CD: Reflecting on the past 12-18 months, what trends would you say have defined multijurisdictional product liability claims? Have you seen an increase in such cases?

Speed: From a UK and European perspective, we have seen no particular increase in noteworthy multi jurisdictional product liability claims in recent months. This is in part because consumers will generally seek legal redress through means other than the courts, for example by exercising contractual rights under product guarantees or insurance policies. That said, we have increasingly seen that producers of products and participants within supply chains are becoming concerned about the product liability claims they could face in relation to new and disruptive technologies, where there is a blurring of the distinction between physical devices, intangible products and the provision of services – particularly for Internet of Things (IoT) and connected devices, products with autonomous functionality and artificial intelligence (AI). This is a real area of focus for the digital technology and automotive sectors.

Beisner: The volume of multijurisdictional product liability claims has been increasing, but not dramatically. With notable exceptions, such claims normally first appear in US courts. If they get traction in the US, filings may then commence in other jurisdictions. For plaintiffs’ counsel, the key to getting traction is to secure creation of a nationwide federal multidistrict litigation (MDL) proceeding, a step that normally encourages the filing of additional claims. In short, ‘getting traction’ is not so much a matter of plaintiffs successfully adjudicating their claims, it is much more about creating an appearance that many people have experienced a problem with a product.

Apr-Jun 2018 issue

Bird & Bird LLP

Kirkland & Ellis LLP

Skadden Arps Slate Meagher & Flom LLP