The Jere Beasley Report September : 2020

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CAPITOL OBSERVATIONS

A National Treasure

Fred Gray and I have been friends since around 1966. We first met when I was a young lawyer in my hometown of Clayton. Fred is an outstanding lawyer and is a man who has greatly influenced the civil rights movement in our country. As a young lawyer, Fred Gray found himself on a different path than what he initially intended – service through ministry as a preacher. But he has been no less servant leader, dedicating his career to the cause of Civil Rights, equality and justice. Fred vowed to continue his mission as long as necessary, and at age 89 he is still going strong against injustice.

Born in Montgomery, Alabama, Fred attended school here until seventh grade, when he traveled to a Christian boarding school in Tennessee, still with the idea of eventually becoming a preacher. He returned to Alabama for college, graduating in 1951 from Alabama State College for Negroes (now Alabama State University). During his tenure there, he had shifted his focus to law school, seeing a path of service in the profession.

But because no law school in Alabama would admit Black students, Fred traveled to Cleveland to earn his juris doctor from Case Western Reserve University School of Law in 1954. He then headed home to set things right in Alabama, for starters.

Among his first clients was Rosa Parks, whom he represented after she was arrested in 1955 after refusing to yield her seat on a bus to a white passenger, sparking the Montgomery Bus Boycott, which the History Channel notes is “widely regarded as the earliest mass protest on behalf of civil rights in the United States.” It would also put a national spotlight on Dr. Martin Luther King, Jr., who quickly emerged as one of the most significant leaders of the civil rights movement. Fred would become Dr. King's general counsel.

Drawing from his personal experience, school desegregation was a mission field for Fred. When the U.S. Supreme Court ruled in 1954 that segregation of public schools was unconstitutional in Brown v. Board of Education, he represented Vivian Malone and James Hood, securing the right for the two Black students to integrate the University of Alabama. In 1963 Fred successfully sued Florence State University (now University of North Alabama) to admit Wendell Wilkie Gunn, and worked to desegregate Auburn University.

Also in 1963, Fred filed Lee v. Macon County Board of Education. In 1967, he won a major victory securing an order that desegregated 105 of the 119 school systems in Alabama, including everything under the control of the State Board of Education. His work in the courtroom in his crusade for desegregation would also yield four landmark Supreme Court victories in his first 10 years of practice – a testament to his tireless dedication to his mission.

I could spend many pages of this Report listing Fred Gray's accomplishments in the arena of Civil Rights law. As the Montgomery Advertiser notes, “If it had to do with segregation or civil rights in Alabama between the mid-1950s and today, Gray likely had a hand in it.” I will close by saying that Fred Gray is a great American who did many great things that were also “right things” in the battle for justice and equality for all people. But Fred always did what he did for the “right reason.” I put Fred in the same league with Dr. King and Rep. John Lewis. Truly, Fred Gray is a “national treasure!”

Source: Montgomery Advertiser and History Channel

THE TALC LITIGATION

Talcum Powder Litigation Update

The Beasley Allen Talc Litigation Team has been hard at work over the last month, with favorable rulings and news coming out in multiple jurisdictions. As discussed at length in a separate article, with a favorable ruling coming out of the Superior Court of New Jersey, our lawyers will be moving forward with setting cases in Atlantic City as another potential trial venue. The team is also using the New Jersey decision to supplement the record in other jurisdictions throughout the country, as the original ruling was one of the few rulings favorable to Johnson & Johnson, and the company has been relying on it for years.

The multidistrict litigation (MDL) team continues to work on ensuring Plaintiff Profile Forms are completed by early September. Along with this, many cases have been remanded to their original jurisdictions, and the talc team is hard at work getting these reset in various state courts. In particular, a lot of effort has gone into the cases that were remanded to Missouri. The three-plaintiff trial set for February 2021 in St. Louis remains on track with additional potential trial settings in St. Louis throughout the rest of the year.

In Illinois, the Nov. 30 Cadagin trial setting remains unchanged and will likely be the next talc trial as firms and courts throughout the country continue to deal with the COVID-19 pandemic. Efforts continue in this matter, with video and remote hearings used to further the litigation. Efforts to resume trials in Atlanta and Philadelphia continue, and the Beasley Allen team is ready to move forward in both jurisdictions as soon as possible.

As mentioned above, Atlantic City is now being considered as another potential trial venue, and the team has also continued to forge ahead with setting additional trials in South Florida in 2021. For additional information on these cases, contact Ted Meadows, Leigh O'Dell or Brittany Scott at 800-898-2034 or by email at Ted.Meadows@beasleyallen.com, Leigh.Odell@beasleyallen.com or Brittany.Scott@beasleyallen.

A Critically Important Ruling In A New Jersey Appellate Court

A New Jersey appellate court overturned a 2016 district court ruling that dismissed the claims of two women alleging that regular, decades-long use of Johnson & Johnson's Baby Powder led to their ovarian cancer. The appellate court's three-judge panel sharply criticized the actions of the trial judge, which prohibited testimony from the Plaintiff's causation experts and granted J&J's motion for summary judgment.

The Appeals Court found that the judge's decision focused on the merits of the Plaintiff's experts' opinions rather than the experts' methodology. As a result, J&J's summary judgement was improperly granted since the merits of expert testimony should be permitted for jury consideration. The panel, consisting of Justices Carmen H. Alvarez, Karen L. Suter and Patrick DeAlmeida, explained:

The judge relied upon his own reading of the supporting material to dismiss the opinions of plaintiffs' principal experts as flawed. In other words, his conclusions went to the merits of their opinions and his disagreement with them, rather than their methodology and the soundness of their data. In some instances, he relied upon defendants' expert opinions to explain his disagreement, and mischaracterized it as proof of unsound methods. We conclude, contrary to the trial judge, that the experts' opinions were indeed based on sound methodology applied to data upon which experts in their field may reasonably rely. Therefore, genuine issues of material fact preclude the grant of summary judgment to defendants. We are satisfied that plaintiffs' experts adhered to methodologies generally followed by experts in the field, and relied upon studies and information generally considered an acceptable basis for inclusion in the formulation of expert opinions. Suppression of their testimony was an abuse of discretion.

