Michael is a highly experienced trial lawyer who has represented clients in class action and complex litigation matters, including cases related to economic product defects, unfair competition, false and deceptive advertising, business torts, privacy, entertainment and intellectual property. He has defended consumer protection actions and investigation initiated by the Federal Trade Commission (FTC), the U.S. Department of Justice, the Consumer Product Safety Commission and the Federal Communications Commission, as well as numerous state enforcement agencies.
For nearly 20 years, Michael has been at the forefront of representing clients in significant consumer protection matters, including:
- defending the first enforcement action prosecuted by FTC related to the National Do Not Call Registry;
- securing a major automotive industry victory before the U.S. Court of Appeals for the Tenth Circuit mooting injunctive claims for relief brought by private plaintiffs following a product recall; and
- defeating a federal Telephone Consumer Protection Act (TCPA) class action by persuading the West Virginia Supreme Court of Appeals that internet classified ads constitute an express invitation.
He regularly counsels clients on marketing and advertising issues, and has substantial experience in the automotive, fashion retail, dietary supplement, telemarketing, electronic mail marketing, consumer products and payment processing industries.
He is the recipient of numerous accolades, including recognition by Chambers USA in the category of California Litigation: General Commercial and The Legal 500 United States in Dispute Resolution – Product Liability, mass torts and class actions: automotive/transport and consumer products. Law360 named him one of the “Transportation MVPs of the Year” in 2018, and a “Privacy & Consumer Protection MVP” in 2012. BTI Consulting Group recognized him as a “BTI Client Service All-Star” in 2012. Southern California Super Lawyers has honored him for Class Action/Mass Torts, Business Litigation and Civil Litigation Defense. Michael also has received the President’s Volunteer Service Award from the President’s Council on Service and Civic Participation.
Michael also has served as outside counsel to the State Bar of California on issues related to its member programs. Before joining Shook, he was a partner with Sidley Austin, where he was the co-leader of the firm’s Consumer Class Action Defense practice. He also is an avid marathoner, triathlete and four-time Ironman, completing competitions in Maryland (2018), Vineman (Sonoma County, California, 2016), Cozumel (2015) and Boulder (2014).
Economic Product Defect Class Actions
Michael has extensive experience representing automotive manufacturers and distributors in economic defect class actions alleging that the failure to disclose alleged defects constitutes a violation of various consumer protection and warranty laws, including California’s Consumer Legal Remedies Act, Unfair Competition Law and Song-Beverly Consumer Warranty Act. He has defended class actions filed against Toyota, Honda, Mazda, Subaru, Hyundai and Ford, as well as other manufacturers, based on defect allegations related to anti-lock brakes, fuel tanks, headlights, window regulatory assemblies, fuel gauges, air bags, valve springs, low-profile tires, excessive oil consumption and cybersecurity.
Representative highlights include:
- In re: Takata Airbag Products Liability Litigation (S.D. Fla.). Representing Honda in the high-profile multidistrict litigation, which may be the largest automotive MDL ever filed. After the NHTSA issued an October 2014 warning that Takata-manufactured passenger-side airbags installed in millions of U.S. vehicles were subject to explosions, plaintiffs’ lawyers began filing cases across the country against major automotive companies, alleging violations of state and federal laws related to the airbags. In February 2015, these cases were consolidated into an MDL in Florida.
- Petersen v. Mazda Motor of America, Inc., 44 F.Supp.3d 965 (C.D. Cal. 2014). Mazda successfully persuaded the Central District of California to change its position on the applicability of Mexia v. Rinker Boat Co., Inc., 174 Cal.App.4th 1297 (2009) to implied warranties under California’s Song-Beverly Consumer Warranty Act, requiring the plaintiff to plead facts that would establish that a claimed defect manifested within the one-year time limit set forth in the Act.
- Toyota Motor Corp. Hybrid Brakes, 915 F.Supp.2d 1151 (C.D. Cal. 2013) and Toyota Motor Corp. Hybrid Brakes, 959 F.Supp.2d 1244 (C.D. Cal. 2013), where Toyota successfully obtained denial of class certification and summary judgment on all claims in a class action alleging the anti-lock braking systems in second- and third-generation Prius vehicles were defective.
- Winzler v. Toyota Motor Sales, USA, Inc., 681 F.3d 1208 (10th Cir. 2012), in which the Tenth Circuit dismissed as moot a proposed nationwide consumer class action after Toyota initiated a recall of certain vehicles to address stalling issues. Before the recall, Toyota successfully obtained dismissal of the case with prejudice when the district court held that the plaintiff lacked standing because she neither experienced manifestation of the alleged defect nor presented her vehicle for repair.
