Product Life Cycle

Clients turn to MoFo at every stage in the product life cycle. We are counsel of choice to industry leaders inside the courtroom and out.

Product manufacturers, suppliers, and resellers face complex legal issues that play out inside courtrooms, before regulatory agencies, and among business partners. We defend our clients as trial and global coordinating counsel in product liability and toxic tort cases. We advise clients on all aspects of regulatory compliance, labeling, and warning requirements, including providing comprehensive support if a client decides to conduct a product recall. And we advise clients on business-to-business transactions to assess and limit their product liability exposure.

Our clients lead cutting-edge industries, such as AI/robotics, automotive and autonomous vehicles, consumer products, food and wine, Internet of Things, medical devices, pharmaceutical, retail and cosmetics, and technology. We understand the dynamic legal and regulatory landscape and provide creative solutions so our clients can stay ahead of regulators, enforcers, and the plaintiffs’ bar.

Our experience spans the entire product life cycle:

Green Chemistry and Chemical Management

For almost four decades, we have counseled clients on product stewardship and chemical use in areas such as agency rulemaking, litigation, and requirements imposed by the U.S. Environmental Protection Agency and U.S. Consumer Product Safety Act; the EU’s Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), Restriction of Hazardous Substances (RoHS), and Waste Electrical & Electronic Equipment (WEEE) Directives; and China’s RoHS.

Our California lawyers understand how the state’s unique regulatory schemes, including Proposition 65, the California Air Resources Board’s requirements, and Green Chemistry Initiative, can affect our clients’ business operations. We help clients develop appropriate compliance strategies and navigate the multiple layers of federal, state, and local regulations, such as Sections 5 (new chemicals) and 14 (disclosure of data) of the U.S. Toxic Substances Control Act.

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Crisis Management

Today, legal issues quickly become business issues. We work with our clients to prepare for, anticipate, and mitigate crises that arise out of product recalls, product defect allegations, industrial accidents, environmental releases, or other unexpected health and safety events. Working closely with the business, we develop strategies to protect our clients’ directors and officers, as well as the company’s brand, reputation, and bottom line.

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Indemnification Rights and Obligations

Companies that seek manufacturing and supply chain solutions from around the world often face complex questions of indemnification and risk allocation. We advise clients on contract provisions that appropriately allocate risk in supply chain sourcing transactions and provide indemnification as part of a comprehensive risk management plan.

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Insurance

We represent insurers and policyholders in coverage matters involving comprehensive general liability, property/casualty, professional errors and omissions, and bond coverages. We defend insurers in “first-party bad faith” cases and represent reinsurers in regulatory matters and reinsurance litigation. We also represent clients, including property/casualty insurers and title companies, in administrative proceedings before California’s Department of Insurance such as those in which the state seeks millions of dollars in rate rollbacks under California’s Proposition 103.

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Labeling and Warning Defenses/Risks

Compliance with labeling and warning requirements is often the first line of defense in any action that challenges the integrity of our clients’ products. We counsel our clients before and after they launch a product on product safety compliance, including labels, warnings, and manuals; product safety standards; and other regulatory compliance.

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Litigation

If disputes go to trial, we are there to defend our clients’ businesses. MoFo has a successful track record in the courtroom. Our clients have prevailed in hundreds of cases before judges and juries. And ten of our lawyers belong to the most elite U.S. organizations for trial lawyers: the American Board of Trial Advocates and the American College of Trial Lawyers.

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Product Recalls

If a client decides to recall a product, we’re there with comprehensive support. We help clients decide whether to recall a product in the first place, coordinate and consult with regulatory agencies, coordinate a crisis and/or public relations response, and implement a corrective action plan.

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Regulatory Compliance

International, federal, and state legal developments impact every stage of a product’s life cycle. Our counsel to our clients is just as expansive.

We advise clients on new “green chemistry” initiatives and the EU’s and China’s RoHS requirements that could impact their product designs.

We provide guidance for clients on the EU’s REACH, the U.S. Toxic Substances Control Act (TSCA), and new U.S. Consumer Product Safety Commission (CPSC) and state lead and phthalate restrictions that could affect their raw material and component sourcing.

We counsel clients on carbon emissions and water and energy use reductions that could alter their product manufacturing.

We advise clients on green advertising restrictions, Proposition 65, and other warning and disclosure requirements that could impact their product marketing.

We provide guidance for clients on toxics in packaging and waste minimization laws that could affect their product packaging.

And we counsel clients on take-back, recycling, and waste handling and disposal requirements that could shape their product disposal, including efforts to take-back, recycle, or reuse products or product components.

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Industries

  • AI/robotics
  • Automotive and autonomous vehicles
  • Consumer products
  • Food and wine
  • Internet of things
  • Medical devices
  • Pharmaceutical
  • Retail and cosmetics
  • Technology
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Experience

  • Represented Fitbit in a class action alleging that a wearable device does not accurately track sleep as advertised and in two putative class actions alleging that Fitbit’s heart rate monitoring does not work as advertised.

  • Served as 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.

  • Secured dismissal of a products liability case on preemption grounds, based on the prohibition under federal law 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.

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

  • Served as an 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.

  • Advised a security camera manufacturer on product safety compliance and recalls, coordinating root cause investigations and representing the company before the CPSC during voluntary recalls.

  • Counseled a video game company on product liability issues, including risk assessments, product development and risk minimization, and new questions arising from open source code; also assisted with crisis management for product safety incidents.

  • Advised a luxury, high-performance eyewear manufacturer on the use of warning labels and instruction manuals for its sunglasses, 3D eyewear, and hydro pens.

  • Advised a 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 Consumer Product Safety Improvement Act (CPSIA), and Proposition 65 warnings.

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

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