Thursday, December 1, 2011
7:45 Registration Begins and Continental Breakfast
8:30 Co-Chairs’ Opening Remarks
Ani Gulati
Chief Litigation Counsel
General Mills, Inc. (Minneapolis, MN)
Brian Anderson
Partner, Class Actions, Mass Tort, and Insurance Law Practice Group
O’Melveny & Myers LLP (Washington, DC)
8:45 Food and Beverage Consumer Fraud Litigation – The Year in Review
Paul J. Reilly
Partner
Baker Botts LLP (New York, NY)
Timothy G. Blood
Managing Partner
Blood Hurst & O’Reardon LLP (San Diego, CA)
- Identifying what states have been targeted as favored jurisdictions for initiating food and beverage consumer fraud claims
- update on the development of consumer fraud caselaw involving food and beverage manufacturers – what’s going on in CA, FL, NJ and NY?
- Examining which jurisdictions have used arbitration as a means for resolving cases brought under state consumer protection statutes
- The caselaw arsenal - review of seminal caselaw decisions you should keep in your litigation toolkit – Weiner v. Snapple Beverage Corp., Chavez v. Nestle USA, Inc., Carrea v. Dreyer’s Grand Ice Cream, Inc.
- Can we say that? – outlining specific areas of focus by plaintiff’s counsel
- natural, HFCS, trans fat and obesity claims
- exploring allegations around essential nutrients added to food and beverages for fortification purposes – DHA, omega-3 fatty acids, probiotics
- Food and beverage consumer fraud litigation vs. pharmaceutical product liability litigation – evaluating similarities and trends in the future of litigation within the food and beverage industry
- A perspective from the plaintiff’s bar – what’s next?
9:30 A View from the Bench on Class Certification and Trial Tactics in Food & Beverage Consumer Fraud Litigation
Hon. Richard A. Kramer
Presiding Judge, Complex Civil Litigation Department
Superior Court of California, County of San Francisco (San Francisco, CA)
Hon. Peter A. Flynn
Circuit Judge, Circuit Court of Cook County - Chancery Division
Illinois State Court (Chicago, IL)
Andrew S. Tulumello
Vice-Chair, Class Actions Practice
Gibson, Dunn & Crutcher LLP (Washington, DC)
During this panel, hear from judges experienced in overseeing complex consumer fraud litigation as they share their insights on:
- How judges interpret and analyze allegations posed by plaintiff’s counsel in the context of consumer fraud class actions – how is a class evaluated to ensure all requirements of Rule 23 are met
- reliance
- causation
- economic loss
- Judicial handling of experts when a Daubert analysis occurs – how are experts considered by judges when class certification is being challenged
- What judges prefer and dislike in terms of trial tactics utilized by counsel on both sides
- what you could be doing to more efficiently try and resolve your case
- tips for persuading judges in consumer fraud class action litigation
10:30 Morning Coffee Break
10:45 How to Attack the Consumer Fraud Putative Class and Effectively Challenge Causation: Disputing Certification of the “No-Science” Class Action
Kenneth Odza
Corporate Counsel, Food Safety
Kellogg Company (Battle Creek, MI)
Ani Gulati
Chief Litigation Counsel
General Mills, Inc. (Minneapolis, MN)
Brian Anderson
Partner, Class Actions, Mass Tort, and Insurance Law Practice Group
O’Melveny & Myers LLP (Washington, DC)
- Evaluating whether or not individual issues predominate
- Arguing the insufficiency of the plaintiff’s theory of causation
- making the “but for” connection
- dissecting why the purchase was made
- Economic loss - was the benefit of the product obtained, what are the damages?
- Addressing consumer reliance as a substitute for causation
- Understanding recent judicial views on class certification in the context of consumer fraud claims
- where courts have found that misleading advertising practices create “common questions”
- potential defense arguments for requiring that plaintiffs demonstrate individual reliance by each member of the class on the advertisement in question
- Evaluating the impact of Wal-Mart Stores, Inc. v. Betty Dukes on class requirements under Rule 23
11:45 Effective Defenses to Deceptive Packaging and Labeling-Based Claims
Lori J. Marco
Vice President - External Affairs, General Counsel
Hormel Foods (Austin, MN)
Kristin R. Eads
Partner, Food and Agribusiness Litigation
Faegre & Benson LLP (Minneapolis, MN)
- Overview of what theories have worked/not worked when arguing a motion to dismiss
- primary jurisdiction
- preemption
- Asserting a lack of standing, injury and/or loss
- Responding to implied and express warranty claims aimed at health benefits asserted on the package label
- Persuasively clarifying the reasonable consumer standard – drawing the line between deceptive representations/product packaging and what a reasonable consumer would believe
- Effectively asserting a lack of misrepresentation – highlighting the unreasonable nature of the alleged consumer reliance
- Discrediting the validity of plaintiff’s expectations above and beyond nutrition facts listed on the product label
- Arguing the value of what the consumer received
- Meeting challenges raised by parallel proceedings
- concurrent state and federal actions
- private suits and class actions
Resolving State AG Actions
- Deciding when and how to concede in a government-initiated action
- will future liability be limited?