Michael regularly defends class and regulatory actions alleging that a company or individual engaged in false or deceptive marketing. Often, such claims involve allegations that products or services lack adequate substantiation or failed to disclose material information. Michael has defended claims involving allegedly false or deceptive representations related to fuel efficiency (MPG), dietary supplement products, wellness devices, food products, direct marketing (MLM) businesses, mobile communication carrier fees, and guarantees and warranties.
- George v. National Collegiate Athletic Association, 945 N.E.2d 150 (Ind. 2011), 623 F.3d 1135 (7th Cir. 2010). The NCAA successfully obtained dismissal of a class action alleging its ticket distribution process constituted an unlawful lottery in violation of the federal civil Racketeer Influenced and Corrupt Organizations (RICO) Act, California’s Unfair competition Law and Indiana’s Deceptive Trade Practices Act.
- Shop-Vac Marketing and Sales Practices Litigation, MDL No. 2380 (M.D. Pa.), a multidistrict litigation involving allegations that certain representations related to wet-dry vacuums are false and deceptive.
- FTC v. Merchant Services Direct LLC, No. 13-279 (E.D. Wash.), in which Michael successfully defeated FTC’s attempt to secure a temporary restraining order, imposition of a court-appointed receiver and asset freeze that would have restricted the defendants from selling their services to businesses and prevented the company and individual defendants from having access to their assets. The action was based on allegations that the defendants used deceptive advertising to persuade small businesses to purchase their services while hiding actual fees and falsely promising discounted rates.
- Carter v. Bay Area News Group East Bay, LLC (N.D. Cal.). The district court dismissed with prejudice a putative class action alleging that a news publisher violated the TCPA.
- Gomez v. Campbell-Ewald Co. (C.D. Cal.). Michael defended Campbell-Ewald (C-E) in a putative class action alleging that a text message recruiting campaign that C-E undertook for its client, the U.S. Navy, violated the TCPA. The district court granted C-E’s motion for summary judgment, but the plaintiff appealed to the Ninth Circuit, which reversed the decision. With other counsel, the case was appealed to the U.S. Supreme Court, which affirmed the reversal in a precedent-setting decision.
- Mey v. The Pep Boys, 717 S.E.2d 235 (W.Va. 2011), in which the West Virginia Supreme Court of Appeals affirmed the dismissal of Pep Boys in a case alleging the company violated the TCPA.
- Levitt v. National Consumer Council, No. CA 03-000110 (D.C. Super. Ct.), involving a denial of class certification of a claim related to alleged violations of TCPA based on prerecorded messages.
- White v. EdebitPay LLC (C.D. Cal.), involving a consumer class action alleging violations of the Electronic Communications Privacy Act, invasion of privacy and various state law claims.
Introduction - Civility in Litigation, Association of Business Trial Lawyers ABTL Report, Summer 2019.How Today’s Liability Laws Cover AV Accidents, Axios, December 13, 2018 (with Rachel Straus).
Will the Northern District of California’s New Settlement Guidance Become the Standard By Which All Class Action Settlements Are Measured? The Recorder, November 26, 2018 (with Rachel Straus).
Clear Federal Regulations Would Lower Legal Risks for AV Developers, Axios, November 2, 2018 (with Rachel Straus).
First Circuit’s Decision Provides Guidance on Enforceable Website Terms, Conditions, Bloomberg BNA, August 2, 2018 (with Alexis Miller Buese and Darlene Cho).
Loving Technology Does Not Equate to Understanding It, Or Using It Properly, Automotive World, May 28, 2018 (with Rachel Straus).
Companies Get Some Relief in Automatic Dialing System Ruling, Daily Journal, April 11, 2018 (with Rachel Straus).
The Determinants of Class Certifications After In re Tobacco II, Los Angeles Lawyer, February 2018 (with Amy Lally and Shawn Keith Collins).
Making Standing Stick: Arguing Federal Standing Law to State Courts, Bloomberg BNA Class Action Litigation Report, June 29, 2017.
Strategic Defense Considerations in Light of Spokeo, Bloomberg BNA Privacy and Security Law Report, June 27, 2016.
Supreme Court to Ninth Circuit in Spokeo – Get “Real” on Injury, Bloomberg BNA Privacy and Security Law Report, May 23, 2016.
Federal Calif. “Slack-Fill” Laws Ensure Fill of Litigation, Law360, November 18, 2015 (with Eric Schwartz and Amy Lally).
“Market Actions”: Benefits and Pitfalls of Mooting Class Actions With Private Remedies, BNA Product Safety & Liability Reporter, February 2015.
CAFA: Recent Developments on the Jurisdictional and Settlement Fronts, Competition – The Journal of the Antitrust and Unfair Competition Law Section of the State Bar of California, Vol. 23, No. 2, Fall 2014.
Class Action Roundtable, California Lawyer, July 2014.
