The Legal 500

This section examines leading firms for handling product liability litigation in relation to consumer products - including particularly food and beverages, household appliances and electronics, tobacco, guns and toys. Toxic tort defense is discussed in the Environment section found elsewhere in this Litigation chapter. The most highly ranked practices demonstrate depth and breadth of experience, as well as the ability to manage complex multi-district litigation (MDL) and try leading cases in court.

Jones Day

PRACTICE: Clients select Jones Day for the ‘responsiveness, depth of practice and flexibility’ of its 68-strong battery of product liability & tort litigation attorneys. Guns, tobacco and lead content in toys are just some of the issues which this ‘exceptional’ practice has dealt with in recent times. Its breadth of blue-chip representation across numerous industry sectors - and on some of the biggest matters - places the practice squarely at the forefront of consumer product liability litigation.

Appellate, IP, corporate and transactional, labor and employment practices provide an enticing range of support options for clients. The practice’s attorneys possess ‘extraordinary talent’, are located across offices in major US cities providing good geographic coverage and clients highlight teamwork, ‘leadership’ and ‘strategic thinking combined with an attention to detail’ as being among the key factors in engaging these lawyers. In addition to tobacco, toys and firearms, the group is equally comfortable as national coordinating counsel or lead trial counsel on litigation as diverse as household appliances, industrial equipment and coffee and is prominent in the aviation and life sciences sectors. Clients praise its ‘trial experience and willingness to cooperate with other firms’ - this is a group that is ‘very thorough and dedicated’, ‘bends over backwards to assist us’ and ‘always works on efficiencies’.

Recent significant victories include at the US Court of Appeals for the Second Circuit where, in April 2008, Jones Day succeeded in overturning certification of a no-injury consumer fraud RICO class action on behalf of anyone who had ever purchased light cigarettes. This incredible class action had more than 50m claimants demanding $800bn in losses and damages, threatening the entire tobacco industry. The practice represented RJ Reynolds and Brown & Williamson and took the lead on arguing the appeal on behalf of co-defendants. The win was widely perceived to have clarified the rules for fraud actions under RICO and to have set precedent that strengthens corporate defense. In May 2008, the practice represented RJ Reynolds in the Oregon Supreme Court which dismissed a putative class action that had sought medical monitoring costs based on increased risk of disease associated with smoking. The court ruled that increased risk did not constitute an injury and was insufficient to make a monitoring claim.

Jones Day lawyers continue to represent Mattel as one of several defendants in litigation following the recall of Chinese-manufactured children’s toys found to contain excessive levels of lead. 22 separate cases have been consolidated for trial in the Central District of California.

CLIENTS: Other clients include Colt, Tsann Kuen Enterprise, Sears Roebuck and Sherwin-Williams.

INDIVIDUALS: Robert Walker in Cleveland is ‘an individual who can handle cases in far less time than you would think possible’, according to clients, being ‘a great strategist’. Clients say Thomas Fennell in Dallas is ‘extremely organized’, ‘a strong mentor’ and ‘one of the leading defense lawyers in complex litigation’. Fellow Dallas partner Michael Rice is dubbed the ‘Most Valuable Player’ on the team by clients - he ‘gives of himself tirelessly and selflessly’. Clients regard Pittsburgh-based practice leader Paul Pohl as an ‘exceptional’ lawyer, whose ‘legal analysis and writing skills are very impressive’. ‘Very perceptive’ Mark Herrmann in Chicago is ‘remarkably effective’ across industry sectors, say clients - ‘he writes extraordinarily well and he is a good strategist’. Stephanie Parker in Atlanta is also recommended.

Morrison & Foerster

PRACTICE: Used generally for defense of California or national class actions - and consistently rated as ‘excellent’ or ‘very high quality’ by clients - Morrison & Foerster’s product liability practice is now well established in consumer products litigation. Its presence is most notable in the electronics space where the firm leverages its California roots in serving the giants of Silicon Valley. The firm also fields leading attorneys in the aviation product liability space and offers a full range of related disciplines typical of large international law firms. Clients say it is a practice that exhibits ‘great understanding of clients’ values, culture and product mix’ and has the ‘expertise to handle the most sophisticated cases’.

Two international partners - in Tokyo and Shanghai - provide a useful window into the Asian market in support of the US-based practice. The group strengthened its partner numbers by promoting San Francisco-based Erin Bosman in 2008. Clients praise the attorneys for ‘competence and responsiveness’ and their ability to be ‘always on top of the case’, but regard the practice’s billing rates as expensive. Even clients who consider it cost-effective wish that the group could ‘charge less’, ‘pay closer attention to cost control’ or ‘be more creative’ in finding alternative billing methods. Therefore, while the group is ‘first choice for a significant case’, other firms may offer clients more economical resolution of moderate litigation.