The original lawsuits, rejected by the trial judge, were filed by Brandi Carl and Diana Balderrama in 2014 and were the first talc-ovarian cancer lawsuits filed in state court in New Jersey, where Johnson & Johnson is headquartered. Ted Meadows, who along with Leigh O'Dell, is heading up the J&J talc litigation for our firm, expounded on the ruling:

The appellate panel correctly ruled that a judge should serve as a gatekeeper and not substitute his own opinion in considering the credibility of expert witnesses and their testimony. We look forward to trying these cases before New Jersey juries, and bringing forward the many other claims that have been suspended pending this ruling.

The evidence submitted in the 2014 cases was limited to the women's exposure to platy talc in J&J's Baby Powder. Evidence of additional carcinogenic components, such as asbestos and fibrous talc, as well as scientific evidence published since 2016 was not considered. This is extremely significant as such additional evidence strongly supports the causal link between the genital use of talc and ovarian cancer.

Additionally, more than 18,000 claims have been filed in the federal multidistrict litigation (MDL) alleging a causal connection between talc use and ovarian cancer as well as J&J's suppression of the related evidence and science.

This was an extremely important victory, not only for the Plaintiffs in the case, but also for all women who have been victimized by J&J's greed and a total disregard for the health and welfare of women who used the talc products.

In late April 2020, MDL Judge Freda L. Wolfson found that numerous medical, scientific and mineralogical experts could testify in upcoming bellwether trials. Judge Wolfson's ruling was a very important victory, not only for the Plaintiffs in their cases, but also for all women who have been victimized by J&J's greed and blatant disregard for its consumers.

Appeals Court Denies J&J's Motion To Reconsider $2.1 Billion Verdict

The Eastern District Court of Appeals has denied Johnson & Johnson's motion to reconsider its decision to uphold a jury's finding that the company's talcum powders contained asbestos and other impurities that caused 22 women to develop ovarian cancer. The court also upheld most of the multi-billion dollars in damages the company was hit with.

Johnson & Johnson (J&J) had asked the Missouri appeals court to not only rehear the case, but to have it transferred to the Missouri Supreme Court. Both motions were denied. According to state law, J&J had to file a motion with the appellate court to transfer the case to the Missouri Supreme Court. The denial paves the way for J&J to petition the high court to hear its case.

The consumer health care giant was hit with the landmark $4.69 billion verdict in July 2018 and has since fought to have the damages thrown out. In June, the Missouri appellate panel refused to toss the verdict, siding with jurors who found that the company was aware the talc it used could become contaminated with cancer-causing asbestos, but sold it to consumers anyway. The panel, however, did reduce the award to $2.11 billion.

“We find the punitive damages awards assessed against Defendants, as adjusted, are not grossly excessive considering Defendants' actions of knowingly selling products that contained asbestos to consumers,” the appellate panel said.

The panel also delivered more blows to J&J when it ruled that St. Louis Circuit Court Judge Rex Burlison was right when he allowed multiple Plaintiffs – some of whom were from out of state – to proceed in one trial. The panel also rejected J&J's motion to disregard the women's scientific experts. The case is now in the Tennessee Supreme Court. Stay tuned!

Source: Law360

Beasley Allen Talc Litigation Team

Beasley Allen lawyers Ted Meadows and Leigh O'Dell head up the Beasley Allen talc litigation. The team handles claims of ovarian cancer linked to talcum powder use for feminine hygiene. Our lawyers are also handling mesothelioma claims. A separate team of lawyers handles that type talc claims led by William Sutton. They are looking at cases of industrial, occupational and secondary asbestos exposure resulting in lung cancer or mesothelioma as well as claims of asbestos-related talc products linked to mesothelioma. Members of the team, in alphabetical order, include: Kelli Alfreds ( Kelli.Alfreds@beasleyallen.com), Ryan Beattie ( Ryan.Beattie@beasleyallen.com), Beau Darley ( Beau.Darley@beasleyallen.com), Liz Eiland ( Liz.Eiland@beasleyallen.com), Jennifer Emmel ( Jennifer.Emmel@beasleyallen.com), Jenna Fulk ( Jenna.Fulk@beasleyallen.com), Lauren James ( Lauren.James@beasleyallen.com), James Lampkin ( James.Lampkin@beasleyallen.com), Caty O'Quinn ( Caty.OQuinn@beasleyallen.com), Cristina Rodriguez ( Cristina.Rodriguez@beasleyallen.com), Brittany Scott ( Brittany.Scott@beasleyallen.com), Matt Teague ( Matt.Teague@beasleyallen.com), David Dearing ( David.Dearing@beasleyallen.com) and Margaret Thompson ( Margaret.Thompson@beasleyallen.com).

OPIOID LITIGATION

Update On The Opioid Litigation

Due to the COVID-19 pandemic, the only opioid crisis litigation to go to trial is the State of Oklahoma's case against Johnson & Johnson (J&J), which resulted in a $465 million verdict from the bench against J&J. The State of Alabama's case against Endo Health Solutions and McKesson Corporation has been re-scheduled for May 2021. Similarly, the State of Georgia's case against opioid manufacturers Endo, Actavis, Teva, and Mallinckrodt and opioid distributors McKesson, Cardinal Health, AmerisourceBergen, and Smith Drug, has been delayed until May 2022. Beasley Allen represents both the State of Alabama and the State of Georgia in these cases. Trial dates for other states and local governments are currently in flux due to the pandemic.

The Wall Street Journal reported that states are asking for around $26.4 billion from major pharmaceutical industry players in a nationwide settlement attempt. The current talks involve McKesson Corp., AmerisourceBergen Corp., Cardinal Health Inc., and Johnson & Johnson. The pandemic stalled discussions that have been underway for more than a year by delaying a major trial in New York originally scheduled in March, which was expected to be a pressure point on settlement talks. A new round of trial dates, including ones in October in Ohio and West Virginia, are ramping up the sense of urgency to resolve the cases. Settlement talks are a result of the lawsuits from more than 3,000 states, local governments and Native Americans, blaming companies up and down the pharmaceutical supply chain for contributing to an influx of opioids into their communities.

Purdue Pharma LP, which filed for Chapter 11 protection last September to deal with the financial strain of the thousands of suits it faces over its role in the opioid epidemic, is now feeling heat from the Justice Department. Filings made by the Justice Department contain criminal and civil implications as federal prosecutors are investigating whether Purdue violated criminal statutes as well as offered kickbacks to doctors and pharmacies. The months of settlement negotiations between Purdue and states and local communities could be disrupted now that the Justice Department is seeking as much as $18.1 billion from Purdue.

