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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While the use of masks to combat the spread of COVID-19 has become a politicized issue in the United States, the scientific community largely agrees that wearin

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Are You Covered? Warnings From Recent Face Mask Litigation

Are You Covered? Warnings From Recent Face Mask Litigation | Class Dismissed

Michelle Sosa-Acosta

While the use of masks to combat the spread of COVID-19 has become a politicized issue in the United States, the scientific community largely agrees that wearing face coverings is one of the most effective ways to slow infections.[1] State and local governments have issued orders requiring residents to wear masks in public, with some advising employers to provide their employees with face coverings or reimburse the reasonable cost of obtaining one.[2] Governor Gavin Newsom of California, for example, has issued a number of mandates to slow infections. One of those mandates is that all individuals must wear a mask or face covering in public or common spaces statewide. Federal agencies such as the CDC and OSHA have issued non‑binding guidelines that also advise people to wear masks in public.[3]It might seem that as long as businesses comply with these federal, state, and local requirements and guidelines regarding masks, they can expect to be shielded from lawsuits related to their mask-related policies.[4] A few recently filed putative class action lawsuits, however, show that plaintiffs and their attorneys are nevertheless seeking ways to turn mask issues into litigation.Mask-Related Lawsuits Alleging Violations of the Americans with Disabilities Act (“ADA”)The ADA prohibits discrimination against people with disabilities in employment (Title I)[5] and in places of public accommodation (Title III).[6] In recent months, several plaintiffs alleging disabilities have filed lawsuits claiming that businesses they have frequented violated Title III of the ADA by denying the plaintiffs public accommodations due to the businesses’ mask policies.First, on July 30, 2020, Cali Bunn, who alleges that she suffers from a severe hearing loss, filed a class action complaint against Nike, Inc. in San Francisco County Superior Court.[7] According to Bunn, she relies on lip reading and visual cues to understand speech. Bunn alleges that while she was visiting a Nike store in San Diego, she had difficulty understanding the salesperson because the salesperson wore a face mask. Bunn alleges she felt embarrassed and was deprived of “friendly and personalized customer service” due to her disability.[8]Then, on August 21, 2020, more than 60 plaintiffs filed a complaint against Giant Eagle, Inc. and C&J Grocery Co., LLC (owner and operator of a Giant Eagle store) (“Giant Eagle”) in the Western District of Pennsylvania.[9] The plaintiffs allege they suffer from respiratory limitations, asthma, nervous system issues, and/or post-traumatic stress disorder, among other conditions, which allegedly prevents them from being able to wear masks. The plaintiffs further allege that Giant Eagle employees refused to allow them to shop at the Giant Eagle stores and asked them to leave because they were not wearing masks. Plaintiffs also claim that “there was no significant risk to the health or safety of others if Giant Eagle modified its policies, practices and procedures” by allowing them to shop without masks and noted that the CDC acknowledged “the need for a medical exception to the mask requirement.”[10]These lawsuits show that businesses should give careful thought to balancing the need to comply with applicable federal, state, and local orders and guidelines regarding the use of masks and providing reasonable accommodations for people with disabilities under the ADA. There is no one-size-fits-all approach for striking the right balance between complying with the ADA and efforts to stop the spread of COVID-19. Companies should consider what alternatives for patrons with disabilities are reasonable and economically feasible based on the nature of their public‑facing businesses. Options for customers and other visitors whose disabilities prevent them from wearing masks may include, where feasible, providing expanded curbside, online, or other contactless services.Employee Lawsuits Regarding Face Mask PoliciesCompanies should also consider that the mask-related policies they adopt and enforce for their customers may not be the right fit for their employees. In recent months, employees have filed suit against their employers seeking damages for allegedly dangerous working conditions related to COVID-19. Some of these claims are based on purportedly unsafe mask practices.For example, on May 19, 2020, employees and their family members filed a putative class action lawsuit in Illinois state court against the McDonald’s Corporation and a subsidiary alleging claims for public nuisance and negligence due to the alleged failure of McDonald’s to maintain adequate COVID-19 safety protocols.