During 2008, the practice acted as lead counsel to Palm in consolidated litigation in the Northern District of California regarding the Palm Treo 600 and 650 smartphone. The cases were settled in September 2008. The practice continues to act for Mattel and Fisher-Price in California in relation to recalled Chinese-manufactured toys containing lead. The case has been brought jointly by the state attorney general and Los Angeles City attorney and is expected to reach trial in 2009.

CLIENTS: The practice also represents clients including Apple, Coca-Cola and Toshiba.

INDIVIDUALS: James Huston in San Diego is ‘highly experienced, responsive and creative’. Clients name San Francisco-based Robert Falk as ‘one of the most experienced Proposition 65 lawyers in California’ and deem him ‘smart, sharp and analytical’. In the same office, Penelope Preovolos is ‘an extremely capable, smart and gifted lawyer’ who repeatedly earns praise from clients. David McDowell in Los Angeles and William Stern in San Francisco are ‘excellent attorneys’ who co-chair the consumer litigation and class action practice group.

Chadbourne & Parke LLP

PRACTICE: ‘You know you are going to get an aggressive defense,’ according to clients of Chadbourne & Parke LLP’s products liability counseling and defense practice. The attorneys have ‘technical expertise’ and ‘their intellectual horse power is excellent’. According to clients, the practice offers ‘top-notch’ and ‘world-class representation,’ and ‘if you want serious representation in New York, you’d put Chadbourne & Parke LLP top of the list’. 34 US attorneys - in New York and Los Angeles - and eight more internationally, plus two full-time scientific consultants, staff a good-sized practice and one that represents numerous industries - its primary representations involve tobacco and alcohol, but it has some engagements with cosmetics and consumer electronics clients. The practice will miss Thomas Bezanson - ‘a true gentleman’ and ‘an extraordinarily talented trial lawyer’ - who recently retired from the partnership after 34 years.

Clients speak of the practice as being generally ‘outstanding’, ‘excellent’ or ‘terrific in the product liability space’, providing ‘breadth of experience’ and ‘excellent client service’ and ‘long-term strategic thinking’. It is a practice that is universally respected and one with substantial depth.

Recent representations include Jim Beam Brands in relation to litigation concerning alleged advertising of alcoholic beverages to underage drinkers. Five putative class actions were dismissed in 2007, decisions upheld on appeal. The practice represents Avon Products as product liability and toxic tort counsel and, in the former capacity, obtained summary judgement dismissal of a case pending in the New York Supreme Court. ‘World-class in tobacco litigation,’ the practice is appealing against the decision in the Eastern District of New York to certify nationwide class action in the Lights cigarettes consumer fraud litigation. Chadbourne & Parke LLP lawyers are representing British American Tobacco, the same client for which the practice successfully obtained dismissal from a consolidated action in West Virginia - a case which remains active against other defendants.

CLIENTS: Other representations include Brown & Williamson, Fortune Brands, Gallaher and Samsung Electronics.

INDIVIDUALS: All of the recommended lawyers are based in New York. Clients admire ‘wonderful’ Donald Strauber - ‘his signal quality is the maturity of his judgement’ and he has a record of ‘outstanding success on product liability matters brought to verdict’. He forged his reputation winning Jim Beam’s cases in fetal alcohol syndrome (FAS) litigation, and he is considered the alcohol industry’s go-to figure for liability defense. Thomas Riley, Bruce Sheffler and Phoebe Wilkinson are highly rated by clients, who say that each produces ‘great product liability work’ and ‘great strategic analysis’. Wilkinson is ‘a deeply committed lawyer’. Mary Yelenick is ‘very responsive’ and clients say her work is ‘very high quality’. David Wallace is also recommended.

Dechert LLP

PRACTICE: Dechert LLP’s mass torts and product liability practice is a major force in life sciences product liability and handles significant engagements in the consumer products arena, with tobacco litigation and electronics its key areas of focus. It is a large practice that clients say produces ‘excellent work’ and boasts ‘substantive knowledge’. The practice fields 130 US-based lawyers but only 27 are partners, numbers that mean the practice is deep in senior talent at the same time as it is perhaps overweight with associates, a concern expressed by some clients. Furthermore, with a number of partners devoted primarily to life sciences cases, this necessarily places some limits on the representation available for clients from other industry sectors where
the caseload is less substantial. Nonetheless it is a pool of ‘very responsive’ lawyers that can
staff up sizeable teams on several important national or regional counsel roles at any given time. Most of the partners operate out of
Philadelphia and Princeton.