Pharmacies Must Face Ohio Opioid MDL's 2021 Bellwether

Judge Dan Polster, the Ohio federal judge overseeing opioid multidistrict litigation (MDL), has refused to dismiss two Ohio counties' bellwether cases against pharmacies, allowing their public nuisance claims over the dispensing and distribution of opioids to move forward. The pharmacies' arguments that state laws and regulations precluded Lake and Trumbull counties' claims that they turned a blind eye to red flags they were fueling the opioid epidemic was rejected by Judge Polster. He said the companies ignore the fact that Ohio courts for decades have recognized a common law claim for absolute public nuisance based on a Defendant's illegal conduct.

Judge Polster also rejected the pharmacies' contention that only their pharmacist employees have a duty under the Controlled Substances Act (CSA) to prevent opioids from being diverted due to illegitimate prescriptions, which he called “deeply troubling.” Judge Polster said:

In other words, the pharmacy defendants now ask the court to conclude that the CSA, as a matter of law, does not impose any obligation on a pharmacy-registrant, itself, to identify or investigate dubious prescriptions prior to filling them. The court declines to do so, as this strained interpretation of the CSA would turn the fundamental purpose of the act on its head.

Judge Polster said the CSA makes it clear that anyone, including a pharmacy itself, who knowingly filled an illegitimate prescription violated the law. Additionally, given that a pharmacy must collect the data required to spot a pattern of illegitimate prescriptions, the judge said it is in the best position to spot red flags, not pharmacists. Judge Polster said in his order:

Identifying prescriptions presented over time for the same drugs or combinations of drugs, in the same quantities, issued by the same doctor (and possibly presented to different pharmacists in different stores owned by the same pharmacy), would test the limits of human memory; this red flag would be nearly impossible for any individual pharmacist to discern absent some global mechanism for reference to other prescriptions.

The pharmacies' argument that they cannot be responsible for identifying red flags because they don’t have the specialized knowledge and skill that pharmacists have did not fare any better with Judge Polster, who said:

But the pharmacy defendants do have an obligation under the CSA to employ someone who does have and can exercise appropriate professional knowledge, judgment, and skill on their behalf. In sum, the court concludes the pharmacy defendants have failed to meet their burden of demonstrating there is no corporate-level obligation to design and implement systems, policies, or procedures to identify red flag prescriptions.

The counties claim that the pharmacies created a public nuisance by failing to monitor suspicious orders of opioids and only belatedly put in systems to detect those orders. Trumbull County and Lake County in May said that the chains, which include CVS and Rite Aid, had extensive data on the opioids they distributed and could have taken action to prevent filling suspicious opioid prescriptions, but instead fueled a black market for opioids. They also contend that the pharmacies failed to train pharmacists and technicians on how to spot suspicious orders and what to do if a prescription is possibly illegitimate.

Judge Polster selected the counties' bellwethers in April, which is set for May 24, 2021. The cases are County of Lake, Ohio v. Purdue Pharma LP et al., (case number 1:18-op-45032) and County of Trumbull, Ohio v. Purdue Pharma LP et al., (case number 1:18-op-45079) in the U.S. District Court for the Northern District of Ohio. The MDL is In re: National Prescription Opiate Litigation, (case number 1:17-md-02804) in the U.S. District Court for the Northern District of Ohio.

Source: Law360.com

The Beasley Allen Opioid Litigation Team

Beasley Allen's Opioid Litigation Team includes Rhon Jones, Parker Miller, Ken Wilson, Alyssa Baskam, Rick Stratton, Will Sutton, Jeff Price and Tucker Osborne. This team of lawyers represents the State of Alabama, the State of Georgia, and numerous local governments and other entities, as well as individual claims on behalf of victims. If you need more information on the opioid litigation contact one of these lawyers at 800-898-2034 or by email at Rhon.Jones@beasleyallen.com, Parker.Miller@beasleyallen.com, Ken.Wilson@beasleyallen.com, Alyssa.Baskam@beasleyallen.com, Rick.Stratton@beasleyallen.com, William.Sutton@beasleyallen.com, Jeff.Price@beasleyallen.com or Tucker.Osborne@beasleyallen.com.

COURT WATCH

Federal Judges Must Have Better Data Privacy

New Jersey federal judge Esther Salas has made an emotional plea for better privacy laws for U.S. District judges and other jurists after a racist and misogynistic gunman stormed the judge's home in July and shot her son to death.

Judge Salas, whose husband was also critically wounded in the ambush, has appealed to lawmakers at all levels to engage in a “national dialogue” to find ways to better protect the personal information and privacy of judges so that they and their families don’t have to live in constant fear. She called for action in a YouTube video

On July 19, Judge Salas and her husband, Defense attorney Mark Anderl, hosted a birthday party for their 20-year-old son Daniel Anderl with his classmates from Catholic University of America in Washington DC.

After the party, Daniel and his mother were cleaning in the basement. Daniel said “I love talking to you, mom” and at “that exact moment,” the doorbell rang, Judge Salas recalled. Daniel questioned who would be ringing the doorbell at that time and sprinted up the stairs to find out. In moments, gunshots and screams rang out.

Daniel took a bullet in the chest trying to protect his father, who was shot three times and has undergone multiple surgeries, Judge Salas said.

The gunman, Roy Dem Hollander, a self-described “anti-feminist lawyer,” already had a reputation for portraying himself as a perturbed victim of feminism and an unhinged right-winger who had a “seething hatred of women.”

Judge Salas had overseen a 2015 case handled by Hollander, and in the intervening years the lawyer took aim at the judge on social media with posts that exhibited “dueling forces of lust and contempt,” according to one feminist blogger.

To Judge Salas, Hollander was nothing more than a “monster” who took the life of her only child and nearly killed her husband in a cruel act of senseless violence. In her video, she said:

I am here asking everyone to help me ensure that no one ever has to experience this kind of pain. We may not be able to stop something like this from happening again, but we can make it harder for those who target us to track us down. My son's death cannot be in vain. I am begging those in power to do something to help my brothers and sisters on the bench. Now, more than ever, we need to identify a solution that keeps the lives of federal judges private.

Judge Salas blames the online availability of personal information that allows deranged individuals like Hollander to access all they need to know to stage an attack on judges and their families. Companies such as Spokeo Inc. and Radaris sell personal data to anyone who wants to purchase it. So far, just one state – California – has passed a law that enables consumers to have their personal information erased from such websites.

