Tanenbaum Keale LLP associate Timothy Freeman recently wrote a Law360 Expert Analysis article regarding the fine distinctions between product liability and consumer fraud/unfair trade claims, and a recent decision from the Supreme Court of Connecticut that addresses this issue.

“Attorneys defending against such claims should first consider whether the unfair trade/consumer fraud claims have been adequately pled,” Freeman wrote, “as there are often heightened pleading standards that must be met for such claims to proceed. Next, attorneys should consider whether product liability claims are being improperly reformulated as unfair trade/consumer fraud. In general, the same conduct cannot be both a failure to warn and unfair trade/consumer fraud based on misleading or fraudulent sales tactics. As such, the specific facts of the case and relevant case law addressing the fine distinctions between product liability and unfair trade/consumer fraud must be scrutinized.”

Freeman concludes that unfair trade/consumer fraud violations and product liability claims can coexist in the same lawsuit but that often there is overreach from attorneys in the efforts to combine them.

“… (I)ncentives such as treble damages and attorneys’ fees often cause enterprising attorneys to attempt to squeeze product liability claims into the rubric of unfair trade/consumer fraud,” he wrote. “A complete understanding of the case law and pertinent distinctions between product liability and unfair trade/consumer fraud can be crucial to the defense of such multifaceted lawsuits.”

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