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May 3, 2012

Case Report
Michael S. Appel

$6 million settlement in body armor case

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Sugarman Rogers’s Michael S. Appel, along with co-counsel Pitts Carr and David Cohen of Atlanta, have successfully settled a lawsuit they brought against the maker of Zylon, a fiber used in the manufacture of bullet-proof vests. The suit was filed on behalf of First Choice Armor & Equipment, Inc. against Toyobo Company, which made Zylon.

This case was brought by First Choice and arose out of Toyobo’s design, manufacture and sale of Zylon, a fiber used in the manufacture of bullet proof vests by First Choice, during approximately 2000 to 2005.

In mid-2003, two police officers were shot wearing 100% Zylon vests manufactured by another U.S. company, triggering an extensive investigation of the safety of Zylon vests by the National Institute of Justice (NIJ). In August 2005, the NIJ released a report demonstrating the failures of bullet-proof vests containing Zylon. In particular, tests demonstrated that Zylon degraded at accelerated rates when exposed to heat and humidity. As a result, the NIJ revoked the safety compliance certificates for all Zylon containing vests in the United States and also prohibited the future sale of Zylon containing vests.

First Choice alleged that it had sustained damages as a result of Toyobo’s misrepresentations about the properties of Zylon fiber so as to induce First Choice to purchase and manufacture Zylon bullet-proof vests between 2000 and 2005. Among other statements, Toyobo had falsely represented that Zylon was the “safest, lightest and best bullet-resistant fiber in the world today.” First Choice expected the evidence to show that Toyobo engaged in a multi-year pattern and practice of intentional and deceptive representations regarding the quality, condition and safety of Zylon and vests containing Zylon. First Choice further alleged that Toyobo engaged in a pattern and practice of intentionally concealing material information about the qualities and attributes of Zylon, including the fact that defects in Zylon created a substantial danger of injury and death to law enforcement officers.

The case was one of several which have been filed in various jurisdictions against Toyobo during the past few years by law enforcement agencies, other body armor manufacturers and the United States. This case, brought by First Choice in USDC in Boston, was a follow-up to class action litigation which was originally brought in early 2006 by the Southern States Police Benevolent Association and the Lowell Massachusetts Police Department among others, against First Choice. A settlement in that class action, approved by Judge Gorton in 2007, had required First Choice to recall and replace thousands of vests containing Zylon and in so doing, First Choice incurred approximately $8 million in expense.

Subsequent to settlement of the class action litigation, First Choice retained counsel for the class action plaintiffs to pursue Toyobo, the manufacturer and designer of Zylon, for losses incurred as a result of the settlement. The instant case was filed in 2009 and was settled on March 5, 2012 prior to jury empanelment on the first day of trial.

First Choice claimed that Toyobo misrepresented the quality and safety of Zylon, and convinced First Choice to use the material in manufacturing bullet-proof vests for law-enforcement customers and others for several years before Zylon was banned from the U.S. market.