Since the murder of Judge Salas' son, some legislation has been proposed in the U.S. Senate and the New Jersey legislature addressing the dire threat that this blatant lack of privacy poses to jurists. But will it be enough?

There is no doubt federal judges need and deserve better protections. But the truth is companies that traffic personal data put judges at every level and all Americans at risk. In a politically and culturally charged era that has seen the rise of right-wing militias, hate crimes and gun violence, how companies handle and store the personal data of millions of Americans should be a grave concern to everyone. Judges must be protected and affirmative steps must be taken by the federal government to make it happen!

Sources: Law360, YouTube and The Washington Post

THE WHISTLEBLOWER LITIGATION

7th Circuit FCA Ruling Deepens Circuit Split On DOJ Dismissals

The Court of Appeals for the Seventh Circuit, on Aug. 17, outlined a new way of assessing U.S. Department of Justice (DOJ) efforts to get rid of whistleblower suits under the False Claims Act (FCA). This exacerbated a longstanding circuit split and injects more questions into the DOJ's controversial and I believe ill-advised campaign. Many observers saw this ruling as a real surprise. I believe the DOJ lawyers are using the “Granston” memo to get rid of whistleblower FCA lawsuits. Since the 2018 memo, the DOJ has sought to delete about 50 whistleblower cases from its FCA docket. This is more than the DOJ targeted for dismissal in the prior 30 years combined. With the massive fraud in government contracts that we are seeking now, the question is why this trend?

Prior to the Seventh Circuit ruling, virtually all of the cases dismissed have been evaluated under one of two standards, each of which dates back roughly two decades. Those are:

  • the D.C. Circuit's Swift standard, which gives the DOJ a virtually “unfettered right” of dismissal, and
  • the Ninth Circuit's Sequoia Orange standard, which demands that dismissal serve a valid government purpose.

But instead of following one of those paths, the Seventh Circuit charted its own course. The appeals court wrote:

We view the choice between the competing standards as a false one, based on a misunderstanding of the government's rights and obligations under the False Claims Act.

At issue was one of a dozen FCA suits filed in federal courts around the country by a whistleblower company, the National Healthcare Analysis (NHCA) Group, alleging unlawful drugmaker kickbacks to prescribers in the form of free nursing services and reimbursement assistance. The DOJ has concluded that the purported kickbacks aren’t objectionable, which would make the NHCA suits “improper.”

An Illinois federal judge last year refused to dismiss an NHCA case against Belgian drugmaker UCB Inc., finding the DOJ failed to perform a “minimally adequate investigation to support the claimed governmental purpose.” The DOJ then appealed. In reversing the lower court's decision, the Seventh Circuit found that neither the Swift nor Sequoia Orange standards are correct

It now appears there are three standards, all deferential to the government. The DOJ has cited the near uniformity of outcomes in urging the U.S. Supreme Court not to get involved. However, I believe the High Court will eventually have to create a single standard, given that the debate implicates important questions about executive branch discretion and high-stakes litigation under the FCA, a statute that the justices examine frequently.

One of the most important parts of the Seventh Circuit decision explored an FCA clause that lets the DOJ terminate a case so long as the whistleblower is given “an opportunity for a hearing on the motion.” Under the Swift standard, those hearings are merely opportunities for whistleblowers to persuade the DOJ to change its mind, with the judge acting as little more than a passive observer. But during a hearing last year on a DOJ motion to dismiss the case against UCB, U.S. District Judge Staci Yandle didn’t like playing a “ceremonial role.” She said:

The suggestion that the statute provides nothing more than an opportunity for us to host you in this wonderful venue and perhaps serve you some donuts and coffee is almost preposterous

The Seventh Circuit now agrees with Judge Yandle on that point, finding “the court is not called upon to serve as a mere convening authority.” Instead, hearings could be used in “exceptional cases” to look for government misconduct, including fraudulent statements to the court and violations of equal protection rights, the circuit court wrote.

The FCA's hearing requirement is believed to be among the most important issues that the Supreme Court could clarify. But while the Seventh Circuit concurred with Judge Yandle that hearings shouldn’t be perfunctory exercises, it faulted her for demanding a “meaningful cost-benefit analysis” to support the DOJ's dismissal bid. the appeals court ruled:

No constitutional or statutory directive imposes such a requirement. None is found in the False Claims Act. The government is not required to justify its litigation decisions in this way.

Ultimately, DOJ motions to dismiss usually should be granted if the government's conduct “does not bump up against” the Federal Rules of Civil Procedure, the FCA or the Constitution, according to the Seventh Circuit. That approach is much like the Swift standard. Notably, the Seventh Circuit raised the prospect of legislation to add guardrails around DOJ dismissals. The court wrote:

If Congress wishes to require some extra-constitutional minimum of fairness, reasonableness or adequacy of the government's decision [to dismiss], it will need to say so.

In the meantime, further ambiguities could emerge from pending cases in circuits that haven’t formally adopted standards for assessing DOJ attempts to get rid of FCA suits. As one example, the Fifth Circuit recently heard arguments in two additional NHCA cases that the DOJ successfully derailed in district court.

This decision from the Seventh Circuit also determined that the DOJ must formally intervene in a whistleblower's FCA case in order to dismiss it. That's significant because if the DOJ initially declines to intervene, it can only intervene later for “good cause.”

The DOJ should be protecting taxpayers and fighting fraud! Hopefully, the U.S. Supreme Court will clean up the confusion that currently exists.

Source: Law360.com

Sen. Grassley Aims To Curb Justice Department's FCA Dismissals

Based on the Seventh Circuit decision, and all of the confusion that now exists, it's definitely time for Congress to act. Congress must monitor the efforts by the U.S. Department of Justice (DOJ) to hinder the False Claims Act (FCA) litigation. Sen. Chuck Grassley, R-Iowa, is writing legislation to curb a significant increase in the DOJ's efforts to dismiss whistleblower FCA cases. The Senator says those dismissals run counter to the statute's purpose. Significant amendments made to the FCA in 1986 were intended to “empower whistleblowers,” and the broad leeway many courts are giving the DOJ to dismiss qui tam whistleblower suits without stating a reason undermines those changes, Sen. Grassley said.

