By Scott W. Bermack, Scott.Bermack@leclairryan.com
Bedbugs overtook New York City last summer, striking fear into the hearts of many retailers. Indeed, bedbug complaints increased by 40% in the past three years and by some estimates about 800,000 New Yorkers were affected in 2010. Retail stores, TV stations, movie theaters and schools all reported sightings. Even former president Bill Clinton battled an outbreak in his Harlem office. Now the lawsuit parade has started. Claimants are seeking millions of dollars in restitution for the likes of itchiness, blotchiness, depression, anxiety and other supposedly bedbug-related ills. Others claim that bedbug exposure forced them to throw out their clothing, mattresses and even furniture. Plaintiffs’ lawyers are circling, a feeding frenzy is underway -- and now your store is involved. What to do?
Once you become aware that someone has spotted a bedbug in your store (or intends to make a questionable claim to have done so), the initial task is to manage the potential for a public relations crisis. This involves careful planning and a cohesive strategy: From the c-suite to the boots on the ground, all hands should be aware of the company’s plans to either mitigate exposure or demonstrate the frivolous nature of the claim. This message should be consistent, informed and credible.
Fortunately, retailers are generally much better equipped to defend against bedbug claims than landlords or hoteliers. Shoppers rarely leave a store with visible bites. For retailers, in fact, a key PR message is encoded in the very name of the pest itself. Since bedbugs can only feed while their human host is relatively motionless, actual beds tend to be their favorite dining rooms. Sleeping humans are their preferred meal, not on-the-go shoppers toting bags from Saks Fifth Avenue or the Apple store. And precisely because bedbugs are frequent travelers that can be found all over the city, plaintiffs in these cases typically have great difficulty in proving the actual location of their alleged exposure. Likewise, the physical symptoms associated with bedbug bites are amorphous and could have any number of other causes. Retailers take heart: Bedbug claims are beatable.
Nonetheless, these hurdles haven’t stopped customers from blaming stores for their alleged bedbug woes. Often, a shopper whose home is overrun will claim that the entire infestation originated from a single visit to a particular store. The media has fed this beast: The rise in bedbug sightings and complaints filed with the city has been widely reported. (In a recent Google News search, nearly 800 stories mentioning the term “bedbug” hit the web in a 24-hour period.)
This kind of media exposure brings out the litigiously inclined. But this is where retailers can strike back with their own legal jujitsu, using the content of those news stories to their advantage. Recent headlines have labeled New York “Bedbug City” and have documented the dramatic spread of the pests. A bedbug could potentially hop a ride on a claimant nearly anywhere -- not just in the store cited in the complaint. Likewise, news stories frequently explain that bedbugs are opportunistic hitchhikers. Reporters love to describe the way these pests can crawl from one person to the next. “Even sitting next to someone on the subway carries bedbug risks,” they intone. And, of course, bedbugs can stay dormant for many months between feedings, which means a building could be infested, even without obvious signs of activity.
Thus, it is quite difficult to establish that a home infestation resulted from a visit to a particular store. In Bedbug City, incidental contact with potentially bedbug-laden people and places is a fact of life. In our view, most claimants likely will be unable to document their every move in the weeks prior to the alleged infestation. Without such documentation, determining the origin of the exposure frequently requires utter speculation.
Retailers can also arm themselves with science. Bedbugs are prolific in their reproduction, but it takes several weeks for their eggs to actually hatch. Unaware of this, the typical plaintiff tries to link the timing of the bedbug exposure to a recent shopping trip. Therefore, claims that the plaintiff “instantly” saw bugs or began to itch “right away” generally will help to establish the defense that the bedbugs could not have come from the purchase in question. Unless the product was already teeming with bugs when removed from the bag (and if it was, wouldn’t someone have noticed?), it likely would take many weeks for a colony to take root in the claimant’s residence.
The causes of action that can stem from a bedbug in a retail setting would include breach of the warranty of merchantability and negligence. A viable defense should focus upon the fact that, legally, the presence of a bedbug would not render an item of clothing or a blanket un-saleable. This is because the item would still be sufficient to carry out its primary purpose. Simply putting it in the dryer for 20 minutes or brushing off a visible bug should make it usable. Therefore, the item arguably never violated any implied warranty.
With regard to the negligence claim, to be entitled to damages the claimant would need to establish that the store was on notice of a bedbug problem and failed to adequately remediate it. Otherwise, negligence will be difficult to prove. And if the retailer was indeed negligent -- well, that’s a case that should likely be settled.
Recognizing the potential for adverse media coverage as well as the desire to keep the customer base happy, it is reasonable for retailers to make nominal offers to resolve certain claims. However, when faced with a greedy customer or an overzealous plaintiff’s lawyer, the store should rest comfortably in the knowledge that there are numerous substantive defenses to these often-baseless claims.
A bedbug’s bite, in other words, can be worse than a plaintiff’s bark.
Scott W. Bermack is a partner in LeClairRyan’s New York office and co-leader of the national law firm’s Retail Industry Team. He routinely defends self-insured retailers and other companies, as well as insurance companies, in complex, high-stakes litigation. He can be reached at Scott.Bermack@leclairryan.com.