Historically, the practice has won significant victories in lead paint and tobacco litigation. Currently, Dechert LLP provides lawyers that form part of the national counsel defense team for Philip Morris USA (and its parent company, Altria Group) in Lights class actions - it is primary counsel in several states throughout the
South and Midwest, including Florida, Missouri, Ohio and West Virginia. As part of the same litigation, in November 2007 the practice defeated class certification in the New Jersey Superior Court. The practice also supplies local counsel for the same client in regard to individual personal injury cases in West Virginia where it succeeded in dismissing more than 600 claims. Other ongoing representations include the defense of consumer fraud litigation against Sunoco in relation to the sale of bottled gasoline.

CLIENTS: Other clients include Sam’s Club, Time Warner Cable and Wal-Mart.

INDIVIDUALS: Princeton partner Ezra Rosenberg exhibits ‘substantive knowledge’ and his ‘counsel is very effective’, according to clients. Stephen McConnell in Philadelphia is also recommended, as is the ‘very smart’ H Joseph Escher in San Francisco.

Goodwin Procter LLP

PRACTICE: The 43 attorneys in the products liability and mass torts practice ‘excel at handling complicated legal and factual issues’, according to clients, and ‘write clear and persuasive briefs’. It is a partner-predominant group - almost two partners to every associate - that ensures senior level advice for clients. Known particularly for product counseling and risk management, the practice also undertakes significant national coordinating and trial counsel engagements across several consumer product categories albeit primarily tobacco and foodstuffs.

It is a generally ‘excellent’ group that clients say ‘delivers high quality work’ and ‘produces excellent results’. While some feel that the practice ‘is expensive’, others note that ‘if a case needs to be settled, they always seem to be able to do so for a reasonable sum’. For bet-the-company litigation this practice is arguably as good as any, but across a smaller spread of industries than the top-tier contenders.

Clients appreciate the depth of the practice, which ‘has a whole host of impressive attorneys’, but its geographical capacity is limited to the East Coast, mainly Boston and Washington DC. The practice draws on the wider litigation department for a West Coast presence.

Kenneth Parsigian leads a team that manages and tries the major Lights cigarette litigation for Philip Morris USA, acting as lead counsel and advising on the steering committee. In December 2008, the court in Altria Group et al v Good et al cleared consumers to sue Philip Morris on the grounds of deceptive marketing of Lights cigarettes. The practice also represents the tobacco industry as lead counsel in defense of smoking liability claims brought by more than 50 hospitals in St Louis, healthcare recovery cost cases that are scheduled for trial in 2010, and which have potential to spawn more litigation.

In 2007, Goodwin Procter LLP won a huge defense verdict for Del Monte in a Proposition 65 case brought by the California Attorney General and a private plaintiff alleging that the canned tuna industry had failed to provide warnings about mercury content. The practice continues to represent the client in the appeals process and is acting for McDonald’s with regard to another Proposition 65 claim.

CLIENTS: Clients include McDonald’s and Philip Morris USA.

INDIVIDUALS: Kenneth Parsigian in Boston is the practice leader and clients describe him as ‘one of the best brief-writers I’ve ever seen’, ‘extremely efficient’ and ‘the consummate, complete package irrespective of the matter at hand - he has it all’. Joanne Gray in New York is ‘very thorough’ and has ‘excellent trial skills’.

Clients also recommend ‘particularly impressive’ William Hanlon in Washington DC and the ‘excellent service’ of Glenn Kerner in New York. Shepard Remis in Boston chairs the alternative dispute resolution practice group and clients regard him as ‘extremely experienced, very smart, pragmatic’ and ‘a terrific manager’.

Not listed as a member of the practice, but frequently drawn into cases, the ‘impressive’ Forrest Hainline is a commercial litigator whose Proposition 65 work brings his skills into play in a product liability context. Hugely well respected, he divides time between Los Angeles and San Francisco offices. Clients ‘recommend him for any type of complex litigation’, describing him as ‘very persuasive’, and ‘perhaps the most talented trial lawyer I have ever met’.

Kirkland & Ellis LLP

PRACTICE: Kirkland & Ellis LLP is a law firm that stresses flexibility and, as such, the product liability and class action, mass tort and toxic tort practice groups reside within a litigation department that can pool the resources of more than 150 attorneys. Around half of that number have regular involvement in the space, and most of the lawyers involved in consumer product litigation operate out of the Chicago head office. The practice takes roles as national coordinating counsel or lead trial counsel, eschewing smaller cases. For these reasons, Kirkland & Ellis LLP has an eclectic mix of cases across a wide selection of industries - including consumer electronics, paints and tobacco - but overall has a less extensive track record in the sector than the top-tier firms. Clients say its attorneys ‘are excellent - we’re extremely happy with them’ or that ‘they do a fabulous job’. David Bernick is the practice’s central figure, a frontline trial lawyer of undoubted prowess but an individual who divides opinion with his aggressive stance. There is strong support but not to the depth present in the top-tier practices.

