Day 1 - Wednesday, June 11, 2014

9:00
Consumer Product Safety Act and Consumer Products Safety Improvement Act Primer
1:15
Co-Chairs Opening Remarks
1:30
CPSC Keynotes
2:15
The Brave New World of Practice before the CPSC – Responding to Consumer Complaints and Investigations; Interacting with the CPSC; Adapting to the Visibility of the CPSC Website and Notification Rules
3:15
Preparing for the Future of CPSC Practice – Adapting to the Visibility of the CPSC Website; Exploring the Implications of the Proposed Modifications to Notification, Certification, and Recall Rules
4:15
Afternoon Break
4:30
Examining and Adapting to the Green World – Complying with States’ and FTC’s Green Guidelines
5:30
Conference adjourns to Day 2

Day 2 - Thursday, June 12, 2014

12:45
Networking Luncheon
9:00
Co-Chairs Opening Remarks
9:15
State Enforcement Spotlight
10:00
Morning refreshment break
10:15
After Effects — Diving into the Stormy Seas of Civil Penalties and Understanding How Actions before the CPSC Can Impact Private Litigation in the Future
11:15
The Judicial Perspective — Managing Consumer Products Litigation from Pre-Trial through Trial or Settlement
2:00
Defending against the Pernicious “No Injury” Suit — Deceptive Advertising, Diminution of Value, Class Certifi cation, Undertaking Settlements, and More
3:15
Afternoon refreshment break
3:30
In-House and Carrier Perspective — Tips for Working with Outside Counsel and Experts; Managing Discovery and Litigation Costs and Needs
4:30
The Evolving Field of Concussion Litigation and the Impact on Consumer Products Litigation — Manufacturers and Insurers Beware
5:30
Conference concludes

Day 1 - Wednesday, June 11, 2014

9:00
Consumer Product Safety Act and Consumer Products Safety Improvement Act Primer

Barbara White
Senior Group Counsel, Regulatory
Target Corporation

Matt Howsare
Of Counsel
Mintz Levin Cohn Ferris Glovsky and Popeo PC (Former Chief of Staff of the U.S. Consumer Product Safety Commission)

Section 15(b) of the Consumer Product Safety Act (CPSA) has long imposed the obligation to report certain product problems to the Consumer Product Safety Commission (CPSC). The passage of the Consumer Products Safety Improvement Act of 2008 (CPSIA) has fundamentally affected the enforcement of the CPSA. Prepare for the higher level discussions of the main conference with this up-to-date primer course on Section 15 reporting and the revisions of the CPSIA.

  • Defining a substantial product hazard
  • Pre-reporting actions by company
    • when to hire outside testing
  • Weighing when to report and when not to
  • Practical practice tips for compliance with the reporting requirements
    • Choosing between a fast track approach or traditional review
  • Voluntary standards vis-à-vis product failures
  • What is a defect that “could create” a substantial product hazard?
    • Pattern of the defect
    • Total number of products in commerce
    • Severity of the risk
    • Likelihood of injuries, particularly injuries to vulnerable population groups such as children, the elderly and the disabled
  • Understanding when a full report under 16 CFR 1115.13(d) is needed
  • Streamlining internal processes in order to meet tight Commission deadlines should the need arise
  • Disclosure of reports as “investigations” by the CPSC
    • Rule 6(b)
    • When and how to craft requests for confidentiality
  • Ramifications when the CPSC opens a case file without a company report
  • Expansion of Section 15(b) under the CPSIA
    • CPSC authority
    • Civil penalties
  • Complying with the new CPSIA testing & certification requirements under 16 CFR 1110
    • Identifying categories of products subject to mandatory safety testing under federal law
    • Outlining the certification process — who is responsible for doing a General Certificate of Conformity, and what must the certification contain?
  • Putting a detailed recall action plan in place ahead of time given the short timeframes for response once you have actionable information
    • What are your options if you cannot agree with the CPSC?
    • Exploring alternatives to a recall (coupons, label modification, public safety warnings, stop sale, etc.)
    • Evaluating when it is best to undertake a “voluntary” recall under the “fast track”
    • Understanding the procedure involved in the “voluntary”, “fast track” recall
  • Best practices for notifying retailers and consumers of a recall
  • Developing a roadmap for obtaining and destroying allegedly defective products

