Food Claims and Litigation Conference 2011

Program of Events

Tuesday, February 22

5:30 pm – 7:00 pm
Welcome Reception
Sponsored by Michael, Best & Friedrich, LLP

Wednesday, February 23

7:30 am – 8:30 am
Sponsored by Bonner Kiernan Trebach & Crociata

8:30 am – 8:45 am
Opening Remarks
Steven Leslie, Manager, Claims Program, Grocery Manufacturers Association

8:45 am – 9:30 am
Recent Development in Product Liability Cases
Paul E. Benson, Esq., Michael Best & Friedrich, LLP

Michael Best & Friedrich's Paul Benson will set the stage for the conference, discussing the trends observed in product liability litigation and related legislation affecting the food industry over the past year and also providing a preview of issues that may impact the industry in the near future.

9:30 am – 10:15 am
Emerging Trends in Foodborne Illness Litigation
William D. Marler, Esq. Marler Clark, L.L.P., P.S.
Al Maxwell, Esq., Weinberg, Wheeler, Hudgins, Gunn & Dial

In this session, the top plaintiff and defense attorneys in the foodborne illness litigation arena will discuss recent trends and where related litigation is headed in the year ahead. They will provide insight into the types of actions they are focusing on and will help you prepare for and respond to new and innovative claims. Highlights of this session will include: an update on PCA peanut paste litigation; the pistachio recall; the impact of deitary supplement recalls on foodborne illness litigation; outlook for the proposed irradiation onf leafy greends; legislative updates and much more.

10:15 am – 10:30 am
Networking Refreshment Break
Sponsored by Stoel Rives LLP

10:30 am – 11:15 am
What's Behind the Recent Flood of False Advertising Claims Against Food Companies
Doug Besman, Esq., Senior Counsel-Litigation, Nestle USA

Recently, there has been a significant increase in the number of false advertising lawsuits initiated against the food and beverage industry. In this session, learn the various factors giving rise to these cases and the strategies being employed to defend against them.

11:15 am – 12:00 pm
Who Pays for the Losses Resulting from Food-Related Product Contaminations and Recalls?
Jonathan M. Cohen, Esq., Gilbert LLP
James F. Neale, Esq., McGuire Woods LLP
Stephen A. Weisbrod, Esq., Gilbert LLP

This session will focus on the financial losses that food companies can incur as a result of contaminiation incidents and related product recalls, including: litigation and liability costs relating to personal injury claims; compensation paid to customers for destroyed product; costs associated with public health campaigns, withdrawing products from the market, and destroying products; lost profits due to business interruptions and property damage; and compliance costs. Panelists will explore the usefulness and limitations of loss avoidance strategies, recall preparedness, various types of insurance policies, indemnification agreements, defense and public relations strategies, and other techniques for managing the risks of contamination-related losses. Panelists will bring to the discussion expertise from several fields, including product liability defense, insurance coverage litigation, and risk management.

12:00 am – 1:00 pm

1:00 pm – 1:45 pm
Criminal Implications in the Food Industry: How to be Prepared and How Best to Defend
Brian Dickerson, Esq., Roetzel & Andress

In this session, attendees will discuss the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.), and learn practical insights that can be used to evaluate and defend potential criminal implications that may stem from stepped up prosecution efforts by state and federal enforcement agencies. Speakers will provide examples of protocols necessary for a company to be prepared for random inspections, searches, and service of grand jury or Congressional subpoenas; model practices for internal investigations, including the recent consensus on Upjohn Warnings (the “corporate Miranda”); and discussion of how the Justice Department’s enforcement of the Foreign Corrupt Practices Act impacts the food industry.

1:45 pm – 2:30 pm
Standards and Expectations of Corporate Social Responsibility: The Retailer's Perspective
Tania King, Esq., General Counsel, Advantage Sales and Marketing
Paul La Scala, Esq.,  Shook, Hardy & Bacon, LLP

Quality, price and timeliness are no longer the only expectations retailers and distributors have of food manufacturers, as high expectations of environmental and social responsibility are also becoming the norm. Learn what retailers and distributors expect from manufacturers when it comes to corporate social responsibility in terms of legal compliance with applicable statutes, risk transfer, and other relevant standards, as well as how these expectations might evolve in the future.

