Tag: liability

The Case That Makes You Go “Ewww”

A Washington Supreme Court decision, Bylsma v Burger King Corp., has decided that in Washington, under the Products Liability Act, an individual who claims damages for emotional distress in the absence of having actually consumed a product may bring a suit for damages. Other than proving "objective symptomology", the seller of that product will have no defense to the action.… Continue Reading

Upcoming Events

On December 8, 2011 I participated in a webinar organized by the Strafford Publication Group. In conjunction with Jonathan Cohen from the Gilbert firm and Joseph Bottiglieri with Bonner Kiernan Trebach & Crociata LLP, we presented Food Safety Claims: Products Liability Issues on the new requirements under the Food Safety Modernization Act. Nicole Hancock of … Continue Reading

Learn How to Prepare for an FDA Inspection

Next Wednesday at the ACI Food Regulatory Summit in Chicago I’ll be presenting a talk entitled "Curtailing Downstream Liability Arising Out of On-Site Inspections: How to Prepare and What to Do Should Government Come Knocking." My slide-deck can be linked here. Topics that I plan to cover include: FDA’s plan to increase frequency of inspections … Continue Reading

Food Companies Should Revisit Insurance Program and Other Risk Management in Light of Emerging Massive European Union E. coli Outbreak

The E. coli outbreak unraveling now in the European Union, centered primarily in Germany, is setting new records for both the number of affected persons and the number of persons diagnosed with Hemolytic Uremic Syndrome (HUS), a serious complication from E. coli infection (HUS can lead to kidney failure, brain damage and death). As of … Continue Reading

What to Ask About Recall or Product Contamination Insurance Coverage

If they don’t already have it, I advise my clients to talk with their insurance broker about purchasing recall insurance (otherwise known as product contamination insurance) . For clients who have recall insurance, I advise them to make sure the policy provides the coverage they expect. Recall insurance is a different animal than other policies … Continue Reading

Defeating a Consumer Fraud Putative Class Case Early

Last week at the DRI products liability conference in New Orleans, Lara White from Adams and Reese and I presented "Regulatory Compliance Alone Is Not Enough: Understanding and Mitigating Consumer Fraud Claims." Our presentation dealt with putative class claims aimed at the marketing and labeling of food products. A link to the slide-deck can be … Continue Reading

Looking for Information and Presentations on FSMA, Recalls and The RFR? Look No Further.

I’ll be speaking at several events over the next two months on the Food Safety Modernization Act (FSMA) and how this comprehensive and far reaching legislation affects the status quo for food companies. Two of these events are free, and all promise to address relevant and critical issues for those involved in the food industry. a. May … Continue Reading

Proposed Bill Would Eliminate the Corporate and LLC Shield for Many Washington Contracts

Note: This blog entry was  authored by Douglas Batey and originally published on the LLC Law Monitor blog. The Washington legislature is currently considering a bill that would apparently require any contract that calls for the payment of money by an LLC or corporation, to include an extra signature by an authorized representative that would render the … Continue Reading

Strategies to Defeat Putative Class Claims Challenging Labeling and Marketing of Food Products

April 8, 2011 – Scott Rickman from Del Monte, Lara White from Adams and Reese, and I will be talking at the Defense Research Institute (DRI) food law break-out. This event is held in conjunction with the DRI annual product liability conference in New Orleans. Click here for the complete manuscript that we’ve prepared to … Continue Reading

Food Safety Tools and Defenses for Cheesemakers

Cheesemakers have endured a string of bad publicity recently over food safety. Cheesemakers, especially raw milk cheesemakers, are in the cross hairs of the FDA, the media, retailers and plaintiffs’ lawyers such as Bill Marler. I was interviewed last week on FDA seizure issues by the Pacific Northwest Cheese Project. Click here for the PowerPoint … Continue Reading

Donate Food Generously and With Immunity

By Guest Blogger Matti Neustadt Storie It’s that time of year again – time to be thankful for all that we have and to reflect on those who don’t have as much. Many people consider working at soup kitchens and donating to local food banks as a way to help. But what liability attaches to … Continue Reading

Take-Aways from November 17 Webinar: Sustainable Foods Increase Litigation Risks: Developing Strategies to Minimize Exposure

On November 17, we held our final webinar in a three-part series on bringing sustainable food products to market. Take-aways from the third webinar include: • Be aware that "natural" is a hot button when advertising and labeling sustainable food products. • "Sustainable" is not addressed in FTC Green Guides so it is imperative to … Continue Reading

Comment On Recent New York Times E. Coli and Beef Article: How Retailers Can Protect Themselves

Co-Authored By Guest Blogger Scott Hansen According to its website, last Sunday’s New York Times article on E. coli and beef is among the most widely read pieces published by the newspaper this week. The article tells the story of a 22-year-old Minnesota dance instructor who was left paralyzed after being infected with a strain of E. … Continue Reading

Sodium Putative Class Action Suits to Become Epidemic?