Networking Luncheon for Attendees of Workshop (12:00 pm – 1:00 pm )

9:00 am – 12:00 pm (Registration & Continental Breakfast begins at 8:30 am)

1:15
Co-Chairs Opening Remarks

Moderator: Eric A. Rubel
Partner
Arnold & Porter LLP

Cheryl A. Falvey
Partner
Crowell & Moring

1:30
CPSC Keynotes

The Honorable Marietta S. Robinson
Commissioner
U.S. Consumer Product Safety Commission

The Honorable Ann Marie Buerkle
Commissioner
U.S. Consumer Product Safety Commission

In this exclusive address, Commissioner Buerkle and
Commissioner Robinson will provide unique insight into
the past and future of the Commission.

2:15
The Brave New World of Practice before the CPSC – Responding to Consumer Complaints and Investigations; Interacting with the CPSC; Adapting to the Visibility of the CPSC Website and Notification Rules

Michael A. Del Negro
Senior Counsel – Product Safety & Regulatory Compliance
GE Appliances & Lighting

Danielle M. Hohos
Associate General Counsel
Williams-Sonoma, Inc.

Eric L. Stone
Principal
Law Office of Eric Stone

  • Pre-engagement determinations when it comes to light a product is not meeting a standard
    • What to do if the allegation regarding the product is untrue
    • When to conduct testing
    • Obtaining certificates of compliance
  • Navigating the vague reporting standard to determine if and how to report to CPSC
    • Conducting a rapid investigation into the veracity of the complaint without running the risk of late reporting
      • Developing effective inter-corporate communication methods to reduce delay
    • Balancing the cost of notifi cation (and a potential recall) with the possibility of civil penalties for late reporting
    • Manufacturer versus retailer
      • Do the retailers’ reporting obligations differ?
      • Should a retailer notify the manufacturer of a report prior to its issuance?
      • How should the manufacturer respond in the event a retailer notifies first?
  • Initial engagement with the CPSC — best practices for responding to CPSC investigations
    • Marshalling experts to contest allegations of a defect
    • Best practices for limiting public exposure
  • Interacting with the CPSC Website and responding to inaccurate claims by consumers
    • Update on the status of and evaluating the precedential effect of Company Doe v. Public Citizen
  • Pre-emptive measures — having company personnel monitor consumer websites

3:15
Preparing for the Future of CPSC Practice – Adapting to the Visibility of the CPSC Website; Exploring the Implications of the Proposed Modifications to Notification, Certification, and Recall Rules

Cary Silverman
Partner
Shook Hardy & Bacon LLP

Inez M. Tenenbaum
Partner
Nelson Mullins Riley & Scarborough LLP (Former Chairman, U.S. Consumer Product Safety Commission)

  • Interacting with the CPSC Website and responding to inaccurate claims by consumers
    • Update on the status of and evaluating the precedential effect of Company Doe v. Public Citizen
  • Preparing for the new rules modifying Rule 6(b) publication requirements
    • Examining the new and proposed rules — understanding the procedure and steps towards
      notification
    • Determining new strategies to cope with the increase in publicity
    • Evaluating whether court intervention may be possible in the same vein as Company Doe v. Public Citizen
  • Understanding the proposed modification to Section 1110 and certification
    • Importer versus manufacturer
    • Third party certification
    • Self-certification
    • Testing of components
    • “Made in the USA”
  • Exploring the status and potential effects of the proposed modifications to the recall process
    • What does it mean for a “voluntary” recall to become “mandatory” or subject to a “binding agreement”?
    • Will “binding agreements” be “one size fits all” and remove any corporate flexibility in tailoring effective methods of achieving a recall?
    • What is the effect of having “open ended” agreements?
    • How will the proposed change potentially impact corporate participation in the “fast track” as opposed to “lawyering up” and fighting?

