Recently, I’ve received several requests for resources explaining the anatomy of a food-borne illness claim. In other words, what events can be expected, and when? What can or should a company (in particular the legal department) do in response to a claim?

Part I – Notice of an Outbreak (and Possible Claims)

 

First off, don’t panic. Your company’s crisis management team (which has been well-rehearsed for this scenario) should convene action upon the first notice of a possible outbreak—even before verification and before claims are apparent. Food safety experts should contact the health departments that may have identified the outbreak. Together with the legal, sales and quality assurance departments, your food safety experts should be involved in a full investigation of the possible outbreak. The earlier the intervention, the greater the possibility of collecting key information that may be useful in determining whether your company is linked to the outbreak and pinpointing other possible sources of the outbreak. Public relations experts should also be consulted at the first possible moment.

 

Checklist for the legal department:

 

  • Log events, actions and communications. This is critical for responding to government agencies and to claims.
  • Record all reported injuries. Collecting information about potential claims early is a key to mitigating those claims and future legal costs.
  • Notify insurers. Insurance companies require prompt notice; insurers may also have assets available for crisis response.
  • Document the investigation. Litigation may be protracted, and a well-documented investigation may be key to the company’s defense.
  • Institute a litigation “hold” on the destruction of any company documents or emails. Don’t turn a bad situation into a nightmare; spoliation claims can take on a life of their own.
  • Retain product samples for future testing. This may be critical to support experts’ opinions at trial and to preserve claims against suppliers.
  • Review and retain vendor/supplier documents. Recovery against suppliers could be as important as or more important than insurance recovery.
  • Assess the merits of a consumer hotline. It could be helpful in disseminating accurate information to consumers (inaccurate or conflicting information can lead to litigation) and in collecting information about the pool of potential plaintiffs.
  • Assess the merits of a consumer/vendor reimbursement program. Like having a consumer hotline, providing immediate reimbursement could help dampen the volume of future plaintiffs.

Stay tuned for Part II – Receipt of the Demand Letter.