The practice’s recent cases include defending RJ Reynolds and the tobacco industry against product liability lawsuits brought across 36 states, using the industry-wide Master Settlement Agreement to argue that cases should be mediated rather than tried. In November 2007, Kirkland & Ellis LLP helped to win a unanimous defense verdict for NL Industries in Milwaukee County Circuit Court against allegations of permanent brain damage brought on by exposure to lead paints. The verdict helped establish precedent in terms of burden of proof.

Other notable representations include acting for Apple and Motorola in relation to MDL cases alleging iPod music-players and Bluetooth headsets cause loss of hearing. In February 2009, Motorola entered a sub-$1m settlement with plaintiffs over the Bluetooth technology. In June 2008, in defense of litigation against Apple a judge in the Northern District of California granted the practice’s motion to dismiss iPod hearing loss claims. The cases are on appeal before the Ninth Circuit.

CLIENTS: Clients include RJ Reynolds and its subsidiary Brown & Williamson, and Motorola.

INDIVIDUALS: David Bernick divides his time between Chicago and New York, and spreads his practice across a range of litigation matters including product liability. Clients call him ‘extremely smart’ and ‘a phenomenal lawyer’, but also suggest a somewhat fractious character - ‘too aggressive’ - best used in cases where the client has no intention of reaching compromise.

Also recommended are ‘very tough’ Stephen Patton in Chicago and Michael Jones in Washington DC.

Latham & Watkins LLP

PRACTICE: A core group of 40 attorneys that clients regard as ‘excellent’ and ‘exceptional’ handles an eclectic mix of product liability matters in a range of capacities that includes national coordinating and lead trial counsel, as well as regional roles and risk assessment. This ‘top-notch’ practice is rounded out with product safety and recall expertise and provides clients with everything from preventive advice to appellate representation. Its attorneys are spread neatly among the firm’s coast-spanning network of offices while its international reach is an additional benefit. These attorneys are ‘responsive’ and ‘communicate exceptionally well’, while clients report that ‘everything is done in timely fashion and done very well’.

Latham & Watkins LLP’s caseload in 2008 included the representation of Aurora Organic Dairy and five of the dairy’s supermarket clients in defense of putative nationwide class actions and individual cases filed in numerous federal and state courts. The practice moved successfully to consolidate the cases as an MDL in the United States District Court for the Eastern District of Missouri, a ruling that will make the litigation more manageable. In an interesting offshoot of tobacco litigation, the practice represents Swisher International and Swisher Match in defense of a Florida action alleging that smokeless tobacco causes oral cancer. Attorneys also represent Playtex Products in more than 20 class actions that have been consolidated in the United States District Court for the Western District of Missouri and which allege the violation of state laws and misrepresentations in the advertising and sale of infant drink containers - including baby bottles. The polycarbonate plastic products in question are made with the chemical bisphenol-A, over which safety concerns have arisen.

In a demonstration of its product safety expertise and global reach, the practice helped Reebok International to enact a 45-country recall of 500,000 promotional charm bracelets that contained lead.

CLIENTS: Other representations include General Electric, Kids II, Motorola and Toshiba.

INDIVIDUALS: Peter Winik in Washington DC serves as global practice co-chair and clients consider him to be ‘quite impressive’, ‘practical’ and ‘an excellent strategist’. Ernest Getto divides his time between Los Angeles and San Francisco and is well regarded. According to clients, James Kearney in New York is ‘the perfect combination... smart on legal issues and not fearful of trials - a great strategist’.

Arnold & Porter LLP

PRACTICE: Arnold & Porter LLP’s product liability and mass tort litigation practice continues to represent longstanding clients in tobacco and lead paint litigation, and is developing something of a reputation in defense of food manufacturers and restaurants, particularly those hit by California Proposition 65 claims. The practice also has a significant track record in life sciences litigation.

More than 100 of the firm’s litigators spend a portion of their time working in product liability matters, a large group that clients ‘are pleased with’ and describe as ‘excellent and dedicated’. The product liability practice primarily operates out of Washington DC, but also has sizeable teams in Los Angeles and New York. Several hundred colleagues from the wider litigation department can augment the practice as the need dictates. Its scale allows it to staff cases that many other practices simply lack the capacity to manage. However, early in 2008 the departure of Murray Garnick to an in-house counsel role at Altria weakened the overall depth of bench by stripping out one of its strongest figures.

