First came the media feeding frenzy about the Big Apple's bedbug infestation. Now the legal feeding frenzy has begun, with customers seeking millions of dollars in damages from New York-area retailers for alleged bedbug-related ills. But in the Feb. 28 edition of Chain Store Age Online, veteran LeClairRyan litigator Scott W. Bermack argues that retailers are generally much better-equipped to defend against bedbug claims than they might think.
"For retailers, in fact, a key PR message is encoded in the very name of the pest itself," writes Bermack, a partner in LeClairRyan's New York office and co-leader of the national law firm's Retail Industry Team. "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."
In "Bedbug City: How savvy retailers can squash lawsuits over these prolific pests," Bermack notes that while the threat of bad press can make these lawsuits seem quite intimidating, New York-area retailers can actually marshal some excellent arguments in their defense. Increasingly, he relates, plaintiffs are claiming that bedbugs bit them on specific visits to specific stores. Or they are suing retailers on the premise that bedbugs hitched rides on them inside a store, later overrunning their homes and forcing them to destroy clothes, bedding, furniture or other property. And yet, 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, Bermack writes. "Likewise, the physical symptoms associated with bedbug bites are amorphous and could have any number of other causes," he explains. "Retailers take heart: Bedbug claims are beatable."
Indeed, a bedbug could potentially hop a ride on a claimant nearly anywhere—not just in the store cited in the complaint. They can also 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," Bermack writes. "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, the attorney adds. 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," Bermack writes. "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."
In the article, Bermack also describes ways in which retailers can fight back against the legal causes of action that can stem from a bedbug claim—such as breach of the warranty of merchantability, and negligence—and gives tips on how stores can mount effective campaigns to counter potentially bad press arising from such cases. He acknowledges that, in smaller cases, it might make sense for a retailer to make a nominal offer to resolve the claim.
"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," the attorney writes, in concluding the piece. "A bedbug's bite, in other words, can be worse than a plaintiff's bark."