed revisions to the Tokyo Convention, aimed at ensuring that the Convention continues to work as an effective deterrent to unruly in-flight behavior.And so the Montreal Protocol 2014 was born.  The Protocol makes three key improvements to the Tokyo Convention, including the clarification of the definition of “unruly behavior,” the extension of jurisdiction over in-flight incidents, and the recovery of costs stemming from unruly passenger behavior.  These changes, along with the measures already being taken by airlines, ensure greater liability protection for airlines dealing with unruly passenger incidents.What is unruly behavior?Importantly, Article VIII of the new Protocol eliminates the need for an aircraft commander to have reasonable grounds to believe that an unruly passenger is committing “a serious offence according to the penal law of the State of registration of the aircraft” in order to justify delivery to law enforcement under Article 9.  All that is required under the Protocol is reasonable grounds to believe a “serious offence” has been committed.  Serious offences could range from terroristic threats, to violent or threatening behavior against other passengers or crew, to tampering with a smoke detector.The Protocol also encourages contracting states to take appropriate criminal, administrative, or other measures against any person who commits an in-flight offence, including “physical assault or threat to commit such assault against a crew member” or “refusal to follow a lawful instruction given by or on behalf of the aircraft commander[.]”  See Protocol Article X (adding Convention Article 15(b)).Who has jurisdiction over unruly passengers?  The Protocol also extends the jurisdiction over the unruly passenger’s offense to the destination country of the flight, in addition to the country of aircraft registration.  See Protocol Article IV (replacing Convention Article 3).  This closes a serious Convention loophole that allowed many serious offenses to escape legal action.Can an airline recover costs?  The Protocol also adds provisions to support the recovery of significant costs arising from unruly passenger behavior.  Specifically, Article XIII adds Article 18(b) to the Tokyo Convention, and provides that nothing in the Convention “shall preclude any right to seek the recovery, under national law, of damages incurred, from a person disembarked or delivered [to law enforcement] pursuant to Article 8 or 9[.]”  Nevertheless, airlines may wish to be circumspect in attempting to charge unruly passengers for the high cost of holding up or diverting a flight; most passengers will not have the means to pay such a fine, and airlines may not want to build a reputation for trying to punish their own passengers.Conclusion.The changes effected by the Protocol provide enhanced tools for airlines to handle unruly passengers and combat legal claims arising from disembarkation and delivery to law enforcement.In 2013, a trial team from Morrison & Foerster’s San Diego office won a defense verdict in one of the only, if not the only, case where an airline defense was based on Article 10 of the Tokyo Convention.  The airline argued that the Captain had reasonable grounds for his actions against the unruly passengers, who had refused to follow crew instructions and engaged in a heated verbal altercation with the crew.  Plaintiffs claimed that the Captain acted unreasonably in disembarking them and reporting them to airport police.The 2014 Protocol would have strengthened the airline’s case in at least two ways.  First, the new Article 15(b) would have made even more clear to the jury that refusing a flight attendant’s instructions constitutes unruly behavior, providing additional justification for the Captain’s decision to disembark.  Second, the revised Article 9 would have made clear that a Captain is not required to be an expert on every State’s penal laws in order to form a reasonable belief that a “serious offence” has been committed.Unfortunately, the Protocol did not revise or expound on the Article 6 “reasonable grounds to believe” standard.  It would have been helpful to airlines if the Protocol clarified that this was a standard deferential to the aircraft commander’s judgment and that actions not “arbitrary or capricious” are considered reasonable under the Convention.  Such changes would give airlines a better shot at winning summary judgment under the Tokyo Convention, rather than being forced to go to trial over whether the Captain’s actions were reasonable.