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#10: You can learn the latest trends in IP and business litigation.

#9:  CLE credit.

#8: It’s a great opportunity to network with in-house counsel & more.

#7: Cool dine-arounds at some of the hottest NY restaurants.

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#5: Learning how to manage all your information without losing your mind.

#4: Did we mention the networking receptions?

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#2:  Because the Yankees aren’t the only sluggers in town!

And Reason #1: It’s the DRI in the Big Apple! Need we say more?

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And, pretty soon they'll cost less than a burger.

I've sat mostly quiet over the last few years, wondering how something as American as the hamburger could so easily become the focus of so much attack?  What in the world happened?

Over the last decade, we have heard story after story questioning the safety, efficacy and quality of this distinctly American product.  Whether you enjoy a burger on the grill, meatballs in the crock, hamburger (helper) on the stove, a quick burrito in the microwave or a family size helping of meatloaf in the oven, most Americans thoroughly enjoy -- if not cherish -- their ground beef.

But, we also have to pay for it.  In recent years, the cost of ground beef has increased substantially.  And, in the coming years, it now appears; the cost of this product will increase even more. This is because of the extraordinary amount of effort (and science) that is now required to process beef. 

From slaughter and processing to the kitchen table, billions of dollars have already been spent making ground beef as safe (and as perfect) as it can be. 

But perfect is relative, I suppose; and the onslaught of unfounded criticism continues. Set aside the occasional but continuing ramblings about whether ground beef is good for your heart (it is) or whether it increases your risk of cancer (it wont), additional heated debate persists regarding its overall safety and now -- it would appear -- its color.  And, thus, the industry is once again confronted with yet another unfortunate example of reactive sensationalism quickly outpacing reason and science. 

Will the madness ever stop?

Probably not.  So, I wont spend any time here repeating or expanding upon the expert explanations regarding what, exactly, LFTB really is.  It is beef.  And, that issue, I think, is settled.  What I will say, however, is that we should be careful not to expect ground beef to become something it is not. 

We are extremely lucky to have access to such a tasty, plentiful, safe and affordable product.  And, frankly, the health of our nation has in many ways been built on the same ground beef we now discount. 

So, back your burgers.  And, if you have any doubts, just ask your kids about how boring life would become without a virtually unlimited and affordable supply of burgers, meatballs, burritos and meatloaf. 

And, yes, we also need to think about those who struggle just to put food on the table.  We should be very careful, in the end, not to price ourselves out of our most basic needs -- like affordable protein.   As one of my readers aptly noted a few months back, if we don't get our act together soon,"maybe we'll all have to start grilling steaks on the barbecue instead of burgers [just] to save ourselves a few bucks."  

That'd be something.

The U.S. Equal Employment Opportunity Commission ("EEOC") recently announced the adoption of a four-year strategic plan that focuses on, among other things, continued efforts to address "systemic discrimination" in the workplace.  

Not surprisingly, the EEOC's strategic plan sets forth a primary objective (which the EEOC acknowledges will exhaust the majority of its resources) to combat employment discrimination through administrative (e.g., investigation and conciliation) and litigation enforcement mechanisms with regard to private employers, labor organizations, employment agencies, and state and local government employers and through adjudicatory and oversight mechanisms Congress has given the EEOC with regard to federal employers.  

Based upon the EEOC's admittedly limited resources, the strategic plan states a need "to think strategically about how best to target its efforts to ensure the strongest and broadest impact possible in its efforts to stop unlawful employment discrimination."  In this regard, the strategic plan asserts that a top priority will be to continue the EEOC's 2006 "Systemic Initiative" designed to identify, investigate and litigate cases of alleged systemic discrimination (which the EEOC describes as "pattern or practice, policy, and/or class cases where the alleged discrimination [often by a single charging party] has a broad impact on an industry, profession, company, or geographic area").  

