Key takeaways from our London International Disputes Week session:
As part of London International Disputes Week, Squire Patton Boggs were delighted to co-host a panel session on “From Recall to Resolution: The Lifecycle of Mass Product Litigation” with 2 Temple Gardens.
The panel was chaired by Miles Robinson from Squire Patton Boggs, alongside colleagues John Burlingame and Nicola Smith, 2 Temple Gardens’ Charles Dougherty KC and Meghann McTague, with Chris Occleshaw of Sedgwick Brand Protection.
Using a hypothetical scenario to illustrate how a dispute might develop, and the potential issues that could arise, attendees were taken through each stage of a product liability issue – from initial awareness of the issue to a group claim.
Nicola Smith discussed the immediate regulatory response required once a company becomes aware of a potential safety concern. The panel was then invited to consider whether any sector-specific product recall provisions applied, and to reflect on the obligation to: (i) notify the competent authority; and (ii) implement corrective actions, including bringing the product into conformity, withdrawing it or issuing a recall. John Burlingame explored and compared the US position, noting the differing notification position.
Chris Occleshaw addressed the practical considerations associated with implementing a product recall, highlighting challenges such as limitations in local warehousing infrastructure, the risk of fraudulent activity exploiting the recall process and the improper (and potentially hazardous) disposal of defective products at home by consumers. The panel then considered alternatives to a full product recall, along with measures to improve the effectiveness of the recall process. These included the use of over-the-air software updates to defective products, as well as the advantages of unique serial numbers to enhance traceability and mitigate against fraud.
John Burlingame offered a US perspective on mass claims for product liability in the US, considering the structure of claims in the US and the causation issues that arise in these claims. Charles Dougherty KC and Meghann McTague then turned to the UK position. They highlighted the various procedural routes by which claims could be brought, the strategic considerations involved from both claimant and defendant side, as well as whether potential legislative changes in the UK would impact the position. They also discussed why successful claims in the US did not necessarily translate into viable claims in other jurisdictions, particularly the UK.
In closing, the panel considered the increased frequency of product recalls and how that has lowered the potential brand damage that such a recall causes. Finally, the session considered the impact of social media when it comes to increasing the risks to business of product recalls.
