Keep up with the latest legal and industry insights, news, and events from MoFo

National: Food & Beverages: Regulatory & Litigation

Chambers USA (2022-2024)


Serve as orthopedic device manufacturer’s national product liability counsel, providing broad based support on product development and product safety issues, in addition to serving as lead counsel in product liability litigation matters.

We have represented Fitbit before the Consumer Product Safety Commission (CPSC) since 2014. MoFo currently represents Fitbit before the CPSC on reporting requirements for their products, and advises on new product development and risk mitigation, including media and public relations counseling, assisting with the coordination of product testing, and advising on product warnings and labels. Additionally, we have served as lead counsel for Fitbit in five class action lawsuits and in over 300 personal injury lawsuits arising from the recall, all of which were favorably resolved. We are lead counsel defending Fitbit against their first consumer class action case. Plaintiffs brought suit on behalf of California and Florida purchasers alleging that Fitbit’s activity trackers did not track sleep as advertised. Erin’s approach to this case focused on the intersection of litigation strategy with Fitbit’s business needs. In March 2018, we negotiated a settlement of this case that has received preliminary approval from the court. On the eve of oral arguments, the customers filed a motion asking the court to preliminarily approve a settlement that would resolve the three-year-old litigation. Under the deal, Fitbit agreed to provide every class member a $10 cash payment and a transferable, non-expiring $5 voucher that can be used on Fitbit’s website. Under the settlement that was approved in October 2018, each class member will receive $12.50, which represents 83% of the best-case damages amount they might have been awarded had the case gone to trial. Class counsel have asked for more than $7 million in attorneys’ fees. We have also been lead counsel for Fitbit in two consolidated cases alleging that Fitbit’s heart-rate monitoring does not work as advertised. The heart-rate monitoring class actions spawned securities class actions against the company, and we coordinated the interplay between both sets of cases. The judge granted Fitbit’s motion to compel arbitration, sending 12 of the 13 named plaintiffs to arbitration. This case raises novel issues regarding the scope of arbitration agreements and class action waivers.

We are defending MyLife Inc. in two putative class actions that allege unlawful appropriation of the plaintiffs’ identities and the identities of thousands of other Illinois residents in its advertisements without written consent. Motions to dismiss both cases are fully briefed and pending.

Lead counsel for a network of fertility clinics in class action and mass tort litigation arising out of a cryostorage tank failure at one of the clinics.

We secured a victory for Gap in an identity theft class action case filed by a former job applicant who made claims against the retailer after a third-party vendor’s laptop, containing personal data, was stolen. The U.S. District Court for the Northern District of California held the clothing retailer was not negligent in its handling of the data and granted summary judgment to Gap, as well as to third-party vendor Vangent Inc., dismissing negligence claims.

We are representing a major financial institution in an MDL proceeding that consists of 1) a class action brought on behalf of every merchant in the United States who accepts Visa and MasterCard payment cards alleging price-fixing and tying claims and 2) more than 10 actions by a number of large merchants making parallel claims. Fact discovery is complete. Motions to dismiss and motions for class certification are pending. We also are representing the same financial institution in several other payment card antitrust cases.

After a four-week jury trial, we won a defense verdict on behalf of JDSU and three former executives on all claims in a class action alleging securities fraud and insider trading. Plaintiffs had sought damages of approximately $20 billion, one of the largest damages claims ever presented at trial in the United States.

We represented McKesson in a nationwide RICO class action lawsuit alleging unlawful price fixing to inflate the average wholesale price of hundreds of brand name prescription drugs. We obtained dismissal at the pleading stage, demonstrating that plaintiffs failed to allege any anticompetitive effect from the alleged conduct.

Defended digital media company in privacy class actions alleging email content was scanned to develop targeted advertising in violation of California state wiretapping laws.

Represented a major pharmaceutical company in MDL proceedings and state-consolidated cases in which more than 200 plaintiffs claimed that pamidronate, an injectable drug used in the treatment of certain cancers, causes a degenerative condition of the jaw. On January 30, 2012, we obtained dismissals from all remaining plaintiffs in the MDL. The MDL court found that plaintiffs’ claims boiled down to failure to warn claims and, therefore, were preempted under the U.S. Supreme Court’s decision in Mensing. In addition to MDL proceedings in the Eastern District of New York, we represented our client in New Jersey mass tort proceedings.