14 Annual Australian HACCP Conference August 2, 2007 Queensland, Australia

Marler Clark, LLP PS  Since 1993 Marler Clark has represented thousands of legitimate food illness victims in every State. Settlements and Verdicts – total nearly $300,000,000.  Most cases are NOT “Class Actions.” Why?

Class Action Litigation of FBI Claims in the US  Purpose behind Civil Rule 23 -Class - those that have suffered similar harm -Administrative Efficiency -Conservation of Judicial Resources -Prompt Achievement of a Group Remedy

Health Department Involvement

Class Action Advantages 1.Cost-effective method of handling small claims - cost of litigation outweighs potential recovery 2.Cases with common issues of law and facts 3.Method of effectively imposing cost of wrongdoing 4.Uniform treatment of a Defendant in one forum

Class Action Requirements 1.Numerosity - large enough to make individual suits impractical 2.Commonality - class members have legal and factual claims in common 3.Typicality - claims and defenses at typical of the plaintiffs or defendnats 4.Adequacy of Representation - Representatives adequately protect interests of Class

Foodborne Illness and Class Actions - Reality  Burden on Party Seeking Certification  Predominance - common issues as opposed to individual, fact-specific issues and conflicts  Superiority - the class action, instead of individual litigation is a better method of reaching resolution

Foodborne Illness and Class Actions - Reality  Class Actions in FBI cases are rare - only a handful in past 15 years  Why? - Liability would be the same - Strict Liability - Causation can vary widely - culture positive? -Damages - vary widely - how to combine the sick for a few days with death in one case? - Commonality and Typicality failure. Option, “sub-classes,” Opt-in, Opt-out

Foodborne Illness and Class Actions - Examples  1980’s - Salmonella Outbreak tied to contaminated Milk  Jack in the Box E. coli Outbreak  Schwan’s Salmonella Ice Cream Outbreak  Salmonella Outbreak tied to Florida Restaurant  Salmonella Outbreak tied to Nursing Home  Norovirus Outbreak in Restaurant  1990’s and 2000’s - Hepatitis A - Ig vaccine Class Actions

Class Action Recent Developments  Peter Pan Peanut Butter Salmonella Outbreak  CDC Culture-Positive S. Tennessee Cases  However, over 30 Class Actions with 50,000 Claims - What gives?

But, Class Actions/Litigation Can Work – A History Lesson Jack in the Box Odwalla

What Will a Jury Think? A Jury=12 Consumers

6600 Bank of America Tower 701 Fifth Avenue Seattle, Washington Questions?