Litigation Conference
AGENDA
Tuesday, February 25
3:30 – 5:00 pm Food Safety Law Update and Roundtable Discussion
Fatemeh Ataei, Manager, Science Program Management, Grocery Manufacturers Association
Arthur Garrett, Esq., Keller and Heckman, LLP
Joseph Levitt, Esq., Hogan Lovells
Trent Taylor, Esq. McGuire Woods, LLC
This roundtable session will look at the current and future state of food safety law, including current FDA enforcement and pending proposals under the Food Safety Modernization Act. Specifically, the panel will explore FSMA’s potential to increase liability, as FSMA’s focus on prevention and safety will inevitably hold food companies to higher standards with increased demands for accountability. And as food companies comply with FSMA’s increased requirements, they could begin to see increases in recalls, FDA enforcement actions, labeling and contamination class action litigation, and increased insurance and indemnity requirements across the supply chain.
5:30– 7:00 pm Welcome Reception
Sponsored by Michael Best & Friedrich, LLP
Wednesday, February 26
7:00– 8:00 am Breakfast Buffet
Sponsored by Bonner Kiernan Trebach & Crociata, LLP
8:00 – 8:05 am Welcome and Opening Remarks
Steven Leslie, Esq., Director and Counsel, GMA Claims Program
8:05 – 8:55 am Recent Developments in Food, Beverage and
CPG Industry Product Liability Litigation
Paul Benson, Esq., Michael Best & Friedrich
Michael Best & Friedrich’s Paul Benson will set the stage for the conference by discussing the trends observed in product liability litigation and related legislation affecting the food, beverage, and CPG industry over the past year, and also providing a preview of issues that are likely to have an impact in the near future.
8:55 – 9:45 am Food Class Action Litigation Update
Angel Garganta, Esq., Arnold & Porter
Edward “Ted” Shin, Esq., Welch Foods, Inc.
This session will review recent class action litigation cases and trends in the food and beverage industry.
9:45– 10:00 am Networking Break
Sponsored by Dickie McCamey & Chilcote, PC
10:00 – 11:00 am Avoiding, Managing, and Settling Class Action Litigation
Jaclyn Bryk, Esq., The J. M. Smucker Company
Ronald Rothstein, Esq., Winston & Strawn, LLP
This presentation will feature both in-house and outside counsel perspectives on avoiding, managing and settling class action litigation in the food, beverage, and CPG industry. Specific topics will include steps manufacturers can take to avoid class action litigation, considerations for when to settle and when not to settle, and effective ways to convince senior management that class action litigation is not just a passing fad.
11:00 – 11:50 am Preventing Foodborne Illness through Vaccinations
Andrew Kimball, Esq., Dickie McCamey
Tom May, Esq., Dickie McCamey
Vaccinations and inoculations can be an effective tool for preventing foodborne illness outbreaks, however employment and labor laws create a significant hurdle to this approach. For example, Hepatitis A is the cause of numerous outbreaks every year. A simple vaccination for food service employees would greatly reduce this risk, however current labor laws prevent employers from forcing the vaccination on employees. This session will explore this and other methods for preventing foodborne illness outbreaks, and how these approaches are impacted by employment and labor laws.
12:00 – 1:00 pm Luncheon
Sponsored by Hogan Lovells
1:10 – 1:50 pm Food Companies as Plaintiffs: Litigating and Resolving
Claims Against Suppliers, Contractors, and Insurers
Stephen Weisbrod, Esq., Weisbrod, Matteis & Copley, PLLC
Douglas Besman, Esq., Nestle USA
In this presentation, an in-house attorney and outside counsel will discuss food companies’ procedures for identifying recoverable losses, steps companies can take in evaluating offensive claims and potential sources of recovery, settlement strategies and alternative dispute resolution, and methods for aligning the interests of clients and counsel through alternative fee arrangements. The presenters also will discuss a recent multi-party negotiation arising out of an international ingredient recall in which dozens of parties – including the ingredient manufacturer, distributors, food companies, retailers and insurers – were able to resolve millions of dollars in liability and insurance coverage claims without resorting to litigation.
2:00– 2:40 pm Concurrent Breakout Sessions
Breakout Session A: Prop 65 Update
Matt Kaplan, Esq., Tucker Ellis
Prop 65 saw substantial activity in 2013, including legislative reform, a trial on lead in baby food, and an appellate court decision on the requirements to prove a prima facie case of a violation. In this session, join Matt Kaplan of Tucker Ellis LLP to learn about these and other recent developments and trends that are relevant to food manufacturers and retailers.
Breakout Session B:Ten Things Your Product, Recall or
Contamination Insurer Won’t Tell You
Steve Puddell, Esq., Anderson Kill, P.C.
2:40– 3:20 pm Concurrent Breakout Sessions
Breakout Session C: Green Chemistry:
The State Regulatory Frontier
Trent Norris, Esq., Arnold & Porter, LLP
As the gears of the U.S. Congress have slowed, state legislatures have been increasingly active in regulating food and consumer products. From California to Minnesota and Washington to Maine, states have adopted "green chemistry" laws and regulations that present special challenges for consumer product manufacturers and retailers. These often overlooked requirements are both varied and increasing in complexity. This session will review the major state regimes affecting CPG companies and present strategies for current and future compliance.