We look forward to gaining insight on how the EEOC intends to marshal its resources over the next several years - such as through the use of Commissioner charges, directed investigations, and empirical data - to address allegedly discriminatory policies or other instances of "systemic discrimination" from EEOC Commissioner Victoria A. Lipnic during DRI's 35th annual Employment & Labor Seminar, to be held May 2-4, 2012 in Chicago, IL.  If you have not already registered for this event, please access the registration information here and secure your spot today. 

Jury selection, mock client pitches, and personal negotiation tactics, oh my!  The Women in the Law Seminar is not just for or about women.

So many helpful tips and tricks today.  Loved the synergy of humor and energy In the jury selection segment.  Lori Cohen and Samantha Holmes offered fantastic advice on how to navigate jury selection in the Facebook generation.

The client pitch presentation was especially innovative.  A role playing segment that allowed us to examine and evaluate two different client pitching approaches with a real in-house counsel representative.  Amazing props to Ashley Cummings of Hunton & Williams LLP and Jennifer Haltom Doan of Haltom & Doan LLP for providing such great examples of how client pitching works.  Can't wait to see how this presentation concludes tomorrow when April Miller Boise of Veyance Technologies Inc and Marianne Trost of The Women Lawyers Coach LLC evaluate the techniques of each.

Victoria Pynchon's negotiation presentation and breakout session were particularly helpful.  Making the case for why women need to negotiate their way up in the firm, she offered real solutions and strategies on how to negotiate for our bottom line.  Truly motivational and inspirational. 

Media strategy and the tips and tactics of developing female organizational power were the big topics of the morning at this year's DRI Sharing Success seminar in sunny Scottsdale at the Westin Kierland Resort.  The morning started off with TV and radio personality, Mary Katherine Ham.  She regularly defends her political opinions on her morning radio program, The Morning Majority, and against Bill O'Reilly on The O'Reilly Factor.  Her presentation focused on finding our voice and crafting our message and defense in the media - be it in the press, on tv, or on the Internet at large through social media.  Enlightening and refreshing and a great start to the morning. 

Linda Bray Chanow from the Center for Women in the Law spoke next and offered a very interactive discussion on the perceptions of female power in business and law. Simply by starting with a classic scenario we've all seen in our professional careers,  attendees peppered Ms. Chanow with questions and comments. Overall an incredibly collaborative and insightful presentation that will surely lead to continued discussions amongst all the attendees during the rest of the seminar.  Definitely excited to see what the rest of day has to offer.  

DRI would like to recognize and thank the over 30 attendees of this month’s Toxic Torts and Environmental Law Seminar, who volunteered their time to prepare packages to send to U.S. troops and their children.  In conjunction with Operation Gratitude, attendees stuffed 300 teddy bears to give to the children of deployed soldiers and prepared hundreds of gift bags to be sent to troops in Afghanistan, sailors and marines stationed on Navy ships, and to Wounded Warrior Transition Units throughout the United States.  

On January 11, 2011, the US Supreme Court heard oral arguments in J. McIntyre Machinery v. Nicastro, a case on appeal from the New Jersey Supreme Court, which could have a profound impact on personal jurisdiction analysis. 

In Nicastro, the New Jersey Supreme Court ruled that the state had personal jurisdiction over a foreign product manufacturer with no direct contacts with the state.  Despite the lack of contacts, the court reviewed the US Supreme Court’s last major decision in this area—Asahi Metal Industry Co. v. Superior Court of California 107 S.Ct. 1026 (1987).  In doing so, it focused on Justice Brennan’s liberally construed stream-of-commerce test.  [See this article for a more in depth examination of Nicastro and Asahi.]

Because Asahi was a plurality decision, it raised more questions than it answered with respect to personal jurisdiction analysis.  This lack of clarity allowed the Nicastro court to make statements that should trouble foreign manufacturers who have previously been shielded from liability in many US courts.  For example, the court noted that “the foreign manufacturer knew or reasonably should have known that by placing a product in the stream of commerce through a distribution scheme that targeted a fifty-state market, the product might be purchased by a New Jersey consumer.  (emphasis added.)”  Id. 201 N.J. 48, 52.  As we wait for clarity from the Supreme Court, foreign product manufacturers should be on notice that a powerful defense to being forced to litigate in US courts is under attack. 