[11] The employees allege that in some McDonald’s restaurants, workers do not regularly wear masks.[12] The employees further allege that they each were provided with only one mask, which became dirty after multiple uses. The court granted in part plaintiffs’ emergency motion for a preliminary injunction. The court found that although a McDonald’s subsidiary provided employees with a sufficient number of masks, the subsidiary was not enforcing its mask policy or complying with the Illinois Governor’s mask requirements. The court ordered the McDonald’s subsidiary to train employees on social distancing in a manner consistent with the Governor’s executive order and enforce mask wearing policies when employees are not six feet apart.COVID-19 presents a new safety concern for employers. Consulting with counsel can help determine what safeguards can and should be implemented in the workplace. Depending on the nature of the work and workplace, issues employers may want to consider could include remote work options, flexible return-to-work plans, appropriate and feasible return-to-work logistics, and reasonable accommodations for vulnerable groups.Key TakeawaysWith so many constituents, businesses may feel as if they are caught between a rock and a hard place. On one hand, customers are suing businesses for requiring them to wear masks. On the other hand, employees are suing them for not enforcing mask-related policies and guidelines. In developing their COVID-19 protocols, businesses must simultaneously consider their obligations as public accommodations to customers and other visitors and their obligations as employers. Doing so requires not only knowledge of applicable rules and guidance but also an eye toward flexibility.Morrison & Foerster’s <a href="https://www.mofo.com/capabilities/class-actions-mass-torts.html">Class Action + Mass Torts Group</a>, <a href="https://www.mofo.com/capabilities/employment-labor.html">Employment + Labor Group</a>, and Coronavirus Task Force have advised and represented many clients on developing COVID-19 protocols and emerging claims related to COVID-19. To stay a step ahead, our team continuously analyzes newly filed lawsuits as well as COVID-19 government orders, guidance, and trends. [1] “Use of Masks to Help Slow the Spread of COVID-19.” Centers for Disease Control and Prevention. Accessed September 16, 2020. [2] “Industry Guidance to Reduce Risk.” Coronavirus COVID-19 Response. California, State Government. Accessed September 16, 2020. <a href="https://covid19.ca.gov/industry-guidance/">https://covid19.ca.gov/industry-guidance/</a>.[3] “Use Masks to Help Slow Spread.” Centers for Disease Control and Prevention. Centers for Disease Control and Prevention. Accessed September 16, 2020. See also United States Department of Labor. COVID-19 Frequently Asked Questions, Occupational Safety and Health Administration. Accessed September 16, 2020. [4] The HEALS Act, the Senate’s July proposed stimulus package, included the SAFE TO WORK Act, which, if enacted, would create a broad liability shield for employers and businesses faced with coronavirus exposure claims as well as certain other specified coronavirus-related claims. Safeguarding America’s Frontline Employees to Offer Work Opportunities Required to Kickstart the Economy Act (“SAFE TO WORK ACT”), S.4317, 116th Cong. (2020); see also “The SAFE TO WORK Act: An In-Depth Guide for Employers to the Senate’s Proposed Coronavirus Liability Shield.” Morrison & Foerster LLP. Accessed September 17, 2020. <a href="https://www.mofo.com/resources/insights/200811-safe-to-work-act.html">https://www.mofo.com/resources/insights/200811-safe-to-work-act.html</a>. With the House and Senate unable to agree on a stimulus package, the SAFE TO WORK Act has thus far not progressed past its assignment to the Senate Judiciary Committee on July 27, 2020. In the meantime, several states (not including California) have enacted legislation shielding businesses from civil liability for COVID-19-related injuries, losses, or deaths. [See, e.g. COVID-19 Liab. Safe Harbor, 2020 N.C. ALS 89, 2020 N.C. Sess. Laws 89, 2020 N.C. Ch. 89, 2019 N.C. HB 118, enacted, July 2, 2020; Georgia COVID-19 Pandemic Business Safety Act, 2020 Ga. ALS 588, 2020 Ga. Laws 588, 2020 Ga. Act 588, 2020 Ga. SB 359, enacted August 5, 2020; and 2020 Bill Text NV S.B. 4B, enacted August 11, 2020.][5] 42 U.S.C. §§ 12111-12117.[6] 42 U.S.C. § 12182(a).[7] Cali Bunn v. Nike, Inc., (S.F.Super.Ct., Jul. 30, 2020, No. CGC-20-585683) 2020 WL 4383483.[8] See Bunn Compl. ¶ 11.[9] Second Amended Consolidated Complaint, Pletcher v. Giant Eagle, Inc., No. 2:20-cv-754 NBF (W.D. Pa. Aug. 21, 2020), ECF No. 32.[10] See Pletcher SACC ¶ 290.[11] Massey v. McDonald’s Corp. et al., No. 20 CH 4247, 2020 Ill. Cir. LEXIS 465 (Ill. Cir. Ct. June 24, 2020).[12] See Complaint, Massey v. McDonald’s Corp. et al., No. 20 CH 4247 at ¶ 81 (Ill. Cir. Ct. June 24, 2020).