Consumer Product Regulation

We work directly with the CPSC and other government agencies and other entities responsible for the regulation of consumer products, responding to inquires and negotiating on behalf of our clients. We have extensive experience with the processes and procedures for reporting and negotiating with the CPSC, paired with authoritative insight into the operational and business challenges of recalls and the complex risk assessments that drive our clients’ and the CPSC’s decision-making.

Our capabilities include:

• Advising clients as to the scope and legal, regulatory, and business ramifications of a potential recall of a recall and the details to make a determination
• Developing safety-monitoring systems
• Filing formal mandatory safety related reports
• Providing important guidelines for conducting recalls
• Reviewing consumer complaints and advising on reporting requirements

As long-term partners to our clients in the consumer products industry, our attorneys also know how to establish internal reporting protocols, review and establish critical patterns in consumer complaints, work efficiently and productively with the CPSC, and help clients navigate decision-making around product recalls.

We provide proactive safety and regulatory compliance counsel to help clients avoid risk and achieve their long-term business goals. We help clients establish and maintain safety systems and compliance procedures tailored to their business models as well as their niche areas of the consumer product market—from the high-risk and highly regulated children’s products sector to the fast-evolving electronics and technology sector. We review consumer complaints along with expert testing analysis to help clients identify safety issues early, and we efficiently move to identify and negotiate the correct scope of a recall to avoid unnecessary costs as well as consumer and class-action litigation. With a mastery of the obligations and procedures involved in safety reporting and voluntary recall negotiations, we help clients avoid fines and even civil penalties from the CPSC. We also help manufacturers develop tailored Product Safety Committees and Product Liability Prevention Programs, as well as review instruction manuals, warnings, warranties, and advertising materials.

We provide recommendations on consumer product warning labels with an eye to format, content, and placement requirements based on the latest relevant industry standards. Our experience includes working with major international children’s products and electronics manufacturers in developing warning labels for innovative consumer products presenting novel or untested risks—including warning for videogame consoles and virtual reality products that presented potential risks involving photosensitivity, epilepsy, preexisting conditions, and other potential adverse effects.

Our attorneys also retain respected experts to produce case studies on safety issues regarding warnings and labels for new products. We have overseen case studies, focus-group testing, and other research tactics that help our clients make informed decisions spanning the full potential life cycle of a product, from conceptualization to research and development, marketing, and recalls. Our attorneys act as a liaison between the client and expert to communicate the findings and offer privileged counsel.

Our firm’s reputation was forged during some of the most complex regulatory crises to strike the consumer products industry. Whether we have helped a client identify a pending crisis before it breaks or parachute in to take control of a quickly evolving situation, we move decisively and effectively to triage and initiate a comprehensive response. Our crisis management services span product recalls under intense government and public pressure; handling press inquiries and crisis communications; liaising with regulatory, investigative, and municipal bodies; and developing a litigation and defense strategy.

We understand that avoiding a lawsuit is more important—and more cost-effective—than winning one. As a result, we often advise clients on risk management and claims-handling. Our services cover the full spectrum of minimizing and managing risks associated with the design, manufacture, and sale of consumer products, including:

• Counseling clients on the scope and application of industry and governmental standards
• Assisting in the preparation of appropriate owners’ manuals, warnings, and instructions regarding the proper use—and dangers of misuse—of products
• Advising on protocols for the fast and efficient analysis and elevation of claims and complaints
• Developing state-and nationwide claims-handling procedures based on our deep knowledge of industry trends, developments in the plaintiffs’ bar, and risks inherent to “hellhole” jurisdictions

Our lawyers have assisted in developing hundreds of manuals for a wide array of industrial and commercial goods. Our involvement in the development of these materials is based on our vast experience in, and knowledge of, the multitude of ways in which plaintiffs have exposed shortcomings of less carefully drafted manuals, and the manner in which they will pursue “failure to warn” claims.

Given today’s litigation climate, it is also essential that manufacturers implement a document-retention policy in order to provide for the preservation and proper destruction of corporate documents in conformity with federal and state laws. Such policies must account for electronic documents that may be stored on all computers company-wide. While this is a daunting task, our lawyers have the requisite experience to guide our clients through this potential minefield.