- weighing the pros and cons of negotiating a multi-state settlement
- Knowing what defenses are/not available in state AG actions
- Bracing for civil remedies available in state AG actions – disgorgement
- Understanding the nature of collaborations between state AGs and the FTC
1:00 Networking Luncheon for Attendees and Speakers
2:15 Keynote Address: Attorney General Enforcement of State Consumer Protection Laws within the Food & Beverage Industry
Vaishali Rao
Assistant Attorney General
Illinois Attorney General (Chicago, IL)
- Disgorgement – when is a case ripe to pursue?
- Overview of office priorities and areas of focus for food and beverage consumer fraud claims: labeling, health benefits, ingredients
- Evaluating when and why State Attorneys General utilize plaintiff’s counsel to bring class action litigation
2:45 Case Study: How to Prevail on a Motion to Dismiss – Inside DeBenedetto v. Denny’s
Scott A. Elder
Partner
Alston & Bird LLP (Atlanta, GA)
During this panel, Scott Elder will provide an insider’s look into how he successfully sought dismissal of a putative class action involving allegations brought under the Illinois and New Jersey Consumer Fraud Acts. Learn what arguments ultimately persuaded the Court to dismiss the class, as well as how the theories utilized in this case may prove effective in challenging consumer fraud class action claims brought against food and beverage manufacturers in other states.
3:15 Afternoon Refreshment Break
3:30 Minimizing the Ripple Effect of FDA and FTC Enforcement Actions: How to Mitigate Downstream Litigation Exposure Post-FDA Warning Letters, FTC Actions and On-Site Inspections
Nancy Dowling
General Counsel
The Dannon Company Inc. (White Plains, NY)
Bryan T. Granger
Vice President of Compliance & Government Relations
C&S Wholesale Grocers, Inc. (Keene, NH)
Claudia A. Lewis-Eng
Co-Chair,
Dietary Supplements, Cosmetics and Functional Foods
Venable LLP (Washington, DC)
- Understanding what types of behavior can trigger negative attention from the government
- record maintenance, preservation and policy documentation
- is your house in order? what to document, when and how
- what about those companies in your chain of commerce?
- knowing where the weak spots are in your product manufacturing, distribution and supply chain
- how to handle knowledge or suspicion of potential regulatory violations
- adulteration, contamination and misbranding – knowing what the standard is
- How to respond to government warning letters without creating a litigation roadmap - crafting your response to an FDA Form 483, warning letter or consent order
- Communication is key – how to deal with adverse publicity, particularly when government claims are cast using “fraud” language or arise as the direct result of government action
- Ensuring appropriate corrective action is taken when a food safety or product advertising/labeling issue is identified
On-Site Inspections
- How to prep your books
- Ensuring proper internal controls are in place
- Preparing your team for “surprise” inspections
- Post-inspection follow-up
- Compliance cleanup – ensuring issues found during an inspection are appropriately remedied
- outlining corrective steps for problems identified during inspection
- implementing and documenting preventive measures and revised guidelines
- conducting training to ensure the trickle down of new procedures and communicating with impacted staff at all levels
4:45 How Consumer Information Can Be Used Against You: Discussing What Types and How Information Collected Through Customer Call Centers Should be Treated
Edward Shin
Senior Corporate Counsel
Welch Foods Inc. (Concord, MA)
Sarah Roller
Chair, Food & Drug Law Practice
Kelley Drye & Warren LLP (Washington, DC)
- Preventing pitfalls when recording data so as to minimize litigation exposure
- Monitoring employee responses and follow-ups with customers – knowing what’s being communicated and by whom
- Knowing what type of information could be discoverable should litigation arise
- Identifying what information can be subject to attorney-client privilege
- Discussing whether data received through a call center can/should be subject to a litigation hold
5:30 Conference Concludes
Conference Details