Caveat Manufacturer: A Definitive Product Liability Guide for Foreign Manufacturers and Exporters Doing Business in the US

Foreign manufacturers entering the American market are often tripped up by consumer safety and liability laws that could derail a successful product launch. To help prevent such mishaps, Arent Fox LLP has created a definitive guide to US product liability laws expressly geared for foreign manufacturers and exporters bringing goods to American consumers.

The new handbook — entitled “Caveat Manufacturer: A Basic Guide for Non-U.S. Manufacturers & Distributors to Understand the Judicial System and Products Liability Law in the United States” — addresses multiple issues and nuances of the US judicial process, especially potential theories of liability in the context of consumer claims. The guide also offers a number of preventative measures that companies can take to avoid or reduce the high risks of costly product liability litigation in US courts. To read the Guide, click here.

“Foreign manufacturers and exporters that distribute consumer products in the US face a long gauntlet of liability risk and exposure, and many companies unfortunately learn too late that they could have forestalled or even circumvented those hazards had they taken some remedial steps ahead of entering the market,” said Arent Fox attorney James M. Westerlind, a member of the firm’s Product-Related Litigation & Counseling group and the Guide’s principal editor.

The Guide provides a basic framework for top-mind concerns that foreign manufacturers should consider when bringing new products into the US. Its intent is to assist the manufacturers and exporters in formulating the right initial questions, while preparing a cogent and efficient plan of action to deal with liability issues.

In key sections, the Arent Fox Guide also explains that the manner in which companies respond to liability issues can test long-term reputations and brand equity — and have expensive legal ramifications. “The manner in which such claims are handled, especially initially, have a tremendous impact on the defense of the manufacturer in a US court,” notes the Guide. “A good products liability claims handling program must be responsive to the needs of the manufacturer. The program must recognize that the protection of the good will and reputation of the overseas manufacturer is frequently more important than mere financial protection. The manufacturer thus requires a claims handling organization that is responsive to its requirements and one that thoroughly understands the law of products liability.”

The Guide continues by saying that, “A good products liability claims handling program should aggressively pursue the defense of claims with prompt and thorough investigation, regular communication with the manufacturer as to all aspects of the claim, and a constant effort to keep claimants on the defensive rather than the offensive.”

The guide is divided into five main sections, with extensive detail on a variety of relevant topics. The chapter topics include:

1. The US Judicial System in Context of a Personal Injury Action
   Included is a description of federal and state courts and their interaction. This section also explains the civil litigation process from initiation of a case, through discovery and trial.
2. Jurisdiction of US Courts Over Overseas Manufacturers
   Arent Fox discusses key elements of jurisdiction and the need to challenge personal jurisdiction in a prompt manner.
3. A Primer of the Substantive Law of US Products Liability
   This section describes the various legal theories recognized in product liability litigation in the US.
4. Defenses That an Overseas Manufacturer May Assert
   This section also educates as to preventative measures that a manufacturer may employ.
5. Risk Management and Loss Prevention
   An overview of certain structural preventative measures that foreign companies should consider before issues arise and how to respond once litigation is initiated.

Arent Fox regularly counsels both domestic and foreign companies facing mandatory recalls, as well as consumer protection class actions and multi-jurisdictional litigation over allegations of product defects. The firm’s attorneys have vast experience representing manufacturers, suppliers, and distributors in a variety of industries in diverse product-related matters in courts across the United States and before various regulatory agencies.