Additionally, the firm’s appellate and consumer product safety practice groups provide valuable skills to serve clients throughout the litigation process. In particular, risk avoidance and product recall may be judged among the main strengths of this group.

Among recent highlights, in 2008 lawyers from the practice appeared before Los Angeles Superior Court in defense of a Proposition 65 lawsuit against six restaurant clients - including McDonald’s and Chick-fil-A - in relation to failure-to-warn claims about the presence of the carcinogen PhIP in food. The chemical is a by-product of cooking meat. A tentative court ruling has determined that the case is subject to federal preemption. In another Proposition 65 lawsuit, People v Frito-Lay et al, the practice represented the largest US snack-food manufacturer in failure-to-warn claims about the presence of potentially harmful acrylamide in potato chips, cookies and other snacks. The case was settled on the eve of trial. In People v Mattel Inc et al, the practice is representing two toy manufacturers in defense of the lawsuit brought by the state attorney general about failure-to-warn over the presence of lead in certain toys.

Arnold & Porter LLP’s basket of tobacco cases for Philip Morris USA spent most of 2008 on stay, pending a decision in Altria Group v Good. However, the practice was part of the defense team that won an appeal in the Second Circuit that decertified a RICO class action in McLaughlin v American Tobacco Co (also known as Schwab). In lead pigment cases, Arnold & Porter LLP has successfully defended Atlantic Ritchfield in more than 60 motions or trials. Meanwhile, the practice helped two manufacturers with global recalls in 2007 and 2008.

CLIENTS: Other clients include Hasbro, Kraft Food and Motorola.

INDIVIDUALS: Clients have good regard for the practice co-chairs, Philip Curtis in New York and Eric Rubel in Washington DC. Rubel is a former general counsel of the Consumer Product Safety Commission (CSPC).

Sidley Austin LLP

PRACTICE: Sidley Austin LLP’s product liability practice is prominent in life sciences representation and aviation. Meanwhile, as counsel to the American Medical Association, the practice never sought involvement in tobacco litigation. As a consequence of these factors, the group’s imprint on the consumer product space is fairly limited - primarily relating to its representation of several well-known restaurants. It is therefore a practice with talent - ‘first-rate’, ‘among the best in the US’ according to clients - but a somewhat limited track record. But a practice that twins ‘quality and value’, displaying ‘the highest of talent and professionalism’ while being ‘cost-efficient and excellent’, is one that is slowly expanding its influence in the sector and clearly has the capability to become a greater force.

71 US attorneys staff the product liability practice, which has good-sized teams in Chicago, Los Angeles and Washington DC, but the majority of the lawyers devote most of their time to life sciences leaving a relatively small unit to provide high-end counsel to other industries.

The practice continues to represent for Taco Bell, the restaurant chain, and parent company, YUM! Brands, as national counsel in relation to claims arising from food poisoning caused by an outbreak of E.coli at Taco Bell outlets in the Northeastern US in late 2006. Elsewhere, Tyson Foods engaged the practice to represent it in putative class actions alleging consumer fraud in relation to marketing claims that certain poultry products were ‘raised without antibiotics’, a statement approved and then withdrawn by the US Department of Agriculture. In October 2008, the practice was able to reach a settlement with plaintiffs over injury and economic loss claims connected to the recall in 2007 of pet food products manufactured by Hill’s Pet Nutrition (a division of Colgate-Palmolive).

CLIENTS: The practice’s client roster includes Hill’s Pet Nutrition, Orkin, Taco Bell, Tyson Foods and YUM! Brands.

INDIVIDUALS: With many of the practice’s partners focusing on life sciences, it is the ‘outstanding’ practice chair, Michael Davis in Chicago, who carries the baton in consumer products litigation. Clients call him a ‘go-to guy’, an ‘extremely brilliant and a very accomplished attorney’, and say he is ‘able to use his litigation experience to act as a counselor in a very impressive way’.

Simpson Thacher &
Bartlett LLP

PRACTICE: Simpson Thacher & Bartlett LLP’s New York-based product liability and mass tort practice ‘demonstrates a grasp on the issues and a strategic vision that far surpasses the competition’ in the words of one grateful client. This is a relatively small practice - based around a core of just a dozen partners - but it is one that attracts consistently high praise from clients, who generally describe the group in superlatives: ‘excellent’, ‘very strong’, ‘quick and efficient’. The practice’s size necessitates the picking and choosing of its representations, so that it seeks out the kind of top-end, high-exposure litigation that best fits its big-bucks billing. A substantial portion of the practice’s time is devoted to risk management matters, advising clients on how to avoid or minimize litigation.

