Contact Sylvie Gallage-Alwis Partner Signature Litigation AARPI 49 Avenue George V, 75008 Paris Tel: +33 1 70 75 58 00 Email: sylvie.gallage-alwis@ signaturelitigation.com About Signature Litigation Signature Litigation is a specialised firm handling major high-value litigation, arbitration, and regulatory investigations. From offices in London, Paris, Frankfurt, and Gibraltar, it handles multiparty disputes stretching across multiple jurisdictions and acts for numerous worldwide manufacturers in all industries and financial institutions. Its Paris office comprises lawyers who trained at major international law firms and who are highly regarded for their expertise. Its commercial and product litigation practice is ranked Band 1 by The Legal 500. The team is recognised for its work in complex, crossborder litigation; commercial, banking, corporate and postM&A disputes; insurance/ reinsurance; product liability and environmental litigation; as well as mass litigation and class actions. WWW.LAWYER-MONTHLY.COM 55 platform, to which safety issues existing in more than one EU Member State should be reported so that all Member States’ regulators can be aware and take measures. It is very rare that an issue reported to Safety Gate does not also end up being reported to other regulators, such as the CPSC in the United States, for instance. When it comes to product liability litigation, there is an increasing trend whereby if a claim is launched in the United States and a settlement agreement is reached, similar claims are launched in the European Union, in the hope of obtaining a similar settlement. The latest major example is the first class action based on the new Directive (EU) 2020/1828 on representative actions for the protection of the collective interests of consumers that has been launched against Philips over potential health risks from foam used in sleep therapy devices. The organisations and claimants’ Counsel behind such an action explain that they are doing so, inspired by the large settlement agreed upon by Philips in the United States. The new Product Liability Directive may change the dynamic, with claims first being filed in the European Union rather than in the United States, given the new rules relating to the disclosure of documents as described in the answer to question 6. Indeed, claimants may prefer to first use a system whereby documents must be provided in an “easily accessible and easily understandable” manner rather than going through standard discovery in the United States, especially if the penalty for not complying with these requirements is that the product is deemed defective. Everything will depend on how the national courts of EU Member States react to this new legal regime. What advice would you offer to manufacturers or businesses looking to mitigate the risk of product liability in France? The main advice I would give, looking at the evolving regulatory landscape applicable to all products, is to document every step of the design, manufacturing, and after-sale process of the product. As the burden of proof is reversing against manufacturers, they should have their legal team think about how to create files, as soon as the product is at the R&D stage, that correspond to the type of files that would be created if litigation were to be launched. The legal team should think like litigators do, i.e. carry out due diligence and document steps taken all the time, in a clear and understandable way so that everything can be escalated quickly in case of a negative allegation against the company. Communications with regulators should also be carefully considered. Let’s not forget that transparency acts are being implemented throughout the European Union, forcing regulators to share data with NGOs. Companies need to assume that, from now on, everything that they share with regulators may end up in the public domain. Therefore, again, it is crucial to have the proper paperwork, which includes why some technical decisions were made in light of the scientific knowledge of the time. Finally, working on keeping all the data up to date is burdensome but an obligation that should not be overlooked.
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