Antony B. Klapper

While Antony Klapper has broad litigation experience, including government contracts, complex business, defamation, and employment litigation, his practice has historically focused on products liability and toxic tort defense work.

Prior to Reed Smith, Tony was a partner in the Washington, D.C. office of Kirkland & Ellis LLP.  While there, he successfully litigated cases in state and federal courts throughout the country for Fortune 10 through Fortune 1000 companies.  The products matters he handled included asbestos, lead paint, obesity, tires, automobiles, pharmaceuticals and medical devices.  Tony has a particularly strong background in developing and working with experts in complex tort litigation and in cost-effectively developing core trial presentation materials for use in high-volume litigation.  Among other publications, he is the co-author of a "Special to the National Law Journal:  Working Together is Not Just for the Plaintiffs' Bar," National Law Journal (Jan. 17, 2005).

Thoughts on Advertising:  Billion dollar tobacco lawsuits likely have turned less on whether smoking causes cancer and more on the companies' marketing targets and representations in marketing materials.  Discussions about Joe Camel's influence on a child's purchasing decision tend to generate more jury interest than epidemiological studies and pathology reports.  Similarly, in lead paint litigation, plaintiffs’ lawyers for years have attacked paint manufacturers for not including warnings in their advertisements and marketing materials and for allegedly marketing their products to children.  The recent concerns about obesity have also focused attention on advertising and marketing of food and beverage products, particularly to children.

At the heart of many product liability suits, attorney general suits, class actions and threatened consumer fraud claims is corporate conduct; and oftentimes conduct that occurred dozens of years ago.  Recurring issues in these cases include:  Who the product was marketed to and whether they were (or are) members of a vulnerable class; what the advertisements said about the product and what they did not say; whether warnings were included or were not included; whether the manufacturer acknowledges it was marketing to certain vulnerable groups or denies it was so marketing; and what were the industry standards and practices at the time.

The state of the art of advertising and marketing can become a critical issue in products cases.  Experts in history, human factors, psychology, economics, marketing and advertising are often identified, retained and testify on both sides of the “v.”  Their testimony often affects decisions on underlying liability as well as damages, including most importantly punitive damages.  Manufacturers need to be aware that their ads and marketing strategies, both today and yesterday, will be critically evaluated.  If the attack is on past conduct, the defense must, at a minimum, provide historical context.  While ads today oftentimes include warning language, ads twenty to fifty years ago did not.  A visual display and journey back in time becomes essential to educating the jury.  If the attack is on current conduct, the company must determine what its internal documents and witnesses say.  It must do so before communicating a position in formal pleadings and discovery responses on the purpose, the targets, and the effectiveness of its advertising and marketing.  Apparent or real inconsistencies are the hobgoblin of an effective defense and companies would be wise to avoid them.