Sen. Grassley is the author of the 1986 amendments, which included increasing the share of an FCA recovery owed to the relator – to as much as 30% of the federal share – and providing better protections against retaliation. He is a vocal advocate for whistleblowers and the FCA and an opponent of waste and fraud in government spending more broadly. Sen. Grassley said in a Senate floor speech:

This is not the right approach. If there are serious allegations of fraud against the government, the attorney general should have to state the legitimate reasons for deciding not to pursue them in court. That's just common sense.

Sen. Grassley's legislation would require that the DOJ state its reasons for seeking to dismiss a whistleblower FCA case and give those relators a chance to weigh in on any proposed dismissal before the court decides.

Sen. Grassley noted that since the 1986 amendments, FCA cases have recovered more than $62 billion. He makes the strong case that the anti-fraud law has “never been more important than it is right now,” given the huge amounts of federal spending to address the COVID-19 pandemic. The crisis “has created new opportunities for fraudsters trying to cheat the government and steal hard-earned taxpayer dollars.”

Sen. Grassley's bill follows a letter he sent to U.S. Attorney General William Barr in September 2019. In that letter he let the AG Know he was concerned about the DOJ's efforts to dismiss qui tam cases for reasons beyond their specific merits, including “vague and at times questionable concerns over prerogatives or limited government resources to handle the cases.”

Source: Law360.com

Teva Said To Have Paid $300 Million Kickbacks Through Copay Groups

Teva Pharmaceuticals USA Inc., according to federal prosecutors, used two copay foundations to funnel more than $300 million in illegal kickbacks to Medicare patients using its multiple sclerosis drug, effectively subsidizing the treatment while steadily boosting its price. The civil lawsuit brought by the U.S. Attorney's office in Massachusetts follows a series of settlements with the two purportedly independent nonprofits and a specialty pharmacy for violations of the federal Anti-Kickback Statute.

The lawsuit, filed on Aug. 18, accuses Teva and its subsidiary, Teva Neuroscience Inc., of violating the False Claims Act (FCA) by coordinating with the nonprofits, the Chronic Disease Fund and The Assistance Fund, and with pharmacy Advanced Care Scripts to cover patient copays for Teva's drug Copaxone. According to the government, the scheme amounted to an end-run around federal requirements for Medicare beneficiaries to pitch in for medications, a system designed to keep a check on health care costs. Government lawyers wrote in the complaint: “Teva left American taxpayers to shoulder the high prices that Teva set for Copaxone, while Teva reaped for itself the resulting profits.”

The two foundations and the pharmacy have already each paid more than $9 million to settle illegal kickback claims. Chronic Disease Fund settled kickback charges for $2 million in October. The Assistance Funds paid $4 million to avoid a lawsuit in November, and Advanced Care Scripts Inc. recently agreed to pay $3.5 million to settle claims it coordinated Teva's donations with the nonprofits.

According to this lawsuit, from 2006 to 2015, Teva boosted the price tag of Copaxone from $17,000 a year to $73,000 a year and steadily increased its payments to the two foundations to cover the higher resulting copays.

Teva recorded $3.2 billion in Copaxone sales in 2015, and Medicare paid more than $1.1 billion of that, the lawsuit said. The government asked the court to order Teva to repay all of the money it received from the kickback scheme. U.S. Attorney Andrew E. Lelling said in a statement:

Teva used ostensibly independent charitable foundations as vehicles to pay hundreds of millions of dollars in kickbacks, all while raising the price of its drug, Copaxone, at a rate over 19 times the rate of inflation.

The government is represented by Evan D. Panich, Gregg Shapiro and Abraham R. George of the Office of the U.S. Attorney for the District of Massachusetts, as well as Andy J. Mao, Douglas Rosenthal and Nelson Wagner of the U.S. Department of Justice's Civil Division. The case is U.S. v. Teva Pharmaceuticals USA Inc., (case number 1:20-cv-11548) in the U.S. District Court for the District of Massachusetts.

Source: Law360.com

Settlements In FCA Cases

There have been several significant settlements in FCA cases recently. The following is a brief summary of two of them.

Oklahoma City Hospital And Physician Group To Pay $72.3 Million To Settle False Claims Act Allegations Involving Improper Payments To Referring Physicians

The Oklahoma Center for Orthopaedic and Multi-Specialty Surgery (OCOM), a specialty hospital in Oklahoma City, Oklahoma, its part-owner and management company, USP OKC, Inc. and USP OKC Manager, Inc. (collectively USP), Southwest Orthopaedic Specialists, PLLC (SOS), an Oklahoma City-based physician group, and two SOS physicians, will pay $72.3 million to resolve claims of improper relationships between OCOM and SOS under the False Claims Act (FCA) and the Oklahoma Medicaid False Claims Act, resulting in the submission of false claims to the Medicare, Medicaid and TRICARE programs.

Offering, paying, soliciting or receiving remuneration to induce referrals of items or services covered by Medicare, Medicaid and other federally funded programs is prohibited under the Anti-Kickback Statute. Further, the Stark Law “prohibits a hospital from billing Medicare for certain services referred by physicians with whom the hospital has an improper financial arrangement, including the payment of compensation that exceeds the fair market value of the services actually provided by the physician and the provision of free or below-market rent and office staff.” Both laws are intended to prevent physicians' medical judgments from being compromised by improper financial incentives rather than being based on the best interests of their patients.

This settlement resolves the claim between 2006 and 2018 OCOM and USP provided improper remuneration to SOS and certain of its physicians in exchange for patient referrals to OCOM in the form of:

  • free or below fair-market value office space, employees and supplies;
  • compensation in excess of fair market value for the services provided by SOS and certain of its physicians;
  • equity buyback provisions and payments for certain SOS physicians that exceeded fair market value; and
  • preferential investment opportunities in connection with the provision of anesthesia services at OCOM.

This conduct resulted in claims submitted for services provided to these illegally referred patients in violation of the False Claims Act and the Oklahoma Medicaid False Claims Act. Additionally, the settlement resolves claims arising out of USP's preferential offering of investment opportunities to physicians at four Texas surgery facilities. Pursuant to the settlement, USP will pay $60.86 million to the United States, $5 million to the State of Oklahoma, and $206,000 to the State of Texas. Also, two of SOs' physicians, Anthony L. Cruse, D.O., and R.J. Langerman, Jr., D.O., will pay $5.7 million to the United States and $495,619 to the State of Oklahoma.