In addition to reporting the pure talent in the practice, clients also happily note that the attorneys are ‘always available if you need to discuss issues’ and adept at ‘managing expectations and keeping us appropriately apprised’.

In terms of past and current representations, this practice is probably best known for its work on behalf of the alcohol industry. Its lack of regular representation across a broader selection of industry sectors gives it a relatively narrow focus by comparison with competitor practices.

In 2007, Simpson Thacher & Bartlett LLP dismissed six putative class actions brought against Heineken in relation to the alleged unlawful advertising of alcoholic drinks. The practice continued to represent the client into 2008 during a Federal Trade Commission (FTC) investigation into the same allegations. Ongoing activities include counseling AIG and St Paul Travelers in relation to liability claims concerning lead paint and toys containing lead.

CLIENTS: The practice also acts for Argenbright Securities, Intel and Vivendi Universal.

INDIVIDUALS: David Ichel is widely appreciated: clients say he displays ‘superb client relation skills’, ‘clear strategic thinking’ and ‘very strong expertise in the field’. Clients also appreciate ‘very focused’ Mary Elizabeth McGarry who is ‘extremely intelligent and hardworking’. Joseph Wayland is admired, being a lawyer possessed of a ‘combination of intellect and discernment of the human condition that gives him strategic insight that is missing from most litigators’. Litigation department head Barry Ostrager is recommended for his trial skills. All of the partners mentioned here are based in New York.

Skadden, Arps, Slate,
Meagher & Flom LLP

PRACTICE: Representing clients in product liability matters through its related class action litigation practice and complex mass torts and insurance litigation practice - many attorneys are members of both groups, with a large number of lawyers centered around relatively few partners. These sister practices are renowned for strategic counseling and risk management and specialist e-discovery expertise form part of the overall package of services.

In addition to more tangible consumer product categories, such as alcohol and consumer electronics, the firm has developed something of a niche in financial products class action work - expertise it can leverage in serving the Boston financial community through its partners based in that city. Skadden, Arps, Slate, Meagher & Flom LLP also undertakes work for a number of pharmaceutical and medical devices manufacturers. Efforts to conclude matters through dismissal or settlement prior to trial means that the practice is generally regarded as having less of an in-trial capability than some others, and so may not be an appropriate fit for all clients.

This is a practice that clients describe as ‘excellent’ and ‘innovative’, but which is relatively shallow at senior level - just ten partners leading a large number of associates. Clients say the practice is ‘expensive, but you get what you pay for’.

In 2008, lawyers from the practice represented Anheuser-Busch in relation to civil investigations by state attorneys general and the Center for Science in the Public Interest (CSPI) concerning plans to launch a range of caffeinated alcoholic beverages. The CSPI threatened to bring a lawsuit under consumer protection laws if the drinks were launched. The practice advised and mediated in the matter, which resulted in the client agreeing not to brew the beverages in exchange for which the CSPI dropped its threats and state attorneys general praised the move.

The practice is lead counsel to Sprint Nextel in federal MDL concerning alleged risk of personal injury during the use of the client’s range of cellphones. Only one case remains pending in Eastern District of Pennsylvania, after the remainder was dismissed.

In December 2007, the practice successfully persuaded a judge to decline to certify a consumer fraud class action brought before the Illinois Supreme Court. The case had revolved around the allegedly deceptive marketing of client Intel’s Pentium 4 computer microprocessors. The lawsuit alleged breaches of California and Illinois law, but conflicts between the two state’s laws persuaded the judge that there was no commonality of case to justify class action designation.

CLIENTS: Other clients include Compaq (a subsidiary of Hewlett Packard), Guardian Life Insurance and State Farm Life Insurance.

INDIVIDUALS: Clients perceive Edward Crane in Chicago to be ‘a quick study’ who can cut to the heart of a matter. J Russell Jackson in New York is ‘extremely bright’, say clients, and ‘a phenomenal writer’. Sheila Birnbaum in New York is best known for enacting successful settlement strategies - she has ‘a great sense of legal issues and strategy’, clients say.

Wheeler Trigg O'Donnell LLP

PRACTICE: ‘Providing superb services at very reasonable rates,’ Denver-based Wheeler Trigg O'Donnell LLP is a dream for clients. Sticking steadfastly to its one-office principle, the firm sends ‘top-notch’ lawyers from its product liability practice wherever they need to go, while retaining Midwestern billing rates that make it ‘very good value’.