4:15
Afternoon Break
4:30
Examining and Adapting to the Green World – Complying with States’ and FTC’s Green Guidelines

Jeffrey B. Margulies
Partner
Norton Rose Fulbright LLP

William F. Tarantino
Partner
Morrison & Foerster LLP

Candace N. Rodriguez
Associate General Counsel
The Home Depot

  • Identifying states with active or pending green chemistry legislation
  • The cost of doing business — complying with California’s regulations
    • Labeling considerations resulting from Proposition 65
    • Practice tips for handling private litigation arising from Proposition 65
    • Evaluating the recently released list of Priority Products
      • How broadly across the industry are these products used?
      • Are there lessons to be gleaned as to what products may come under scrutiny in the future?
    • Taking the proactive approach — testing existing products for chemicals listed in the Green Chemistry Initiative
    • Strengthening the chinks in the supply chain
      • Safeguarding your product by monitoring the composition of components produced by suppliers
      • Drafting necessary contractual protections, including indemnification agreements, to ensure compliance by suppliers
    • Preparing for investigations under the Green Chemistry Initiative
      • Evaluating whether there are alternatives, and the costs of shifting production
      • Analyzing whether an “alternative analysis report” could amount to an admission of defect in subsequent litigation
      • Determining the environmental impact of alternatives
      • Understanding how these compliance efforts will affect potential private actions in the future
  • Developing defenses to allegations of admission of a defect
  • Mobilizing expert reports on the economic impact of the use of alternatives
  • Case study: Exploring the effects of the Federal Trade Commission’s “Green Guidelines”
    • Analyzing the terms of the Sherwin-Williams and PPG Architectural Finishes settlements
    • Resolving when it is permissible to claim a product is “free of” an ingredient
    • Evaluating what qualifies as “background levels”

5:30
Conference adjourns to Day 2

Day 2 - Thursday, June 12, 2014

12:45
Networking Luncheon
9:00
Co-Chairs Opening Remarks
9:15
State Enforcement Spotlight

Carol Kraege
Reducing Toxic Threats Initiative Coordinator
Washington Department of Ecology

While lobbyists and politicians debate reform of the
Toxic Substances Control Act on Capitol Hill, states have
stepped into the void in order to regulate the ingredients in
or composition of consumer products. Additionally, state
enforcers remain vigilant in promoting consumer safety
while preventing fraud. In this exclusive session, Ms.
Carol Kraege will identify states with active or pending
initiatives, and discuss the philosophies and motivations
behind such legislation. Ms. Kraege will also explore
the methodology used to identify priority chemicals and
products, and highlight activities that manufacturers and
retailers can prospectively take to promote the health and
safety of their customers.

10:00
Morning refreshment break
10:15
After Effects — Diving into the Stormy Seas of Civil Penalties and Understanding How Actions before the CPSC Can Impact Private Litigation in the Future

Jill Furman
Deputy Director, Consumer Protection Branch
U.S. Department of Justice

Timothy L. Mullin, Jr.
Principal
Miles & Stockbridge P.C.

Robert B. Hopkins
Partner
Duane Morris LLP

Moderator

Moderator: Eric A. Rubel
Partner
Arnold & Porter LLP

  • Understanding the factors used to determine when civil penalties will be sought and how they will be assessed
  • Discussing best practices for negotiating with the CPSC
  • Detailing the scope of discovery, and providing best practices to responding to subpoenas and requests for documents
  • Surveying and distilling lessons from recent settlements — what factors motivate the imposition and size of civil penalties?
  • Analyzing the culpability implications of settlement with the CPSC upon subsequent private litigation
  • Knowing when to dig in and go to the DOJ

11:15
The Judicial Perspective — Managing Consumer Products Litigation from Pre-Trial through Trial or Settlement

Hon. Walter J. Brudzinski
Chief Administrative Law Judge
U.S. Coast Guard

Hon. David J. Waxse
Magistrate Judge
U.S. Dist. Ct., D. Kan.

Hon. Richard A. Kramer (ret.)
Superior Court Judge
JAMS

Hon. James F. Holderman
District Judge
U.S. District Court for the Northern District of Illinois

Hon. Fernando J. Gaitan Jr.

U.S. Dist. Ct., W.D. Mo.

2:00
Defending against the Pernicious “No Injury” Suit — Deceptive Advertising, Diminution of Value, Class Certifi cation, Undertaking Settlements, and More

Francis A. Citera
Shareholder; Co-Chair, Products Liability & Mass Torts Litigation Group
Greenberg Traurig, LLP

Patrick J. Ivie
Executive Vice President
KCC

Christopher M. Young
Partner
DLA Piper LLP

Ronald A. Wasinger
Vice President & Deputy General Counsel
Sony Electronics Inc.