As part of the settlements, OCOM and SOS each agreed to five-year Corporate Integrity Agreements (CIAs) with the U.S. Department of Health and Human Services–Office of Inspector General (HHS-OIG). Under the CIAs, OCOM and SOS are each required to maintain a compliance program and hire an Independent Review Organization to review arrangements executed by or on behalf of their respective entities. They also increase individual accountability by requiring compliance-related certifications from their key executives.

The lawsuit, the basis of the settlement, was filed under the qui tam, or whistleblower, provisions of the False Claims Act. The whistleblower also alleged claims under the Oklahoma Medicaid False Claims Act. The qui tam case is captioned United States ex rel. Allison v. Southwest orthopaedic Specialists, PLLC, et al. No. CIV-16-569 (W.D. Okla.).

Source: U.S. Department of Justice

AbbVie Agrees To $24 Million Settlement With Regulators In Humira Case

AbbVie Inc. has agreed to pay $24 million and reform the marketing of its arthritis drug Humira in California to resolve a state Department of Insurance suit accusing the company of offering kickbacks to physicians and running a misleading “nurse ambassador” program.

California Insurance Commissioner Ricardo Lara said in a statement on Aug. 6 announcing the settlement that AbbVie's alleged practices “egregiously put profits ahead of transparency in patient care.” Commissioner Laura said:

This settlement delivers important reforms to AbbVie's business practices and a substantial monetary recovery that will be used to continue to combat insurance fraud.

The Insurance Department had said AbbVie violated the state's Insurance Frauds Prevention Act by providing free professional goods and services to physicians to reward them for prescribing Humira. In addition, the biopharmaceutical company's Humira Complete Nurse Ambassador program, which matches patients taking the medication with a registered nurse employed by AbbVie, was misleading and interfered with the flow of doctor-patient communications, the department alleged.

While AbbVie continues to deny the allegations, under the agreement, it agreed to a number of significant marketing reforms, including:

  • It will now disclose that its nurse ambassadors are actually paid by the company and not a patient's medical provider.
  • It will also provide patients with U.S. Food and Drug Administration-approved medication guides.
  • Its nurse ambassadors will direct patients to that guide or to their health care providers regarding side effects or safety risks.
  • It will instruct ambassadors not to have patient-specific discussions with health care providers who prescribe Humira.
  • It will also bar its sales representatives from inviting health care providers to off-site business meals unless the providers are part of AbbVie speaker programs.
  • AbbVie employees and nurse ambassadors won’t be permitted to actively participate in conversations between patients and insurance companies.

The Insurance Department started investigating AbbVie in October 2016 after receiving a whistleblower complaint from a Florida nurse who was part of the nurse ambassador program. In September 2018, the department filed a superseding complaint in the nurse's suit. AbbVie is also battling allegations it violated the federal False Claims Act in a suit filed in Illinois federal court.

AbbVie has paid a total of $24 million to the state of California and the whistleblower nurse who reported the wrongful practices. The company is also facing a shareholder suit over the alleged kickback scheme in Delaware federal court. In April, AbbVie's board of directors urged the court to dimiss the shareholder derivative suit over allegedly faulty financial statements, arguing the case should be brought in state court, if at all. AbbVie shareholders voluntarily dismissed a similar suit in Illinois federal court last fall, saying their interests would be preserved through the Delaware action.

The California insurance commissioner is represented by Michael J. Levy of the California Department of Insurance. The case is The State of California v. AbbVie Inc. (case number RG18893169) in the California Superior Court for Alameda County.

Source: Law360.com

The Beasley Allen Whistleblower Litigation Team

Beasley Allen, as previously reported, has a Whistleblower Litigation Team in place. Creating this team was necessary because of the large number of False Claims Act (FCA) claims the firm was handling. Fraud against the federal government, involving many industries in this country, has been and continues to be a huge problem. We expect the amount of fraud against the government to increase greatly during the coming months. Whistleblowers are the key to exposing corporate wrongdoing and government fraud and their role will intensify greatly.

A person who has first-hand knowledge of fraud or other wrongdoing may have a whistleblower case. Before you report suspected fraud or other wrongdoing – before you “blow the whistle” – it is important to make sure you have a valid claim and that you are prepared for what lies ahead. The experienced group of lawyers on our team are dedicated to handling whistleblower cases.

If you are aware of fraud being committed against the federal or state governments, you could be rewarded for reporting the fraud. If you have any questions about whether you qualify as a whistleblower, you can contact one of the lawyers on Beasley Allen's Whistleblower Litigation Team for a free and confidential evaluation of your claim.

The following Beasley Allen lawyers are on the Whistleblower Litigation Team: Larry Golston ( Larry.Golston@beasleyallen.com), Lance Gould ( Lance.Gould@beasleyallen.com), Paul Evans ( Paul.Evans@beasleyallen.com), Leslie Pescia ( Leslie.Pescia@beasleyallen.com), Leon Hampton ( Leon.Hampton@beasleyallen.com), Tyner Helms ( Tyner.Helms@beasleyallen.com) and Lauren Miles ( Lauren.Miles@beasleyallen.com). Dee Miles, who heads up our Consumer Fraud & Commercial Litigation Section, also participates in the whistleblower litigation and works with the Litigation Team. A lawyer on our Whistleblower Litigation Team will be glad to discuss any potential whistleblower claim with you either in person, by email or by phone at 800-898-2034.

PRODUCT LIABILITY UPDATE

Agricultural Industry Must Address High Number Of Youth Fatalities And Injuries

With Fall just around the corner, the agricultural industry is in full swing. Our hard-working farming neighbors are gearing up for harvest and preparing for the cold months to come. Most of these operations depend on young family members and young workers to stay afloat. Unfortunately, these young people are at a higher risk working in an agricultural setting than in almost any other industry.

According to a 2018 study conducted by the National Children's Center for Rural and Agricultural Health and Safety, a child dies in an agriculture-related incident every three days. The leading sources of youth fatalities involve machinery (25%), motor vehicles (17%), and drownings (16%). The agricultural industry is especially harsh on young workers, accounting for almost half of all young worker fatalities and hundreds of injuries every year.

Tractor safety is especially important among young agricultural workers who may not fully appreciate hazards. Tractor deaths and injuries usually occur when the operator falls from the tractor after the tractor tips up or completely overturns. Injury and death caused by tractor falls could be minimized or eliminated if the tractor contained safety devices such as seatbelts, rollbars, deadman switches, and rotary mower guards. Yet, even after decades of research pointing to the necessity of these safety devices, manufacturers are still reluctant to incorporate and promote the use of these devices into their tractor designs.