Founded in 1998 as a civil litigation boutique, over recent years Wheeler Trigg O'Donnell LLP has increased its size and services and now also provides labor and employment, trademark and corporate advice. The product liability practice remains of moderate size, and perhaps lacks the scale to coordinate the largest MDL, but it is packed with ‘exceptional’ attorneys who can handle regional strategy roles or nationwide litigation on certain matters and can take the lead in top-end trials. Malcolm Wheeler and John Trigg are industry-leading names, and the practice displays depth of roster with numerous senior partners. Clients judge that ‘they have experience, which is particularly helpful in getting advice on preventive action’ and are ‘well-credentialed and skilled at their craft’.

Wheeler Trigg O'Donnell LLP lawyers act as national counsel for Whirlpool in relation to liability issues arising from certain of its products including open-back revolving-drum dryers and refrigerators. In November 2008, the practice defeated attempts to certify a multi-state class action in the Western District of Arkansas over allegations that certain Whirlpool refrigerators are defective. In another victory in 2008, Mark Clouatre led a team in defense of motorcycle parts manufacturer Thiessen Products against claims that defective products were sold to the plaintiff. The District of Colorado court threw out the plaintiff’s claim and granted Thiessen a $1m counterclaim for non-payment of the parts.

Lawyers from the practice also represent Crocs as national trial counsel in product liability litigation.

CLIENTS: The client roster includes Anheuser-Busch, AT&T, AT&T Wireless, PepsiCo, Crown Equipment, McDonald’s, Qwest Communications and Wal-Mart.

INDIVIDUALS: ‘Thoughtful and creative,’ Malcolm Wheeler is ‘an excellent trial lawyer’ who ‘does very good work in appellate cases’, say clients. He provides ‘highly sophisticated and creative counseling’, and many deem him ‘the best product liability lawyer in America’ or ‘the finest lawyer with whom I have had the privilege of working’. Fellow name partner John Trigg is similarly valued as ‘a very skilled and seasoned trial lawyer’. Wheeler and Trigg are both ‘really smart lawyers and great strategists’. ‘Exceptional’ Michael Williams is ‘always available’ and ‘has the ability to communicate with business leaders in a meaningful way’. Michael O’Donnell is ‘a very competent lawyer’ who not only ‘knows how to prepare a case’, but who also ‘has very effective settlement skills’. ‘Amazing’ Julie Walker is also recommended. All partners are based in Denver.

Wildman, Harrold,
Allen & Dixon

PRACTICE: ‘Tremendous value,’ Chicago-based Wildman, Harrold, Allen & Dixon places much of its focus on product liability, a practice area that includes one-quarter of the firm’s attorneys and consequently boasts ‘great depth of expertise’. Clients also say the product liability lawyers bring ‘a practical approach to litigation’, while the relationship partners ‘consistently staff matters appropriately’. In addition to this specialization, the firm can offer to clients ancillary services such as wider commercial litigation capabilities, IP and business transaction support, making it a strong choice for product lifecycle management. The practice is widely admired and ‘does a fine job’ for clients, defying its relatively small size by its involvement with a range of engagements on high-exposure cases and litigation.

Representations in 2008 include leading the joint defense of the firearms industry, and Sturm Ruger in particular, against government lawsuits demanding reparation for personal injuries and medical fees associated with firearms incidents. All but three cases have been dismissed, with the others on appeal before the Supreme Court. The practice has filed motions to dismiss the remaining cases based on the Protection of Lawful Commerce in Arms Act, which prohibits lawsuits based on criminal misuse of firearms.

The practice also successfully defended Motorola against a class action claiming consumer fraud due to alleged defects in the company’s RAZR mobile phone. Lawyers from the practice are also defending the same client against demands for nationwide class certification of consumer fraud and breach of warranty claims concerning alleged defects in numerous types of Motorola mobile phones. The court is expected to reach a decision in 2009 - at stake are up to 100m potential claims.

CLIENTS: The practice represents other clients including Alberto Culver, the Beer Institute, Pella and Schneider Electric.

INDIVIDUALS: Anne Kimball and Sarah Olson are ‘very sophisticated lawyers’, according to clients, who highlight their ‘diplomatic ability to be patient’ and ‘good sense of what will be effective’. Clients say Mark Miller is ‘an incredibly gifted litigator’ who ‘has a strong ability to come up to speed quickly on matters’. Clients also recommend James Dorr and David Kanter. All of these lawyers are based in Chicago.

Shook, Hardy & Bacon LLP

PRACTICE: Shook, Hardy & Bacon LLP has ‘the infrastructure to respond quickly and effectively’, its product liability practice being well stocked with more than 100 efficient and capable attorneys serving a number of major clients. However, many of these lawyers are devoted to pharmaceutical and medical device litigation leaving a relatively small number to handle consumer products. Best known for its work in life sciences, automotive and tobacco product liability, the practice lacks consistent breadth of representations in other consumer product sectors. In terms of tobacco engagements, the practice serves generally as regional or international counsel. It is a practice that brings competence, depth of talent and reasonable rates - ‘outstanding trial lawyers’ and ‘excellent case work-up at a cost-efficient level,’ according to clients - but it lacks a record of cases of bet-the-company or bet-the-industry proportions.

