1. #ACIProducts
AutomotiveProductLiabilityLitigation
Recalls:
How They are Impacting Class Actions; Litigation
Strategy to Defeat Class Claims; Recall-Based
Rule 23 Arguments; Mootness; and More
June 4 - 5, 2014
Tweeting about this conference?
S. Vance Wittie
Special Counsel
Sedgwick LLP
Dallas, Texas
Michelle I. Schaffer
Shareholder
Campbell, Campbell
Edwards & Conroy PC
Boston, Massachusetts
Barry I. Buchman
Partner
Gilbert LLP
Paul E. Wojcicki
Shareholder
Segal McCambridge
Singer & Mahoney, Ltd.
5. #ACIProducts
Post-Sale Duty to Warn
(PerThird Restatement)
•Negligence-based theory (reasonable
person)
•Seller knows or should know of
substantial risk
•Recipients of warning can be
identified and can be assumed to be
unaware of the risk
6. #ACIProducts
Post-Sale Duty to Warn
(PerThird Restatement)
•Warning can be effectively
communicated and acted upon
•Risk of harm sufficiently great to
justify burden
7. #ACIProducts
Duty to Recall or Retrofit
•Third Restatement limits application
to where governmental directive
specifically requires recall or seller
undertakes to recall product and fails
to act as reasonable person
•Negligent recall claims may be based
on design or implementation of
campaign
9. #ACIProducts
Court-Ordered Recalls
•Question of Primary Jurisdiction—
Should Court Defer to Administrative
Agency?
•Question of Preemption—
Does court action unduly interfere
with administrative policies?
10. #ACIProducts
Court-Ordered Recalls
•Question of Judicial Authority—
Does court have competence to order
relief, especially in other states?
•Question of Superiority—
Is a court-ordered injunction a
superior remedy?
18. #ACIProducts
Don’t Fear the Recall
•Finally, after years of foot dragging …
• 2014 YTD:
•GM issues nearly 30 recalls
•15.8 million vehicles involved
•More than 2013 total vehicle sales
all manufacturers
19. #ACIProducts
Don’t Fear the Recall
•Recalls “captivate the media, but the
U.S. public absolutely couldn't care
less."
- Bob Lutz, former GM CEO
23. #ACIProducts
U. S. Consumers
• Don’t expect perfection … but we do expect
• Transparency – admit your mistake
• Accountability – apologize
• Service – fix it
• Forgiving
• We want to believe in the companies we buy from
• We give second changes
25. #ACIProducts
Go on the offensive
•“… of course we conducted a recall …”
• Committed to customer safety
• You come first
• Right thing to do … and we did it
•Court of law and court of public opinion