Recording Cellphone Calls in Calif. Is Risky For Companies, Law360, May 15, 2014 (with Christine Reilly).
Auto Lending Discrimination Case Highlights Lender Risks, Law360, March 6, 2014 (with Michael Thurman and Livia Kiser).
The CFPB’s Unfair and Misleading Report on Arbitration, Law360, January 24, 2014 (with Michael Thurman and Livia Kiser).
Calling 7th Circuit: Robocalls and Federal Preemption, Law360, January 13, 2014 (with Christine Reilly).
Payment Processors in the Regulatory Crosshairs, Law360, January 9, 2014 (with Michael Thurman).
They’re Here: The FCC’s New Regulations Under the TCPA – Now What? ACC Docket, October 25, 2013.
Green Light For More Deceptive Labeling Class Actions, Law360, August 23, 2013 (with Livia Kiser).
6 Steps for Responding to a Civil Investigative Demand, Law360, August 16, 2013 (with Michael Thurman).
Power of Arbitration Agreements in TCPA Class Actions, Law360, August 6, 2013 (with Christine Reilly).
The Elephant in the Room: Contingency Fees and the Future of Coupon Settlements After In re HP Inkjet Printer Litigation, Bloomberg BNA, July 15, 2013.
The Telephone Consumer Protection Act, Lawyer Monthly, July 2013.
Confirmation of Director Cordray Could Substantially Increase CFPB Enforcement Activity, InsideARM.com, July 2013.
Supreme Court Enforces Arbitration Provision Barring Merchants From Bringing Class Action Antitrust Claims Against American Express, California Retailers Association Golden State Report, July 2013.
Manually Dialed Telephone Calls May Violate TCPA, InteractiveCredit.com, May 20, 2013.
The Hard Stop on “Adventurous Innovation” in Class Action Litigation: The United States Supreme Court’s Decision in Comcast v. Behrend, Remand of Whirlpool v. Glazer and the Probable Return of Defect Manifestation to Class Certifications in the Ninth Circuit, Mealey’s Litigation Report: Class Actions, April 19, 2013.
Watch Out for Shareholder Suits Spawned by CFPB Settlements, American Banker, January 17, 2013.
Navigating Class Action Settlement Negotiations and Court Approval: A Discussion with the Experts, Association of Business Trial Lawyers, Los Angeles, May 23, 2017 (Speaker).
Bridgeport 2017 Class Action Litigation Conference, San Francisco, April 7, 2017 (Co-Chair and Speaker).
Strategies for Stopping Class Actions Before They Start: Establishing an Early Off-Ramp to the Class Action Lawsuit, American Conference Institute’s 2nd Cross-Industry Interdisciplinary Summit on Defending and Managing Class Actions, April 3, 2017 (Speaker).
Key Privacy Law Developments for California in 2016, In-House Counsel Conference of the Southern California Chapter of the Association of Corporate Counsel, Anaheim, California, January 27, 2016 (Panelist).
NHTSA’s Response to Hacking, KPMG Legal and Compliance Share Forum – Los Angeles Auto Show, November 19, 2015 (Speaker).
Bridgeport 2015 Class Action Litigation & Management Conference, Los Angeles, April 16-17, 2015 (Program Co-Chair).
KPMG Legal and Compliance Share Forum – Los Angeles Auto Show, November 20, 2014 (Speaker).
Auto Finance Compliance Summit, Newport Beach, California, May 4-5, 2014 (Speaker).
Bridgeport Advertising, Marketing & Media Law – Litigation and Best Management Practices, March 7, 2014 (Speaker).
American Bar Association Corporate Counsel CLE Conference, Rancho Mirage, California, February 13-16, 2014 (Speaker).
January 2014 Consumer Protection Update, ABA Section of Antitrust Law, February 13, 2014 (Speaker).
The Implications of Recent Supreme Court Decisions for Expert Analysis in Class Actions: Insights from Economics, Marketing, Finance, and Law, Los Angeles, February 4, 2014 (Speaker).
Are You Ready for the Changes to the Telephone Consumer Protection Act Going Into Effect in October 2013? September 13, 2013 (Speaker).
What Makes Jurors Tick? Jury Selection and Persuasion, Los Angeles, September 12, 2013 (Speaker).
HBA Global Expo & Conference, New York City, June 18-20, 2013 (Speaker).
You Make the Call: What You Should Know About the Telephone Consumer Protection Act to Make Sure It Isn’t the Wrong One, Los Angeles, May 8, 2013 (Speaker).
Bridgeport Class Action Litigation & Management Conference, Los Angeles, April 11-12, 2013 (Speaker).
Everything a Marketer Needs to Know About the CFPB – But May Not Know to Ask, March 5, 2013 (Speaker).