Tony Brown, Morgan, Lewis & Bockius

Troy Brown, a Philadelphia partner with Morgan, Lewis & Bockius, represents a Pompano Beach-based company that makes bulletproof vests, and it was up to Brown to shield his client from a lethal threat: a massive consumer class action.

U.S. District Judge Ursula Ungaro in Miami dismissed the case against Point Black Enterprises. Brown shared his thoughts on the matter with a DBR affiliate, The Litigation Daily. The article has been edited for length and clarity.

 

What were the allegations against your client?

The product at issue in this case was the company’s Self-Suspending Ballistic System, or SSBS, bulletproof vest, which protects the lives of thousands and thousands of members of law enforcement daily.

On Oct. 19, 2017, the plaintiffs, law enforcement associations in Florida and Ohio, filed a putative national class action in the Southern District of Florida attacking the SSBS vests by alleging a defect in its hook-and-loop closure caused the shoulder straps to wear out prematurely. The plaintiffs alleged various express and implied warranty claims, as well as a Florida state unfair and deceptive practices statutory claim. Importantly, however, they did not claim that any wearer had been injured because of the SSBS vests and did not allege any deficiency with their ballistics or bullet-stopping power.

Plaintiffs were represented by three firms: David Cohen of the Complex Law Group in Atlanta; Alan Kanner and Cindy St. Amant of Kanner & Whiteley in New Orleans; and Michael Moskowitz and Ari Glazer of Moskowitz, Mandell, Salim & Simowitz in Fort Lauderdale.

 

How high were the stakes?

The stakes were very high. The plaintiffs purported to seek damages that would have included full refunds to each user of SSBS vests sold by Point Blank over the past five years— nearly 500,000 vests costing up to $1,000 each. It’s easy to see how high those total damages numbers could get if that damages theory ever got legs. Further, plaintiffs sought to enjoin Point Blank from selling the SSBS vests going forward — a real existential threat to the business.

At the same time, the allegations were a parallel attack on Point Blank’s product in the competitive marketplace, and we needed to help guide the company on how it could defend the SSBS in the lawsuit, while at the same time defending it in the court of public opinion.

 

The headlines sounded bad — “Pompano Beach Company Sued by Police Unions for Defective Bulletproof Vests.” But what exactly was allegedly defective about the vests?

Two thoughts tend to come to the forefront: one, did an officer get injured because one of the vests failed to stop or slow a bullet or knife attack, and two, has someone found that the vests have less than adequate ballistics or bullet-stopping power? Neither issue was in play here.

Instead, the plaintiffs developed a theory that if officers continuously removed their vests by shearing them— essentially ripping apart the connection points at the shoulder straps — then those shoulder straps would wear out “prematurely,” causing the straps to lose adhesion and potentially leading to “sagging” at the shoulders, which in turn could create an unprotected gap at the top of the vest, and theoretically (according to the plaintiffs — and it was just theory) expose a wearer to an attack vulnerability in the field.

 

 

What was your overriding message or theme in litigating this case?

Pretty simple and straightforward: the lifeblood of Point Blank’s business is protecting and serving those who protect and serve us. Not only had no officer been injured wearing the SSBS vest, but the vests had saved many officers in the field during confrontations.

As the court noted in its opinion denying class certification, the SSBS vests were approved by the National Institute of Justice, the U.S. Department of Justice’s development and evaluation agency.

 

Who were the other members of your team and what were their roles?

This victory was a tremendous Morgan Lewis team effort, and we could not have achieved the result we did for Point Blank without the hard work, creativity, dedication and passion of the entire litigation team.

My partner, Brian Ercole in Miami, was the lead architect of the class certification opposition strategy that ultimately carried the day, as well as playing a lead role developing the factual record for trial. My partner, Elisa McEnroe in Philadelphia, was the lead architect of the expert phase of the case, working hand-in-hand with our expert witnesses to develop the rebuttal to the plaintiffs’ experts and, more broadly, to build an expert record to bolster Point Blank’s overall argument that its SSBS vests were safe, effective and not defective.

My colleagues and lead associates on the case, Clay Carlton in Miami and Melissa Coates in Miami, took significant lead responsibilities developing the factual record and the class certification opposition strategy, respectively. Many other of our lawyer and legal staff colleagues played important and impactful roles supporting the team and the client, and their contributions were invaluable to this victory.

Finally, we worked with Lenny Samuels of Berger Singerman in Fort Lauderdale, one of Point Blank’s other long-time outside litigation counsel, and Lenny provided valuable strategic guidance throughout the case.

 

Were you simultaneously preparing for trial even as you worked to defeat class certification?

Oftentimes, the bulk of the focus in a putative nationwide consumer class action case like this one is to front-load all strategy, discovery, etc., to defeat class certification. Because of our accelerated schedule, the class certification decision was not going to be made until close to trial; at minimum, pretrial motions and trial prep was going to start (and for us, had already started) before we knew whether any class would be certified.

Because Point Blank vigorously stands behind the safety of its SSBS vests, our marching orders were clear: defeat class certification but, if not, try the case to the jury and win.

 

There was a dramatic (and awful) development with an expert witness for the plaintiffs. What happened, and how did you handle it?

In my now nearly 23 years of practice, I had never confronted what happened here. The plaintiffs engaged two experts to offer opinions about the central defect theory of their case. After we had completed briefing on our Daubert motions seeking to exclude those experts, and before the court had ruled, we learned that on Sept. 28, 2018, one of those experts had been arrested after a grand jury in Maryland issued five indictments charging the expert with more than 100 counts of felony and misdemeanor sex offenses involving minors while serving as a church youth group leader.

After digesting that upsetting news, we needed to determine how this impacted the case and what we needed to do. We believed that the arrest implicated the expert’s credibility, his reliability and his availability to testify at trial. We filed a notice of additional facts to bring the issues to the court’s attention, requesting leave to file a short supplemental Daubert brief.

The plaintiffs filed their own motion to substitute experts, asking the court to reopen expert discovery to allow them to secure a substitute expert, and to extend the case management deadlines accordingly. We opposed that motion, and it (along with various other motions) was pending as of the court’s denial of class certification, at which time the court denied all other pending motions as moot.

 

Why did Ungaro decline to certify the class? Any key passages in her decision that stand out?

The court agreed with our threshold argument that all of the plaintiffs — the individuals and the associational plaintiffs — lacked standing for the class claims. Importantly, the court noted that she observed several other serious deficiencies in the plaintiffs’ broader class certification arguments, which we think foreshadowed that, even had she found standing, she would have denied class certification on various other bases that we argued in our opposition.

 

 

What impact might this case have?

As a general matter, we think the court’s analysis of the key threshold individual and associational standing issues, which were the backbone of the denial of the class certification motion, were spot on, consistent with Eleventh Circuit precedent, and will be useful to defendants in opposing class certification on similar grounds in the Southern District of Florida specifically, the 11th Circuit generally and other courts where this opinion might be cited as persuasive authority.