Document JNGqj82aNNpdemMk9QmnExqpB

NUTTER, McCLENNEN & FISH ONE INTERNATIONAL PLACE BOSTON, MASSACHUSETTS 02110-2699 TELEPHONE: 617429-2000 FACSIMILE: 617 973-9748 January 18, 1991 18371-1 DIRECT DIAL NUMBER: (617) 439-2460 John R. Downey, Esq. Union carbide Chemicals and Plastics Company, Law Department 39 Old Ridgebury Road Danbury, CT 06817-0001 Inc. Judith Elledge, Esq. Conoco Inc. 600 North Derry Ashford P.O. Box 2197 Houston, Texas 77252-2197 Mary Sundt, Esq. The Dow Chemical Company D30 Willard H. Dow Center Midland, Michigan 48674 Re: Alice L. Warren, Administratrix v. The Dow Chemical Company. Union Carbide, et al Dear John, Judy and Mary: In connection with the Chapter 93A demand letters which were faxed to each of you on Wednesday, January 16, I enclose some additional information which you may wish to consider before fashioning a response: 1. A copy of a Nutter, McClennen & Fish Client Advisory: Massachusetts Consumer Protection Act's Applicability to Products Liability Actions, 2. A copy of relevant portions of Chapter 93A of the Massachusetts General Laws, the Consumer Protection Act, and 3. A copy of Maillet v. ATF-Davidson Co.. Inc.. 407 Mass. 185 (1990), the recent decision extending Chapter 93A to products liability cases. PRIVILEGED AND "CONFIDENTIAL MATERIAL II Received SUBJECT TO PROTECTIVE ORDER" HYANNIS, MASSACHUSETTS COUNSEL: AMSTERDAM LONDON TOKYO 1991 l A. MOORE UCC 081639 A NUTTER, McCLENNEN & FISH John R. Downey, Esq. Judith Elledge, Esq. Mary Sundt, Esq. January 18, 1991 Page 2 You should know that the demand letter to each of you is similar but not identical. However, without your consents, I did not feel free to provide each of you with the others' letters. We are researching the availability of several defenses to a Chapter 93A claim in this case. They include issues of privity, lack of retroactivity of the statute and a possible interstate commerce exemption (repealed prospectively in 1983). If these defenses have merit, they should be mentioned in any reply letter. By statute, a reply must be submitted within 30 days of receipt of a proper demand letter. In this case, a reply is due by February 13, 1990. John Downey asked me to mention that he will call Mary and Judy on Wednesday, January 23, at about 10:00 a.m. to discuss an approach to responding. I shall also be available that date to speak with all of you about fashioning a reply. It is something which must be taken seriously and I expect to have more insights into possible defenses by then. Best regards. Very truly yours, Sharon R. Burger SRB/jlf enclosures cc: Ms. Yolanda Jackson (File No. H105L-76-034969) [Typed and sent in Ms. Burger's absence.] 5178i/9 TJCC 081640