Product Liability Recall

Overview

Our attorneys are experienced in successfully resolving high exposure product recalls. Involving our team early can help you conserve limited resources as you work through your investigation, root cause analysis, and development of communications and corrective action plans. Our goal is first to minimize the exposure and reputational risk to the company and to reduce the potential for collateral litigation. We work to streamline the process, identify possible disputes with customers or suppliers, and avoid costly and disruptive litigation. If a recall is part of your corrective action plan, we can help in your interactions with government agencies involved in overseeing the recall, formal notification process, public relations plan, and implementation and management of the recall. We have significant experience with insurance products that provide coverage for product recalls and can address any coverage disputes and provide advice on procuring such insurance.

How We Can Help

We routinely work with our clients on:

  • Business to business recalls—disputes between businesses in the chain of distribution, including responsibility for the defect in the product, the scope and division of responsibility for the corrective action plan, responsibility for third party claims, and responsibility for the recall expenses.
  • Business to consumer recalls—through distribution and retail outlets to the consumer level, including interactions with government agencies, distributors, retailers, and consumers.

What Sets Us Apart

Recalls are complicated, multifunction engagements. Our attorneys have experience handling all of the disparate aspects of a product recall, including:

  • negotiating agreements between product manufacturers for joint root cause analysis and corrective action plans;
  • negotiating recall expense sharing agreements and settlement agreements;
  • drafting recall notices and developing communications plans; and
  • drafting and managing initial and follow-up reporting obligations to federal agencies, including the Consumer Product Safety Commission (“CPSC”), National Highway Traffic Safety Administration (“NHTSA”), and Food and Drug Administration (“FDA”).

Importantly, we have insurance coverage lawyers who will work to maximize recoveries from applicable insurance policies, including business interruption coverage, specific recall insurance coverage and other types of coverages.

Experience

Recall of an engine block heater:

  • Negotiated an investigation agreement that allowed our client and the original equipment manufacturer (“OEM”) to jointly determine the reason for failures and develop a corrective action plan;
  • Persuaded the OEM manufacturer to bear responsibility for the recall;
  • Preserved the future business relationship and supplied redesigned heaters to the OEM manufacturer for its voluntary corrective action plan; and
  • Negotiated a new supplier warranty agreement that disclaimed implied warranties and better established our client’s rights and responsibilities.

Recall of laser diodes:

  • Provided insurance coverage analysis and interacted with our client’s carriers;
  • Prepared talking points for senior company leadership and internal reports for our client’s governing board;
  • Assisted in fulfilling our client’s FDA reporting obligations; and
  • Assisted in negotiating and drafting a settlement agreement that called for sharing of recall expenses with our client’s customer and guaranteed future business. 

Recall of motorcycle helmets:

  • Advised our client on the recall;
  • Prepared and filed the initial report with the NHTSA;
  • Drafted the public notices and website alert;
  • Developed our client’s communications plan;
  • Filed follow-up reports with the NHTSA; and
  • Advised on working with our client’s foreign supplier to correct the manufacturing errors that caused the recall, and to reimburse our client for their recall expenses.

Recall of office chair:

  • Assisted in the analysis to determine whether a report to the CPSC was required;
  • Drafted and filed our client’s initial report under the CPSC’s fast-track program;
  • Prepared and filed our client’s full report;
  • Drafted the recall notices;
  • Drafted and filed the corrective action plan; and
  • Assisted in managing the recall and filing follow-up reports.

Defective linen recall:

  • Assisted our client in developing an informal market withdrawal;
  • Worked closely with our client in drafting appropriate communications to their customers about the product’s performance issues and rationale for the withdrawal; and
  • Advised our client on negotiations with the material supplier for a no-cost replacement of the inventory.