Cheryl A. Falvey

Representative Litigation Matters

• Defense of automobile manufacturer in a class action alleging security vulnerability that makes the cars susceptible to third-party hackers.
• Defense of a food manufacturer in class action and consumer protection cases involving allegations of misleading labeling of product ingredients.
• Defense of a national fast food retailer in class action alleging consumer fraud in the marketing of foods as trans fat free.
• Defense of cell phone manufacturers in MDL class actions and mass tort cases — one related to alleged defects in call processing technology, and another involving product liability allegations that cell phones caused plaintiffs' brain cancer.
• Defense of multiple CPSC agency enforcement actions alleging failure to report alleged defect in recalled products.
• Prosecution of indemnification claim regarding liability for alleged chronic beryllium disease contracted by dental technicians during use of dental alloys manufactured using beryllium.
• Defense of patent infringement case regarding various methods of streaming audio content over the internet in connection with online radio service; case settled after several weeks of trial in federal court in Corpus Christi, Texas.
• Prosecution of Lanham Act false advertising and trademark infringement case involving the marketing and sale of exchanged traded funds.
• Defense of a South Carolina Deceptive Trade Practices Act claim that grocery stores conspired to refuse to sell barbecue sauce because of client's political position regarding the removal of the South Carolina flag from the state house.
• Defense of toxic tort litigation regarding client's catalyst products and allegations related to lung disease caused by exposures in the Virgin Islands and successfully developed sophisticated intermediary defense.
• Defense of refinery in cases alleging community exposures to chemicals as a result of refinery explosion releasing hydrofluoric acid; tried bellwether case to defense verdict and settled remaining cases.
• Dismissal on summary judgment after argument in New York State Appellate Division of worker claims of negligence, strict product liability, breach of warranty, and fraud regarding talc exposures in defendant's mining operations.
• Prosecution of breach of contract, product liability, false advertising and unfair competition claims on behalf of a consumer product manufacturer against a home shopping network.
• Prosecution of an injunction proceeding for industrial product manufacturer against a competitor for trade secret misappropriation and patent infringement in the Western District of Virginia; case settled favorably after court granted motion for preliminary injunction.
• Prosecution of a challenge to EPA rulemaking on chemical issues for failing to provide due process as required under the Administrative Procedure Act.

Representative Counseling Matters

• Advising several international consumer product manufacturers and retailers with regard to upgrading compliance and crisis management plans, including its call center processing and data collection efforts, to enhance safety and compliance programs and ensure timely reporting of safety-related matters to the CPSC, FDA, and NHTSA.
• Counseling a consumer electronics manufacturer and retailer with regard to the launch of a children's product, including testing and certification requirements, required product labels, product manuals, and warnings with regard to product use.
• Advising a consumer electronics manufacturer regarding interconnectivity of products on the Internet of Things, including security and interference testing, FTC and FCC expectations, and warranties, warnings, and disclaimers.
• Counseling a bicycle manufacturer with regard to defect analysis on both bicycle components and bicycle helmet compliance and CPSC reporting issues and recalls.
• Advising a toy manufacturer on advertising product features to children and alleged misrepresentations on product packaging.
• Reporting choking hazards to the CPSC on behalf of several clients, including a juvenile products manufacturer of infant child care articles and a toy manufacturer.
• Responding to FTC investigation of Made in America claims with regard to products sold for both consumer and government use and advising on process improvements to ensure compliance.
• Advising a fashion retailer on FTC textile and country of origin labeling, faux fur requirements, and requirements with regard to state green chemistry laws.
• Negotiating voluntary corrective action plans with the CPSC and NHTSA with regard to consumer products and automotive components and accessories.
• Counseling on anti-counterfeiting issues and CPSC compliance issues with regard to components of consumer electronics products, including lithium ion batteries and battery cells, chargers warranty terms, and service contract arrangements with regard to the sale of building products and consumer products.
• Advising a fashion retailer in connection with CPSC investigation into alleged violations of the federal flammability requirements.
• Responding to FTC inquiries and related regulatory counseling regarding product advertising and labeling issues, including biodegradability claims, slack fill packaging, Made in America, and "up to" claims.
• Counseling on whether after-sale complaints trigger reporting obligations at CPSC, FDA, or NHTSA, including analysis of acute hazards, such as fire and mechanical failures, and chronic issues, such as exposure to mold or the chemicals used in production of the products.
• Counseling on warranty terms and service contract arrangements and transferability with regard to the sale of building products and consumer products.
• Advising automobile manufacturers regarding privacy compliance, including in connection with the incorporation of cameras on dashboards and the black box information collected and stored in automotive equipment.
• Representing a manufacturer of computers and telecommunications equipment regarding privacy and data breach issues when refurbished products allegedly were not wiped clean and subsequently resold online.
• Advising a health care provider regarding a network intrusion and security breach, coordinating internal investigation and disclosure in accordance with federal and state privacy laws.
• Counseling a major retailer on the terms and conditions of rewards and gift card programs, including issues related to data collection, privacy, and state escheat laws.
• Counseling an online marketing firm on compliance with sweepstakes and intellectual property laws regarding an Internet contest in which participants submitted an original recording of a song in order to win a prize.
• Counseling of a major grocery store chain in regard to its annual sweepstakes contests, including drafting of the official rules and review of print, radio, television, and Internet advertisements.  
• Counseling a national retail chain regarding compliance with COPPA and state sweepstakes laws applicable to a children's art contest involving selection of the artwork to be used on a charitable organization's yearly holiday card.