In 2008, Shook, Hardy & Bacon LLP lawyers won a verdict for Lorillard against a Texas man who lodged a $10m lawsuit claiming that he developed mesothelioma from smoking the Kent brand of cigarette. In April 2008, the practice obtained victory in the Missouri Supreme Court to block certification of a statewide class action alleging misrepresentation of information about artificial sweeteners contained in Diet Coke. This victory reduces the likelihood of similar actions elsewhere.

CLIENTS: In addition to Coca-Cola, Philip Morris and Lorillard, the practice also represents Tyco Fire Products plus a pet food manufacturer and a furniture company.

INDIVIDUALS: Frank Kelly in San Francisco is highly regarded, clients saying he is ‘a top-flight trial lawyer’ with ‘excellent judgement and temperament’. Gary Long in Kansas City is also recommended.

Squire, Sanders &
Dempsey L.L.P.

PRACTICE: Squire, Sanders & Dempsey L.L.P.’s product liability practice centers around nine partners spread around the firm’s Ohio and Florida offices, as well as New York. This is one of the smallest practices and the group’s ability to compete is in part constrained by this modest headcount. While clients consider the partners to be ‘willing to assist with matters big and small’ and bring ‘a high level of expertise’, it is a modest-sized group that is as often engaged in regional counsel roles as it is in coordination of nationwide litigation and MDL.

Engagements during 2008 included the dismissal of a putative class action from federal court in Florida where plaintiffs alleged that Squire, Sanders & Dempsey L.L.P.’s client, Whirlpool, had sold defective refrigerators. The practice also represents Electrolux in relation to a series of cases alleging that heating elements in its Frigidaire dishwashers cause house fires. It is defending the same client against a putative nationwide class action brought in the Northern District of Georgia relating to economic loss-style allegations that a range of front-loading washing machines accumulates mold.

Squire, Sanders & Dempsey L.L.P. acted as liaison counsel to four national retailers - PetCo, PetSmart, Target and Wal-Mart - in MDL concerning the sale of allegedly contaminated pet foods that were recalled. The clients settled the case with plaintiffs in New Jersey and Canada.

CLIENTS: Other clients include Chubb Canada and Whirlpool.

INDIVIDUALS: Alvin Davis in Miami is the practice’s key figure for consumer products. Clients say his ‘work is first-rate’ and he ‘brings credibility to the table’. Better known for her pharmaceutical cases, Patricia Lowry in West Palm Beach does some consumer products work and is also well respected. Mark Goodman in San Francisco is also recommended.

Winston & Strawn LLP

PRACTICE: ‘They get called on by the best companies for bet-the-company cases,’ so say clients of Winston & Strawn LLP. More than 50 of the firm’s attorneys are involved regularly in product liability matters. Renowned for its top-notch trial talent - clients rate it as ‘one of our major litigation firms’, a group that is ‘absolutely superb at preparing and trying cases’ - the practice also has the capability to handle discovery and pre-trial motions as well as appeals. Fronted by ‘a cadre of experienced, senior partners’ accustomed to first-chair roles, the group is typically used for strategic oversight or as lead trial counsel.

However, with major life sciences litigation having taken up much of the group’s time in recent years, its spread of experience in the wider consumer product arena is narrower and less regular than for many of the higher-ranked practices. Overall, this is a pricey practice to bring in to head up the biggest cases. Other practices may be more suitable and cost-effective for litigation that is not of epic proportions.

In 2006, the practice persuaded the Florida Supreme Court to decertify the Engle class action that had once threatened Philip Morris USA and its co-defendants with a $145bn award for damages. In a continuation of its string of bet-the-company cases, Winston & Strawn LLP attorneys represent McDonald’s in the Pelman obesity case, in which the plaintiff has alleged obesity as a personal injury. The practice has asked the judge to deny class certification.

CLIENTS: Other clients include LG Electronics and its subsidiary, Zenith Electronics, as well as Medela.

INDIVIDUALS: Thomas Frederick in Chicago has been central to the practice’s defense of Philip Morris USA, and is ‘an excellent litigator’. Also in Chicago, chairman of the firm Dan Webb is ‘one of the most renowned lawyers in the US’ and his practice transcends industry boundaries - clients say, ‘he is a top three trial lawyer. He goes from trial to trial, that’s what he does’.