In the last few years, the compliance staff of the U.S. Consumer Product Safety Commission has sought a number of significant civil penalties for failure to report or for late reporting. It is instructive to look at recent civil penalty cases to see what is important to the CPSC staff in assessing the appropriateness and level of penalties. First, however, let's examine the reporting requirements.

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In recent years, increasing numbers of large corporations have, in the hope of avoiding a conviction and all the ramifications a conviction entails, entered into Deferred Prosecution Agreements (DPAs) with the Department of Justice (DOJ). Much has been written about the lack of bargaining power companies have in negotiating these deals, and about the onerous nature of some of their terms. In this article, we suggest that companies can use the DPAs entered into by others to their advantage by treating them as guides to assist them in formulating their own compliance programs. Not only should this result in strengthened programs, but should a compliance problem nevertheless arise, having a 'government-issued' program in place could provide a company with a strong argument that it has done the most it can in formulating an effective program and hence should not be subject to prosecution.

The April 19, 1995 Oklahoma City bombing stunned the nation, not only because of the horrific nature of the act itself, but because no one thought that products as common as agricultural fertilizer and motor-racing fuel could be used to incinerate a federal building. Six years later, the 9/11 terrorist attacks again sent the nation into shock at the idea that a group of people would commit a suicide attack by taking control of four planes and crashing them into multiple buildings. These violent attacks are proof that common products are being used, and oftentimes manipulated, in an improper manner for improper uses. Consequently, the victims of such attacks are suing manufacturers and handlers of these common products for alleged negligence, even though a third party committed the act in question. If your client is a manufacturer or handler of a product, how can you help protect it from liability?

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Recent rulings of interest to you and your practice.

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In the January, 2006, issue of <i>The Bankruptcy Strategist</i>, we discussed the impact of two recent bankruptcy opinions out of the Delaware Court: <i>IT Litigation Trust v. D'Aniella et al.</i> (<i>In re: IT Group, Inc. et al.</i>) and <i>Shandler v. DLJ Merchant Banking, Inc., et al.M.</i> (<i>In re Insilco Technologies, Inc.</i>). We included a brief update in the February, 2006 issue after the Delaware courts weighed in on the subject for the third time in only 3 months. Now we discuss, in depth, the possible implications of <i>Insilco</i> and <i>IT Group</i> on plan structuring.

When faced with a 'crashworthiness case,' manufacturers in the automotive, trucking, or aircraft industries enjoy a distinct legal advantage over the plaintiff. Indeed, in the many jurisdictions where the crashworthiness doctrine is recognized, the plaintiff's burden of proof in such cases is dramatically higher than in the standard product liability action. In the automotive context, these cases are sometimes referred to as 'second collision' cases because the manufacturer's liability is based not upon the 'first collision' between the vehicles involved in the accident, but the 'second collision' comprised of the physical contact made between the plaintiff's body and the vehicle's interior.

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All product liability cases are difficult; however, a toxic product case (one which involves a substance that has caused injury during its use or application) poses more of a problem than most others. For example, some spray paints may contain toxic substances that are part of the product's composition. Therefore, the product does not have a manufacturing or design defect, but may require special warnings. The warnings on such products may be covered by the Federal Hazardous Substances Act ('FHSA'), which requires hazardous household products sold in interstate commerce to contain cautionary labeling. 15 USCA 1261. (A 'hazardous substance' is toxic, an irritant, or a strong sensitizer if the substance may cause substantial personal injury or illness as a result of any reasonably foreseeable use.)

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The first half of this article, which appeared in last month's issue, discussed the purpose and effect of recharacterization of debt to equity, distinguished recharacterziation from equitable subordination, and reviewed various approaches, including multi-factor tests, that different courts have employed in determining whether to recharacterize a claim in bankruptcy and non-bankruptcy contexts. This concluding installment explores further the Third Circuit Court of Appeals' decision in <i>In re SubMicron Systems Corporation, et al.</i>, 432 F.3d 448 (3d Cir. 2006) and discusses lessons learned from that case.