Until 1985, seatbelts were not installed on tractors as standard equipment. In 1986, the National Safety Council found that less than one-third of tractors were equipped with seatbelts. Even today – almost 30 years after seatbelts became standard – tractor manufacturers are not promoting the use of seatbelts. Many tractor advertisements feature operators who are not using their seatbelts. Despite warnings on tractors suggesting use of seatbelts, operators primarily forego the use of seatbelts in favor of less restriction.

Due to minimal seatbelt usage, it is important that tractor manufacturers incorporate other safety devices, such as deadman switches and rotary mower guards to prevent injury in case of a fall. If an operator is not using a seatbelt, a deadman switch will cut off all power to the tractor once it senses that the operator has left the tractor seat. In addition, a rotary mower guard will minimize injuries from a tractor fall by protecting the occupant from being run over by the trailing mower. When a deadman switch is combined with a mower guard, the occupant is protected from being run over and from being dragged in front of the guard for an extended distance. This minimizes the chances of the occupant's body coming into contact with the rotating mower blade.

Seatbelts alone are not sufficient in protecting tractor occupants from injury and death just as seatbelts alone are not sufficient in protecting car occupants from injury and death. The automobile industry recognizes that passive safety devices, such as airbags, are necessary to protect car occupants from foreseeable accidents because an active safety device, such as a seatbelt, is dependent on the occupant's choice to utilize it.

Tractor manufacturers must also recognize the need for passive safety devices, such as deadman switches and rotary mower guards, that protect the occupant even if the occupant chooses not to protect himself by wearing a seatbelt.

The agricultural industry, and manufacturers in particular, must step up to protect young agricultural workers who are less likely to realize the importance of using a seatbelt or abiding by safety rules. Beasley Allen lawyers have successfully handled many cases involving tractor defects. Contact Cole Portis, who heads up the firm's Personal Injury & Products Liability Section, at Cole.Portis@BeasleyAllen.com for more information.

Source: https://www.marshfieldresearch.org

California Court Rules Amazon Can Be Liable For Defective Goods Sold On Its Marketplace

A California appeals court's decision could soon make it harder for Amazon to avoid responsibility for unsafe products sold on its platform. The California Fourth District Court of Appeals ruled on Aug. 13 that Amazon can be held liable for damages caused by a defective replacement laptop battery that caught fire and caused a woman to suffer third-degree burns. The woman, Angela Bolger, alleges she bought the laptop battery from a third-party seller, Lenoge Technology HK Ltd., on Amazon's marketplace.

The ruling deals a major blow to Amazon, which has for years successfully fought off lawsuits that try to place liability on the company for faulty products sold through its site that cause injury and property damage.

Amazon's sprawling marketplace, which hosts millions of third-party sellers, now accounts for approximately 60% of the company's e-commerce sales. While the marketplace has helped Amazon bring in record revenue, it has also hosted counterfeit, unsafe and even expired goods. The company has previously said it invests hundreds of millions of dollars per year to ensure products sold are safe and compliant. I am not sure how that money, assuming it to be true, was spent.

Amazon has been able to avoid liability in the past saying it's only the conduit between buyers and sellers on its marketplace and that it's not involved in the sourcing or distribution of products sold by third-party sellers. While it's been a successful defense for Amazon in the past that may now change.

The company still faces several ongoing product liability cases in state and federal courts across the country. In the Bolger case, the court ruled that Amazon placed itself in “the chain of distribution” of the faulty laptop battery by, among other things, storing the product in its warehouses, receiving payment and shipping the product, as well as setting “the terms of its relationship” with the third-party seller and demanding “substantial fees on each purchase.” The court said:

Whatever term we use to describe Amazon's role, be it ‘retailer,’ ‘distributor,’ or merely ‘facilitator,’ it was pivotal in bringing the product here to the consumer. Under established principles of strict liability, Amazon should be held liable if a product sold through its website turns out to be defective.

The court said Amazon also can’t be shielded from liability through Section 230 of the Communications Decency Act, a law from the 1990s that protects online platforms from being held responsible for content their users post on their sites.

Source: CNBC.com

Triangle Tube Recalls Gas Boilers After Death Reported

Triangle Tube Co., Inc. recalled about 63,000 gas boilers after a person died from carbon monoxide poisoning. The recall was issued to repair Prestige Solo & Prestige Excellence condensing gas boilers. The problem is that flue gas can escape from the gas boilers if the vent adapter is not securely reattached to the boiler after maintenance or repair. This creates a risk of carbon monoxide poisoning. Triangle Tube has received one report of a person who died from carbon monoxide poisoning in 2016 after a repair where the adapter was not reattached.

Triangle Tube has also received two other reports of the vent tube adapter separating from the recalled boilers, which could allow carbon monoxide to leak out and cause injury or death. The gas boilers were sold to wholesale distributors and installed by independent contractors nationwide from November 2011 through July 2020 for between $3,400 and $9,700. This recall involves 22 models of the Prestige Solo & Prestige Excellence condensing gas boilers for residential and light commercial use. These wall-hung condensing gas boilers are housed in a white metal box.

For more information, call Triangle Tube toll-free at 877-574-5036 from 8 a.m. to 5 p.m. ET Monday through Friday, or online at www.triangletube.com and click on “RECALL INFORMATION.”

THE JUUL LITIGATION

Monterey County Files JUUL Lawsuit

Monterey County, California, has filed a lawsuit against JUUL Labs, Inc. The claims arise out of interference with County operations caused by the vaping epidemic created in part by JUUL's actions in marketing its products to consumers, including directly targeting minors. JUUL's conduct contributed to an increase in youth nicotine addiction across the country, including youth addiction in Monterey County. In addition to seeking injunctive and abatement relief, the County is seeking compensatory damages for financial losses arising out of costs associated with health initiatives, law enforcement, public safety, new legislation and other costs incurred in combating the crisis caused by vaping.

Monterey County is joining other counties, cities and school boards in pursuing claims against JUUL and other Defendants. JUUL's actions in creating and contributing to the youth vaping epidemic caused such entities financial harm due to the increased costs incurred in attempting to stop the spread of youth vaping.