2:30 pm – 2:45 pm
Networking Refreshment Break
Sponsored by Dickie, McCamey & Chilcote, P.C.

2:45 pm – 3:30 pm
E-Discovery: The Five Commandments
Hih Song Kim, Esq., Assistant General Counsel, Unilever
Ronald J. Levine, Esq., Herrick, Feinstein LLP

E-Discovery is at a crossroads. New questions constantly arise about how to effectively and fairly handle the potentially overwhelming demands and costs of e-discovery in food litigation. This session will address the panoply of legal issues companies face in devising a records retention and e-discovery collection program that mitigates risk and minimizes exposure.

3:30 pm – 4:15 pm
Peanut Corporation of America: A Case Study

Sarah Brew Esq., Nilan Johnson Lewis, P.A.

The Peanut Corporation of America Salmonella outbreak and recallwas one of the largest in U.S. history, involving almost 4,000 products and resulting in Congressional hearings and potential criminal charges. Facing an onslaught of commercial and personal injury lawsuits and a denial of insurance coverage, PCA declared bankruptcy, resulting in a court-administered settlement process for personal\ injury claims. This session discusses the history of the PCA recall and litigation, explores the supply chain management implications for the food industry, and compares the PCA recall with the more recent recalls involving eggs.

6:00 pm – 9:00 pm
Reception and Dinner
Sponsored by Roetzel & Andress

Thursday, February 24

7:30 am – 8:30 am
Breakfast Buffet
Co-sponsored by Clark Hill PLC and Gwin Steinmetz & Baird, PLLC

8:30 am–  9:15 am
Emerging Litigation Risks Resulting from the Federal Government's Pivot Toward Enforcement and Increased Rule-Making

Troy Hutchinson Esq., Stoel Rives LLP
Ken Odza, Esq., Stoel Rives LLP
Lee Smith, Esq., Stoel Rives LLP

Stoel Rives’ Ken Odza will deliver a detailed review of the dramatic changes that are underway at FDA, USDA, FTC, CDC, and EPA concerning the regulation of food. This session will address how this shifting regulatory landscape is affecting litigation (both favorably and unfavorably) for food manufacturers in areas such as consumer fraud/unfair trade practices litigation, food-borne Illness claims involving emerging pathogens such as non-O157 E. coli, and “Public Interest” impact litigation relating to BPA, etc. The session will also outline model practices and strategies to prevent, mitigate and defend against these emerging litigation threats.

9:15 am – 10:15 am
Labels Certainly Serve Some Purpose - But What Legal Effect Do They Have?
James Eiszner, Esq., Shook Hardy & Bacon, LLP
Kevin Underhill, Esq., Shook Hardy & Bacon, LLP

The speakers will review recent developments in the law with regard to consumer claims about the labeling of food and other consumer products. They will discuss topics including FDA preemption arguments, the recent increase in “greenwashing” and trans fat claims, and whether the average consumer can be expected to read the side of a food container.

10:15 am - 10:30am
Networking Refreshment Break
Sponsored by Cozen O'Connor

10:30 am – 11:15 am
Anticipated Changes in Food Packaging: Legal and Regulatory Issues Associated with Active and Intelligent Packaging
Richard Fama, Esq., Cozen O'Connor
Russell Wheeler, Esq., Cozen O'Connor

Even the most cursory glance at our food store shelves reveals that we are entering a new and exciting era in food packaging and safety. Advancements in active and intelligent packaging coupled with increasing governmental regulations present many exciting opportunities and challenges. An understanding of the regulatory landscape and legal ramifications associated with food packaging is critical to your ability to successfully take advantage of these opportunities and navigate the challenges that lie ahead. This presentation will focus on advancements in active and intelligent packaging, governmental regulations associated with food packaging and anticipated future trends.

11:15 am – 12:00 pm
California's Proposition 65: Proposed Changes Make for Low Hanging Fruit
Michele Corash, Esq., Morrison & Foerster LLP
Trent Norris, Esq., Arnold & Porter
Scott Rickman, Esq., Associate General Counsel, Del Monte Foods

Significant proposed changes to California’s Proposition 65 could mean big challenges for consumer product companies going forward. Find out what changes are being considered by California legislators and what they would mean to your company, from required warnings on products for BPA, methanol and other chemicals, to the weakening of safe harbor provisions.