Our attorneys have successfully defended Fortune 500 consumer product manufacturers and other companies in national and state-wide class actions, employing creative strategies to win early dismissal of claims and to defeat class certification on motion. Combining knowledge of regulatory issues with extensive trial experience and a keen understanding of media management, our dedicated Class Action Litigation team is exceptionally qualified to represent product manufacturers’ interests.

As a law firm founded by trial lawyers, handling the complex high-exposure trials and litigation is part of Goldberg Segalla’s DNA. We have extensive experience litigating high-risk mass torts and class actions in the consumer products space—and we involve our associates in these matters early, to ensure that all of our clients can count on qualified trial counsel from their entire legal team. We are skilled at the delicate and highly nuanced art of jury selection and presenting cases involving traumatic scenarios in such a way that they are judged on the facts and law, not the emotional connection sought by plaintiff’s attorneys―skills that have proven critical in achieving the best possible results for product manufacturers. We also coordinate media strategy with product manufacturers in high-profile cases and successfully minimize their impact on the client’s image, credibility, and ongoing operations.

Representative matters:

• Helped a major U.S.-based children’s clothing supplier defeat a nationwide class action arising from the sale of certain garments that allegedly caused rashes and allergic reactions to sensitive children’s skin. Over 100 million garments were at issue and plaintiffs sought to certify a class of all purchasers, regardless of whether their children had suffered a rash, seeking the return of the full purchase price (totaling over $1 billion), plus other incidental costs. Goldberg Segalla was retained as national coordinating counsel for the client even before suit was filed. We coordinated the client’s response to the initial claims, retained leading experts, helped the client develop a response to media inquiries, coordinated the client’s CPSC reporting obligations, and with local counsel developed and implemented the entire litigation defense strategy. The federal court denied the plaintiffs’ motion to certify the class, essentially adopting the arguments raised in our briefs, including a relatively novel judicial standing argument.
• Defended a prominent sporting goods manufacturer in a New Jersey class action in which a composite barreled baseball bat marketed as having the bat performance factor compliant with children’s baseball league standards was later prohibited to be used by children in certain leagues. The court granted the defendants’ motion to dismiss the case, holding that the vague and generalized claims in the plaintiffs’ amended complaint did not meet the pleading criteria outlined in the New Jersey Consumer Fraud Act.
• Obtained dismissal of a class action against a fan manufacturer, alleging that manufacturer engaged in unfair and deceptive acts and practices in violation of the Maryland Consumer Protection Act (MCPA) and was unjustly enriched by selling fans with a known design defect that had caused fires due to an electrical failure in the fans’ motors. The manufacturer conducted a voluntary recall with the CPSC. The recall notice advised consumers to immediately stop using the product and to contact the company to receive a free power cord adaptor that would protect against fires. The plaintiff alleged that he would not have purchased the product if he had been aware of the defect, and that the recall remedy was not adequate. The plaintiff did not allege that he availed himself of the recall remedy or that any of the products he purchased manifested a defect. The appellate court affirmed the dismissal of the putative class-action complaint.
• Defended a food-processing company involving wrongful death and significant personal injury claims that a food-thickening agent was causally related to infants’ development of necrotizing enterocolitis. The case was accepted to a U.S. District Court for the Southern District of New York “Pilot Project” for matters that could not all be consolidated in an MDL, but that presented complex issues and involved cases in various other jurisdictions.
• Obtained the dismissal with prejudice of a putative class-action lawsuit brought against a product manufacturer in the U.S. District Court for the Eastern District of Pennsylvania, in which the plaintiff alleged that portable electric products manufactured by our client following two previously conducted voluntary recalls still contained the alleged design defect that led to the recalls. In all, the potential damages alleged could have totaled over $200 million for the replacement cost of more than 10 million products.
• Represented a tobacco company in a large number of claims by individual smokers, class actions by unions against the tobacco industry, and foreign government actions filed in the U.S. against the tobacco industry; represented these entities in all phases of litigation and as part of a substantial defense group comprised of counsel for the other major tobacco manufacturers.