Moderator

Cheryl A. Falvey
Partner
Crowell & Moring

Whether born of a deceptive advertising claim or an allegation that a recall diminished the value of a product, “no injury” suits are alive and well, and show no signs of disappearing any time soon. In this session, the various claims and defenses to these cases will be examined, providing keys to culling the proliferation of these actions. Topics for discussion include:

  • Analyzing the new trend of “diminution of value” claims
  • Dissecting the scope of “deceptive advertising” allegations
    • Identifying label mistakes that are ripe for litigation
    • Evaluating the efficacy of claims based on the medium of advertising (label, tv/radio commercial, website, video on social media, etc.)
  • Are there lessons to be learned and applied from the “all natural” litigation against the food industry?
  • Exploring the issue of class certification
    • Analyzing the effects of the recent Supreme Court decisions of Dukes v. Wal-Mart and Comcast Corp. v. Behrend
    • Evaluating the impact of the Third Circuit decision of Carrera v. Bayer Corp.
    • Debating the issue of standing where a plaintiff purchases one product but sues on behalf of purchasers of a “substantially similar” product
  • Observing effective challenges to class certification, and discarding arguments that are no longer entertained
  • Risk management strategies to avoid suit in the first place — from labeling to settlement with the CPSC
  • Conducting cost effective and strategic discovery
    • Negotiating e-discovery schedules — the advantages of agreeing to search terms and limiting custodians
    • Knowing when to request court intervention
    • Analyzing the efficacy of bifurcating discovery, and identifying jurisdictions where bifurcation is preferred
  • Considering settlement related issues
    • Noticing the class in a product case
    • Anticipating the number of claims
    • Identifying techniques for reducing fraudulent claims
  • Examining the substantive and procedural considerations for when to file a motion to dismiss and when to challenge class certification
    • Survey of courts with a preference for early class challenges

3:15
Afternoon refreshment break
3:30
In-House and Carrier Perspective — Tips for Working with Outside Counsel and Experts; Managing Discovery and Litigation Costs and Needs

Kristin M. Wilson
Risk Management Senior Counsel & Director of General Liability
Nordstrom

Emily Muceus
Senior Attorney
Deere & Co.

Kevin Clunis
Senior Corporate Counsel
Colgate-Palmolive Company

Michael A. Del Negro
Senior Counsel – Product Safety & Regulatory Compliance
GE Appliances & Lighting

Danielle M. Hohos
Associate General Counsel
Williams-Sonoma, Inc.

Moderator

Moderator: Jeffrey J. White
Partner
Robinson & Cole LLP

  • Identifying what a client needs to know before engaging outside counsel
  • Managing outside counsel through realistic and accurate litigation budgets
  • Best practices for communication by outside counsel with clients — how often and how detailed should a report be?
  • Reducing the burden of discovery production versus the cost associated with protracted discovery disputes
  • Evaluating the efficacy of e-discovery schedules and software
  • Budgeting considerations relating to motions to dismiss and challenges to class certification
  • Managing the cost of defending cases that require retention of expert witnesses
  • Knowing when to settle or take a case to trial
  • Pet peeves: “worst practices” that outside counsel should avoid committing

4:30
The Evolving Field of Concussion Litigation and the Impact on Consumer Products Litigation — Manufacturers and Insurers Beware

Mark S. Granger
Principal and Founder
Granger Legal Consulting

Gary Wolensky
Partner
Hewitt Wolensky & McNulty LLP

In the wake of the NFL settlement, smaller scale
litigation has already started and the likelihood of larger
scale class actions, in the great traditions of asbestos
and tobacco litigation, looms on the horizon. Unique
challenges face this form of litigation, though, such as
the difficulty of diagnosing brain trauma from single or
repeat concussions. In addition, due to the delay in the
onset of severe conditions or visible injury, any number
of insurance policies can be on the hook for coverage.
This panel will address the challenges exclusive to this
form of litigation before turning to discussing necessary
steps — contractual and other — that manufacturers of
sports equipment must take now to reduce the likelihood
of harm to consumers and the resultant litigation that will
necessarily follow.

5:30
Conference concludes