Breakout Session D: Flavorings, Colors, & Other Additives:
Managing Current and Future Litigation Risks
Corey Gordon, Blackwell Burke, PA
Flavorings and other additives to foods and beverages continue to attract litigation and regulatory scrutiny. The plaintiffs’ bar is advancing new theories that certain additives are toxic or “obesogenic;” class action lawyers continue deconstructing ingredient labels in search of the next big consumer fraud claim; and consumer advocacy groups continue their campaign for more regulatory and legislative action. This session will discuss the current litigation and regulatory landscape with respect to flavorings, colors, sweeteners, and other additives, and discuss strategies to manage current and future risks.
3:20– 3:35 pm Networking Break
Sponsored by Faegre Baker Daniels, LLP
3:35– 4:20 pm Trans Fats and Beyond: Anticipating the Next Generation of
Industry Risks
Sarah Brew, Esq., Faegre Baker Daniels
The FDA’s recent decision regarding GRAS status for partially-hydrogenated oils (PHO) containing trans fats may be just the tip of the iceberg if consumer groups and plaintiff’s attorneys have their way. This presentation will discuss the litigation and regulatory implications of FDA’s PHO decision, the increasing power and tactics of CSPI and other consumer groups, and the next generation of risks to face the food industry, such as the Pew Food Additives Project, challenges to GRAS self-affirmation, nanotechnology, pesticide residues, and involvement by state attorneys general in false labeling cases.
4:20– 4:55 pm Developments in Food, Beverage and Regulatory-Based
Defenses to Litigation: Primary Jurisdiction and Related
Doctrines
Robert Hawk, Esq., Hogan Lovells
Martin Hahn, Esq. Hogan Lovells
The presentation will cover the primary jurisdiction doctrine’s brief early heyday (e.g., Ries v. Hornell Brewing Co., Inc.; Coyle v. Hornell Brewing Co.), and its subsequent broad rejection, particularly in California federal courts (e.g., Lockwood v. ConAgra Foods, Inc.). Discussion will include the implications for food claims of the doctrine’s recent invocation in non-food litigation (Astiana v. Hain Celestial Group., Inc.,), the limited boost to the doctrine in food cases arising from the Ninth Circuit’s Pom Wonderful decision, the doctrine’s recent resurgence as a counterforce to exploding FDCA and federal regulation-premised food labeling actions (e.g., Cox v. Gruma Corp.), as well as interplay with related doctrines such as implied federal law preemption, and strategic considerations for employing the doctrine going forward.
4:55– 5:30 pm Developments in Lanham Act False Advertising Food Cases
Steve Hollman, Esq. Hogan Lovells
Robert Wolinsky, Esq., Hogan Lovells
The presentation will include updates on how various types of false, competitive claims are being addressed by the courts, including: literally false claims, bald v. establishment claims, and impliedly false claims. This session will also touch on developing survey admissibility issues and Daubert challenges and tips drawn from recent cases on strategies for winning Lanham Act cases.
6:30– 7:30 pm Reception
Sponsored by Perkins Coie
7:30– 9:00 pm Conference Dinner
Sponsored by Arnold & Porter
Thursday, February 27
7:30– 8:30 am Breakfast Buffet
Sponsored by Mayer Brown
8:30 – 9:20 am Trans-National Litigation and Foreign Judgments: Adding
Spice to your National Docket
Matt Hoffman, Esq., Gibson, Dunn & Cutcher
Perlette Michèle Jura, Esq., Gibson, Dunn & Cutcher
Peter Pliszka, Esq., Fasken Martineau
Transnational litigation is on the rise in both the U.S. and Canada. In this session, a distinguished panel of leaders in cross-border litigation will identify today’s foremost litigation risks for multinational corporations, will provide an overview of key strategies for managing transnational litigation, and will discuss evolving trends in supply chain liability, foreign judgment recognition and enforcement and judicial efforts to expand jurisdictional reaches over multinational corporations.
9:20 – 10:10 am What Companies and Their Lawyers Need To
Know About Insurance
Jonathan Cohen, Esq., Gilbert LLP
Danielle White, Esq., The Dannon Company
Joel Fineberg, Esq., Class Action Insurance Consultants
Food, beverage, and CPG manufacturers exist in an increasingly risky business and legal environment. Recently, the industry has faced significant product recalls and mass-tort claims resulting from accidental contamination of their products. An ever-expanding list of companies have been sued for alleged shortcomings in their products labels, while also facing new and growing challenges in managing critical supply chains. This presentation discusses the basics of how insurance protects against the risks particular to the industry, and provides an in-depth discussion of some of the key current issues that companies face (including labeling claims, supply chain litigation, and FSMA-related issues).
10:10– 10:30 am Networking Break
Sponsored by Class Action Insurance Consultants
10:30– 11:15 am Frivolous Litigation? Strategies for when Your Company is
“Not Going to Take it Anymore”
Ron Levine, Esq. Herrick Feinstein, LLP
Mark Rapazzini, Esq., Heffler Claims Group
In-house and outside counsel often deal with frivolous litigation, unethical conduct of adversaries, and abuses of the system. To paraphrase Howard Beale from the 1976 film Network, this presentation will explore what options food and beverage companies have when they’re “mad as [heck], and not going to take it anymore,” including specific defense strategies to protect the company’s or client’s brand.
11:15 – 12:00: Update on GMOs: Legislation and Litigation
Karin Moore, Esq., VP of Legal Affairs and General Counsel, GMA
Carmine Zarlenga, Esq., Mayer Brown
Afternoon Open for leisure activities or departures