For more information on this subject, you are invited to attend Saul Wilensky’s presentation:  “Obligations of and Jurisdiction over Foreign Manufacturers” on April 7, 2011, at the Recreational Products SLG meeting.  If you have not yet done so, please register for DRI’s Product Liability Conference, scheduled for April 6-8, 2011, at the Hilton New Orleans Riverside, New Orleans, Louisiana. 

A very common issue in emergency room cases, especially code situations, is the timing of when key events occurred.  A major challenge for defense attorneys results from the fact that the times recorded by various doctors, nurses and electronic records almost never match up. The times for key events often vary by 2-5 minutes.  Plaintiffs’ attorneys either try to select the times that are most favorable to their theory of the case, or use the discrepancies in recorded times to attack the reliability of anything in the chart.

Defense counsel frequently must use witnesses to explain the reality that doctors and nurses often use their individual wrist watches or the clock on the wall to obtain the times they record.  Those timepieces commonly do not correspond with computerized times from other monitors attached to the patient.  The ability to persuasively explain the realities of the recording of events and their times can be crucial to convincing a jury that the health care provider met the standard of care.

This issue will be discussed in two separate presentations at the upcoming DRI Medical Liability Conference in March 10-11, 2011 at the Palace Hotel in San Francisco.  Bradley Freeman, M.D. will provide the medical perspective on charting while rendering life-saving care in a code situation.  Tara Trask (a very experienced jury consultant) will use video segments from actual mock jury deliberations to explain how jurors react to these types of issues in medical liability cases.

Scott Rickman from Del Monte, Lara White from Adams and Reese, and Ken Odza of Stoel Rives will be talking at the Defense Research Institute (DRI) food law SLG session on April 8, 2011. This event is held in conjunction with the DRI annual product liability conference in New Orleans.

Click here for the complete manuscript prepared to accompany the presentation. The manuscript summarizes some of the most significant and recent rulings concerning putative class claims arising from labeling and marketing of food products. The manuscript also offers suggestions on possible strategies to defeat these claims.

The type of claims discussed involve small-dollar state law “fraud” claims aggregated over millions of products sold. The common fact pattern is this: plaintiffs challenge the labeling or marketing of a food product, alleging that consumers would not have purchased the product or paid the price they did had they known the “truth” behind the representations made. Often, the plaintiffs’ strategy is to achieve class certification and then leverage the threat of a judgment into a settlement that involves a handsome payment of attorneys’ fees.

Recently, we’ve seen a trend toward legal action for labeling and/or marketing claims of products in the “natural” area and those touting health benefits. In many of these cases, preemption has not been successful to knock out claims in their entirety. State law varies considerably, and this can often work to the advantage of a food company. When that doesn’t work and when a jurisdiction doesn’t require an individualized showing of causation or reliance, here’s an alternative strategy to dismiss claims at an early stage:

• In states where plaintiffs need not show individualized reliance/causation, they may still have to demonstrate that an objectively reasonable consumer would have been damaged by the marketing/advertising campaign. 
• The Supreme Court in Iqbal/Twombly said that a court must disregard conclusory allegations and scrutinize the complaint’s factual allegations to determine whether it nudges the alleged wrong-doing “across the line from conceivable to plausible.” The complaint must have meat on its bones. In the case of a consumer fraud class complaint, the plaintiffs’ counsel, to survive a motion to dismiss, must include references to evidence or other substantiation for the claim such as consumer surveys or perhaps a government finding.
• Without a strong factual basis as to how an “objectively reasonable consumer” might behave, consumer fraud/unfair trade practices putative class claims concerning the marketing of a food product may be in jeopardy.

Please join us at the Food Law SLG breakout in New Orleans on Friday, April 8, and hear more about these issues and other timely topics related to the food industry.