Consumer Litigation

Morrison & Foerster has a long track record defending companies in high-stakes consumer class actions and related regulatory proceedings. We represent clients defending claims by private litigants for unfair competition, false advertising, and unfair and deceptive trade practices; and investigations and regulatory enforcement actions mounted by state and federal authorities, including the Federal Trade Commission, and Attorneys General and District Attorneys.

In California (a hotbed of consumer litigation activity due to the state's expansive consumer protection laws) companies must navigate particularly treacherous terrain. We are at our best in that environment thanks to a highly experienced team that includes, among other leaders in the field, the author of the seminal treatise on the subject, who also crafted the key amendment to §17200 known as Proposition 64 (approved by California voters on Nov. 2, 2004).

Our success in representing clients against consumer class actions has earned us the recognition by Legal 500 as a “first tier” law firm in the category of “Product Liability and Mass Tort Defense: Consumer Products.” Our attorneys are recognized by local and national publications, including Chambers, Legal 500, and Best Lawyers in America.

It's not surprising, then, that a wide range of clients, many of them leading consumer brands, turn to our consumer litigation team. These clients include: Amway Inc., Apple, Cadbury, Capital One, Costco Wholesale Corp., Fujitsu Computer Products of America, Inc., Herbalife, Iovate Health Sciences Inc., LensCrafters Inc., Lucasfilm Ltd., Mattel Inc., McKesson Corp., Target Corp., UPS, USAA Casualty Insurance, Unilever, U.S. Bank, N.A., and Verizon Wireless.

The following are representative matters:

• Consumer Products Litigation. We represent a hard-disk manufacturer in consumer class actions alleging misrepresentations regarding the capacity of their hard drives.
  
  
• "Private Surgeon General" Litigation. We represent a food product manufacturer in two class actions filed in 2009 in the Northern and Central Districts of California alleging that our client's advertising of its vegetable oil spreads is misleading.
  
  
• Pharmaceutical "Wholesale Pricing" Litigation. We represent a pharmaceutical manufacturer in sprawling federal and state multi-district litigation brought by counties and states against dozens of pharmaceutical companies for alleged overpayment by the Medicaid program for prescription drugs.
  
  
• Credit Card "Discrimination" Litigation. We represented a major financial institution in a California “Unruh Civil Rights Act” class action involving the advertising and marketing of its credit card program, claiming that the bank’s program discriminated on the basis of national origin.
  
  
• Expiring Gift Card Litigation. We represent a multi-level marketing company in a so-called “expiring gift card” class action in which plaintiffs contend that the notation on our client's gift cards is prohibited by 26 states, including California, because it effectively amounts to an expiration date.
  
  
• "Made in U.S.A." Litigation. We represent Target Corporation in a false advertising case involving products advertised as “Made in USA” on Target.com.
  
  
• Proposition 65 Litigation. We won a unanimous decision by the California Supreme Court that federal law can preempt Prop 65—the first and only Supreme Court Prop 65 decision favoring a defendant.  We also obtained declaratory relief from the California Court of Appeal stopping a threatened Prop 65 bounty hunter action before it was filed. In the trial courts, we won the first Prop 65 defense verdict ever issued and have won every other Prop 65 enforcement defense matter we have litigated to judgment.
  
  
• Multidistrict Litigation. We represent Costco Wholesale Corporation in an MDL proceeding composed of more than 30 state 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.
  
  
• Dormant Commerce Clause. We represent various optical companies and their trade association in a constitutional challenge to California statutes enacted more than 70 years ago in a suit that arose out of a class action and state enforcement cases.