Our Litigator of the Week is Troy Brown of Morgan, Lewis & Bockius. The Philadelphia-based partner represents a company that makes bullet proof vests, but it was up to Brown to shield his client from a lethal threat: a massive consumer class action.

On Monday, U.S. District Judge Ursula Ungaro in the Southern District of Florida dismissed the case. Brown shared his thoughts on the matter with The Lit Daily.

Lit Daily: Who is your client and what were the allegations against them?

Troy Brown: We represented Point Blank Enterprises, a global leader in the development, manufacture and distribution of high performance, protective solutions for the U.S. Military and Department of Defense, federal agencies and both domestic and international law enforcement and corrections professionals.

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

On October 19, 2017, the plaintiffs – comprised of three Ohio police officers, one Ohio law enforcement association, and one Florida-headquartered law enforcement association – filed a putative national class action complaint in the Southern District of Florida attacking the SSBS vests by alleging that there was a defect in its “hook and loop” closure when a wearer used the vest in a certain way, which in turn allegedly 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 Ft. Lauderdale.

How high were the stakes? Was this an existential fight?

The stakes were very high. The plaintiffs purported to seek damages that would have included full refunds to each user of the various iterations of the 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 states, cities, municipalities and individual law enforcement officers across the country who purchase and rely on Point Blank's vests to protect them in the field on a daily basis.

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

As I noted, when someone reads that Point Blank has been sued for allegedly manufacturing and selling defective bulletproof 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.

The headlines ignored a lot of critical facts that we developed during discovery, including that the vast majority of law enforcement officers who wear SSBS vests don't remove them vests by shearing the shoulder straps. Most remove the vest by lifting it over their heads, while the shoulder straps remain intact. Even the three individual plaintiffs testified that none sheared the straps to remove the vests.

The entire premise also ignored that Point Blank has a robust warranty program, including offering replacement straps anytime an officer with an SSBS vest believed, rightly or wrongly, that her straps were losing adhesion.

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. Point Blank's entire business model is built around innovating and offering law enforcement officers and our military protective gear, including products like the SSBS vests, that will protect them in the field in the most effective way, but also with the most tactical and practical comfort and flexibility.

Not only had no officer been injured wearing the SSBS vest, but the vests had saved many officers in the field during confrontations. If Point Blank had genuinely believed – either independently or through information learned during this lawsuit – that there was a real problem with the straps, it would have acted responsibly and implemented design or other changes to remedy it. But the vests, and the shoulder straps more specifically, were not defective, as we believe the facts proved and the expert opinions concluded.

And, as we repeatedly emphasized, in this industry, Point Blank does not manufacture and sell in a vacuum. As the court noted in its opinion denying class certification, the SSBS vests were approved by the National Institute of Justice, the United States 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. Because of the complexities of the case, the expanse of fact and expert discovery, and the accelerated case management schedule, it was critical to divide and conquer, while at the same time retaining our overall thematic and trial strategy.

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 Ft. Lauderdale, one of Point Blank's other long-time outside litigation counsel, and Lenny provided valuable strategic guidance throughout the case, including through his relationships with various law enforcement associations throughout the country.

This fight didn't just take place in the courtroom. How did you help your client navigate pragmatic business issues and/or public perception as the case unfolded?

While it sounds cliché, with every filing and in every deposition, we had to develop both a litigation strategy and a business strategy to ensure that nothing we did in litigation undermined the client's ability to manage its customer relationships. And very frequently across the accelerated schedule, we needed to work with the client to craft messaging to educate the marketplace about the flaws or mischaracterizations contained in whatever was the latest filing by the plaintiffs in the lawsuit.

How did the accelerated schedule impact your defense strategy? Were you simultaneously preparing for trial even as you worked to defeat class certification?

Often times, 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. Here, 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. So, we needed to keep our eye on the ball and build our fact and expert record to try this case in the Spring of 2019.

For example, in connection with our opposition to class certification, we built a record of sworn declarations from customers and law enforcement associations around the country who were ready, willing and able to march into court and talk to the jury about their very positive experiences with the SSBS vests, including the instances where they saved lives.

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

In the world of complex commercial litigation, we deal with various interesting and challenging developments. But 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, all of which were relevant for the court's consideration on our pending Daubert motion, and therefore 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 re-open 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 U.S. District Judge Ursula 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.

By way of one example, the court noted that any alleged “increased risk of life-threatening injury” associated with the plaintiffs' allegations was “too abstract and speculative,” especially where the court observed that the SSBS vests are “approved by the National Institute of Justice, the United States Department of Justice's development and evaluation agency).”

Further, the court observed other serious deficiencies with the motion for class certification, including that (i) the classes sought for certification were not ascertainable or clearly defined, (ii) the claims would require substantial individual inquiry, and (iii) the proposed class definition did not provide the court with a manageable means of determining class members, ultimately noting that “on this basis alone the Court would find it should not be certified.”

Finally, we argued that the plaintiffs sought to improperly broaden the scope of the proposed class through class certification briefing, by seeking to certify a class including new users of SSBS vests (as opposed to just past purchasers), when they did not seek to do so in their amended complaint. 

The court made a point to indicate that it agreed with our arguments despite the fact that the court did not need to reach the issue in light of the other bases for denial. 

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 11th Circuit precedent, and will be useful to defendants in opposing class certification on similar grounds in the S.D. Fla. specifically, the 11th Circuit generally, and other courts where this opinion might be cited as persuasive authority.