As companies begin to dig out of the current pandemic and consider or re-evaluate business continuity plans, it is time for in-house counsel, risk managers and CLOs to consider ways in which to mitigate risks, including legal, operational and corporate. Here are a few considerations when contemplating risk assessments:
1. Conduct an Insurance Risk Assessment
i. Conduct a risk assessment of insurance policies. Such an assessment must be conducted to create a business risk profile to identify factors that have the greatest financial impact on the company as well as to identify appropriate risk transfer strategies to:
a) Stabilize insurance costs;
b) Mitigate extraordinary financial impact;
c) Ensure cost effective protection against catastrophic losses;
d) Optimize tax and accounting issues.
ii. Conduct an analysis of current coverage, amounts, deductibles, excess.
iii. Evaluate all insurance policies and insurance companies- coverage, costs, etc.
iv. Investigate establishment of captive insurance company.
v. Review insurance brokers to determine if the right programs are being put out to bid
vi. A review of all claims should be performed
2. Review Litigation Considerations of the Company and /or its Foreign Business Operations or Subsidiaries:
i. Affiliated companies or subsidiaries can be named as defendants. These companies will need coordination of defense and discovery matters. How do the companies handle this?
ii. Consider jurisdiction over foreign entities, including the parent entity.
a) Jurisdiction Issues
b) Maintaining Corporate Compliance
iii. Litigation Respecting Same Products in Multiple Jurisdictions-issue for electronics companies and home appliance manufacturers
iv. Insurance coverage-is it adequate? Has it been reviewed?
v. Litigation issues must be reviewed such as:
a) Coordinating billing from local counsel.
b) Insurance coverage notices and claims and updating carriers.
c) Budgeting for cases.
vi. Currently, many large US companies and subsidiaries of non-US based companies have numerous insurance related lawsuits involving class actions, product liability claims, bankruptcies, employment cases and antitrust and regulatory issues. These should be reviewed.
a) Product Liability Actions
b) Patent Actions
c) Regulatory Proceedings and Investigation
d) Commercial Disputes
e) Product Liability Costs
3. Consider Typical Legal Theories on which a Plaintiff May Base a Products Liability Claim and Class Actions In US and Elsewhere:
i. Breach of Express Warranty.
ii. Breach of Implied Warranty.
iv. Strict Liability.
v. Deceptive and Unfair Trade Practices ("DUTP").
vi. Consumer Class Actions
4. TO ADEQUATELY PROTECT AND DEFEND AND MITIGATE THE RISK OF A COMPANY AND ITS U.S. AND FOREIGN SUBSIDIARIES, NUMEROUS PROCESSES AND PROCEDURES SHOULD BE IMPLEMENTED AND REVIEWED BY LEGAL COUNSEL AND/OR RISK MANAGERS. SUCH PROCESS GOALS ARE:
i. Product Risk Management Goals.
a). Encourage correct product use, increase customer satisfaction and minimize possible injury from use.
b). Improve ability to defend the company in the event of litigation by developing and substantiating defenses to liability, reducing exposure to liability, for example, by removing grounds to impose punitive damages.
ii. Adopt Product Loss Control Policy and Procedures which include:
1. Requiring product group or divisional officers to develop programs consistent with corporate guidelines.
2. Establishment of a group Claims Defense Committee.
3. As a part of the Research – Design – Development process, conduct formal hazard/failure evaluations on all new products.
4. Publish Quality Control Standards and Procedures for all components, materials, and processes critical to product, service, safety, and reliability.
iii. Product Management Consideration Respecting Limiting Potential Liability Exposure – Develop Checklist to include in Product Readiness Approval Objectives Including Product Design Considerations:
a) Written procedures for the design program, including:
b) Design choices – consideration of alternatives.
c) Specifications – definition of acceptable ranges of variation for each characteristic to assure that all designs are reviewed before they are released to manufacturer.
d) Establish a design review committee.
a) Review all published statements about the products including advertising, product listings and catalogues to assure that they do not: mislead users, encourage users to disregard directions and warnings contained in the labeling, or promote unapproved or inappropriate uses.
b) Include provisions in distribution and purchasing agreements so that distributor and/or purchaser will:
(i) complete and return surveys and questionnaires
(ii) notify the company of any product failures or malfunctions
In 2018, Korea amended its product liability law to allow among other things, punitive damages. These changes should be on the radar of every multinational manufacturer and supplier, selling or distributing products in Korea. A short summary of the changes is as follows:
1. Introduction of punitive damages
The current product liability law limits the claim for the damages to actual damages incurred and does not include punitive damages. The new amendment will provide for punitive damages (up to three times the actual damages or treble damages) if (i) the manufacturer knew about the defect of the product and failed to take necessary measures and (ii) the defect resulted in significant harm to a consumer’s life or body. The claimant has the burden of proving the fact that the manufacturer knew about the defect of the product and failed to take necessary measures.
2. Lessening of the claimant’s burden of proof
The amendment provides that if the claimant proves that (i) the claimant incurred damages while the product is used in the ordinary course of use, (ii) the damage was caused by a cause which is under de facto control of the manufacturer, and (iii) the damage does not customarily occur without the relevant defect of the product, it shall be presumed that the product was defective (existence of defect) and the damages are caused by the defect in the product (the causality between the defect and damages).
3. Shifting of the claimant’s burden of proof in case where the manufacturer is unknown
Under the current product liability law, in order for a claimant to seek compensation from the distributor in case where the manufacturer is unknown, the claimant had to prove that the distributor knew or could have known the manufacturer. Under the amended law, , if the manufacturer is unknown to the claimant, the claimant may seek compensation from the distributor regardless of whether the distributor knew or could have known the manufacturer.
With introduction of the punitive damages, manufacturers doing business in Korea should review their internal procedures regarding the handling of product defects. Distributors also should review processes on handling information on the manufacturers and distributors who supply the products. Companies are also advised to establish internal procedures for taking appropriate measures in case of consumer complaints in order to minimize product liability risks such as (i) immediate suspension of sales or recalls, or (ii) adding additional or appropriate warnings in the label for the product.