Following the putative class suit filed last month in New Jersey by the Center for Science in the Public Interest (CSPI) against Denny’s, a similar suit was filed in Illinois (apparently CSPI is not directly involved in this action). The Illinois complaint can be found here. Like the New Jersey complaint, the Illinois action alleges … Continue Reading

Litigation and Insurance Coverage Risks from Swine Flu (H1N1)

For food companies (and other businesses), a dangerous and deadly flu pandemic (e.g., H1N1) can be a business disaster. Adding insult to injury is personal injury litigation and the accompanying insurance coverage nightmares that follow. What Are the Personal Injury Litigation Risks? For restaurants, airlines, cruiselines, supermarkets, hospitals, schools, and other institutions, risk comes from … Continue Reading

Before the Outbreak, Preapprove Defense Counsel with Insurer

When a food-borne illness outbreak happens, few food companies (especially those whose brand is at stake) want an unfamiliar defense lawyer who has little knowledge about food-borne illness responding to claims asserted against them. Unless a food company maintains a high, self-insured retention or has the lawyer of its choosing preselected, its insurer might appoint … Continue Reading

Preventing “Piercing of The Veil” – Practical Tips For Food Companies – What to Do and What to Avoid (part III of III)

By guest blogger Jerry Chiang The following list will help you preserve your liability shield and protect yourself from the liabilities of your corporation or limited liability company (“LLC”). This is not intended to be an exhaustive list but rather an illustrative list of activities that will either preserve one’s liability shield or undermine it. … Continue Reading

Preventing “Piercing of The Veil” – Practical Tips For Food Companies – Factors Courts Review for Veil Piercing (part II of III)

By guest blogger Jerry Chiang When courts decide whether to pierce the corporate veil, their analysis is typically a three-step process: (1) whether the defendant-owner exerts sufficient control over the business entity, (2) whether there has been an abuse of corporate form, and (3) whether there is an injury to a third party. There is … Continue Reading

Preventing “Piercing of The Veil” – Practical Tips For Food Companies – Introduction (part I of III)

By guest blogger Jerry Chiang In starting any business enterprise, especially in the food industry, incorporating the business as a corporation or limited liability company is as important as having a good product or solid business plan. Incorporation is essential because it shields owners from the liabilities of their business. A lawsuit against the business … Continue Reading

Tort Damages Not the Only Exposure from Food-Borne Illness Outbreaks

For lawyers and insurance adjustors, compartmentalizing food-borne illness claims is easy. They often see their jobs solely as minimizing the tort liability and legal fees. In my experience, attorneys and adjustors often fail to appreciate how outbreaks can affect a client’s (or even a whole industry’s) business going forward. Often, the long-term business losses of a … Continue Reading

ACI Announces 3rd National Forum on Food-Borne Illness Litigation

The American Conference Institute announced this week its latest food litigation conference. Here’s the conference brochure. The conference will take place in Chicago on October 26-27 at the Sutton Place Hotel. Plaintiffs’ lawyer Bill Marler and defense lawyer Al Maxwell are co-chairing the conference. This year promises a greater variety of presentations by in-house food … Continue Reading

Liability Limits: How Much Should Your Food Company Maintain?

Food business clients frequently want to ensure that they have sufficient liability limits in the event of an outbreak (they also want to make sure they have adequate coverage, but this is a separate discussion). Determining the amount of a business’s limits depends on the business’s possible exposures. No one-size-fits-all formula is available. Every business … Continue Reading

Improved Surveillance Will Lead to More Food-Borne Illness Claims

We’ve explained previously in this blog why increased surveillance by state and federal agencies will lead to detection of more outbreaks (and, therefore, more legal exposure). Others seem to agree. Law360 published a nice interview with Jim Neale at McGuire Woods, another lawyer experienced in the food liability arena ( a Law360 subscription is needed … Continue Reading

More on Reducing the Risk of Failure – Focus on Shifting Liability For Consumer Claims

Food Safety Magazine ran an interesting piece by Aaron Krauss titled “Reducing the Risk of Failure.”  The article was part of the magazine’s focus on limiting liability for food companies.  Mr. Krauss includes a good discussion of the pros and cons of indemnities and disclaimers of warranty and liability as ways to shift or reduce … Continue Reading
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