Media, Technology and Telecoms: Advertising and Marketing: Litigation
Legal 500 US (2015 – 2021)

Experience

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.

(Alameda County Superior Court). Represented 19 producers of packaged fruit, fruit juice, and fruit and vegetable-based baby foods in connection with Proposition 65 lawsuit and six consolidated federal class actions arising from the presence of naturally occurring lead in their products. Successfully obtained dismissal of suit.

Represented a major generic pharmaceutical company in hundreds of lawsuits (comprising more than 2,000 individual claims) that have been filed in numerous jurisdictions around the United States, alleging that Reglan/metoclopramide (when prescribed off-label for psychiatric purposes) causes significant side effects and damages health. The cases are pending in mass tort proceedings in Pennsylvania, New Jersey, and California.

Represent an automobile manufacturer in putative class actions that certain safety and autonomous driving features do not perform as advertised.

Secured dismissal of a products liability case on preemption grounds, based on the prohibition under federal for entities other than New Drug Application holders to strengthen a drug’s warnings. The Supreme Court applied this reasoning to generic manufacturers in its 2011 landmark ruling in Mensing, but no California state court had extended the reasoning to distributors. The court sustained our demurrer in a detailed order discussing Mensing and justifying its extension of California law, dismissing the claims as preempted by federal law.

Advise a security camera manufacturer on product safety compliance and recalls, coordinating root cause investigations and representing them before the U.S. Consumer Product Safety Commission (CPSC) on voluntary recalls.

Represent a pharmaceutical distributor in thousands of cases filed across the country, defending against plaintiffs’ allegations of injury due to exposure to a number of pharmaceutical products.

Advise a major consumer electronics manufacturer on warning and labeling requirements, and risk assessment, and represented them before the CPSC in conducting a voluntary recall.

Counsel a company in the video game industry on product liability issues, including risk assessments, product development and risk minimization, and new questions of liability arising from open source code. We also assist with crisis management for product safety incidents.

Worked with a solar energy client to implement a fast-track recall of its products and negotiated a corrective action plan with the CPSC.

Serving as national coordinating counsel for Cytec in asbestos-containing product cases pending in California, Delaware, Illinois, Michigan, Minnesota, Mississippi, Missouri, New York, Maryland, Texas, and Wisconsin, as well as the multidistrict proceedings in Philadelphia. The cases include personal injury and wrongful death claims by persons alleging exposure in the workplace to asbestos fibers.

Helped a client develop a response plan, a public relations plan, and customer settlements in connection with reported product safety incidents. Assisted client in determining whether incidents constituted reportable events to the CPSC and worked closely with the CPSC in responding to customers.

Advised retailer of high-end children’s products on product safety incidents, product recall and reporting issues, flammability requirements, third-party testing requirements, required General Certificate of Conformity regulations under the CPSIA, and Proposition 65 warnings.

Representing two companies in one of the largest groundwater contamination cases of its kind (TCE, PCE, DNAPL, and perchlorate), involving a precedent-setting issue of whether a water district has the ability to create its own mini-Superfund. Obtained summary judgment for both companies.

In one of the state’s largest RCRA cases set for trial in 2012, obtained cleanup and injunctive relief for solvent (toluene and methane) contamination on behalf of Newark Industries caused by a prior facility operator and recovery of more than $1.1 million in lawyer fees and costs.

Advised a client on its duties and responsibilities under the CPSIA in marketing, selling, and labeling its products.

(C.D. Cal.). Represent UPS in six putative nationwide class action lawsuits alleging that UPS is obligated to fly UPS Next Day Air and UPS 2nd Day Air packages in an airplane but wrongfully diverts short-distance shipments to surface transportation.

(D. Kan.). Represent Costco Wholesale Corporation in an MDL proceeding comprised of more than 30 class actions alleging that the failure of retailers to disclose the sale of gasoline in volumetric gallons (as opposed to temperature-adjusted gallons) violates state consumer protection laws and constitutes common law fraud, misrepresentation, breach of contract, and numerous other claims. (ongoing)

(N.D. Cal.). Represent a multinational consumer electronics company in consumer class actions alleging consumer protection, false advertising, warranty, and other claims under the laws of various states. Actions were filed in multiple federal district courts and consolidated by the MDL Panel in the Northern District of California. (ongoing)

Served as national counsel for a major pharmaceutical company in product liability cases filed in jurisdictions around the United States. The cases alleged that local anesthetic products used in pain pumps contributed to the development of post-surgical chondrolysis, a degenerative condition of the shoulder. We achieved the dismissal of our client from 186 cases consisting of 478 plaintiffs. Many of these dismissals were accomplished through successful motions to dismiss and persuading plaintiffs’ counsel to dismiss our client without it paying a single settlement.

Worked with a major pharmaceutical company to stop the states of Missouri and Texas from using a significant anesthesia drug in their executions. Faced with the threat of litigation, both states chose alternative methods for lethal injection. Our work helped to prevent a catastrophic drug shortage, as the European Union, which publicly opposes executions and had previously banned the export of drugs used in lethal injections, threatened to impose export restrictions if this drug was used for executions anywhere in the United States.