JUUL began marketing its electronic cigarette products in 2015 and dominated the market, ultimately controlling 70% of the market. JUUL's marketing strategy included direct appeal to the youth market, including minors, through social media campaigns. Additionally, JUUL heavily marketed “flavored” JUUL products to appeal to the youth market as cool and less dangerous than tobacco products.

JUUL's marketing campaign resulted in more than 1 million JUUL products being sold between 2015 and 2017. JUUL's marketing contributed to a 97% growth of the electronic cigarette category between June 2017 and June 2018 with a total value of $1.96 billion. According to the National Institute on Drug Abuse, the largest of any substance increase for the past 44 years occurred with a 2018 spike in nicotine vaping, and youth vaping increased by 1.5 million between 2017 and 2018.

Monterey County is represented by the National JUUL Litigation team comprised of the firms of Baron & Budd, P.C.; Beasley, Allen, Crow, Methvin, Portis and Miles, PC; Goza & Honnold, LLC; Panish Shea & Boyle LLP; Wagstaff & Cartmell, LLP; and Walkup, Melodia, Kelly & Schoenberger. Joseph Vanzandt, James Lampkin and Sydney Everett, Beasley Allen lawyers, are on the litigation team. If you need more information, you can contact Joseph at 800-898-2034 or by email at Joseph.Vanzandt@beasleyallen.com. For additional information, you can also visit www.schoolvapingcrisis.com

Source: Businesswire.com

JUUL Applies For FDA Approval

JUUL Labs has submitted a premarket tobacco product application to the U.S. Food and Drug Administration (FDA). This comes more than a month ahead of the Sept. 9 deadline. After years of operating outside of the reach of federal regulators, JUUL and other vape device manufacturers are now required to submit a Premarket Tobacco Product Application (PMTA) to the FDA. The PMTA is to include scientific data showing that the product is appropriate for public consumption.

According to JUUL, it's PMTA includes data from more than 110 studies to provide the FDA with a “scientific foundation” for the risks and benefits of JUUL vape devices. Those studies focus on converting adult smokers of traditional combustible cigarettes to JUUL, along with the company's ability to prevent the “unintended consequences” of youth vaping.

Our readers will recall that the youth vaping phenomenon that JUUL now calls an “unintended consequence” was actually the primary objective of its marketing tactics until the FDA stepped in. Even before the PMTA deadline, the new regulation has successfully rid the market of JUUL's sweet and fruit-flavored pods. JUUL's PMTA seeks approval for only Virginia tobacco and menthol flavored vape products.

The FDA will review JUUL's PMTA to determine whether marketing its products will be “appropriate to protect public health,” according to an FDA spokesperson. That determination involves a risk-benefit assessment that includes consideration of the risk to youth. While it awaits the FDA's decision, JUUL will be able to continue selling its products for up to a year from the deadline date, or until the FDA takes negative action on its application.

Beasley Allen lawyers continue to investigate and file cases on behalf of teenagers who have been injured by JUUL vape products. For more information, contact Sydney Everett or Melissa Prickett, lawyers in our firm's Mass Torts Section, at 800-898-2034, or by email at Sydney.Everett@beasleyallen.com or Melissa.Prickett@beasleyallen.com.

Sources: Law360.com and Reuters

The JUUL Litigation Team

Beasley Allen lawyers Joseph VanZandt, Sydney Everett, James Lampkin, Beau Darley, Soo Seok Yang, and Mass Torts Section Head Andy Birchfield are currently representing a number of individuals who are suing the top U.S. vape maker JUUL for the negative impact its products have had on their lives. These lawyers currently make up our firm's JUUL Litigation Team. Lawsuits have also been filed on behalf of school districts nationwide, which seek to protect students and recover resources spent fighting the vaping epidemic. If you have a potential claim or need more information on JUUL, contact any the lawyers on the team at 800-898-2034 or by email at Joseph.VanZandt@beasleyallen.com, Sydney.Everett@beasleyallen.com, James.Lampkin@beasleyallen.com, Beau.Darley@beasleyallen.com, SooSeok.Yang@beasleyallen.com or Andy.Birchfield@beasleyallen.com.

MASS TORTS LITIGATION

Update On The Zantac Litigation

The Zantac multidistrict litigation (MDL), currently pending in the United States District Court for the Southern District of Florida, overseen by U.S. District Judge Robin L. Rosenberg, continues to make significant strides. This is despite the limitations presented by the COVID-19 pandemic. The parties and the Court are making exciting advances in the handling of MDL litigations. Their actions could spawn a new era in how parties work together to efficiently proceed in multidistrict litigations. Not only is the Court embracing the available technologies with remote hearings, it is working in conjunction with the leadership for both sides to utilize specialized legal platforms to gather and organize data for the benefit of both Plaintiffs and Defendants.

The parties have engaged in a unique system to streamline formal discovery and maintain the integrity of the docket in the massive MDL, which now involves approximately 122 Defendants. On April 2, 2020, the Court entered Pre-Trial Order (PTO) #15 implementing a census program whereby the Plaintiffs are given the opportunity to place their cases on a registry and toll their statute of limitations. PTO #23 was entered on May 27, 2020, to clarify and extend the registry deadlines to coincide with the real-time data collection and submission efforts undertaken by all parties and legal management platforms.

As the science develops and studies are published detailing relative risks for certain suspect cancers some cases currently being accepted for investigation may ultimately be excluded. As the litigation progresses decisions will be made on cancers that have sufficient scientific support to prove causation and survive Daubert challenges. We anticipate the expiration of the registry may coincide with decisions on which cancers may be pursued. This census program keeps the docket free of cases that may ultimately not qualify, but which had to be filed to preserve the statute of limitations.

Not only are Plaintiffs allowed to submit their cases for tolling, the census program has a requirement that to qualify for tolling, each Plaintiff must submit the basic facts of their case to better organize and streamline case management and, later, written discovery. Along with submitting to the tolling provisions, law firms are provided with the opportunity to obtain records and complete census data through the use of specialized litigation management systems. This includes the ability to acquire not only medical records but utilize a source that can retrieve sales detail and receipts through retailer rewards programs. This service is groundbreaking and vital in resolving proof of use issues.

As we previously reported, Frank Woodson, a Beasley Allen lawyer, was recently appointed to the Plaintiffs' Steering Committee of the Zantac MDL. Frank, along with Beasley Allen attorney Lisa Littell Courson and their team, is investigating Zantac cases where the potential client took Zantac for a period of time and was diagnosed with certain cancers. For more information on our current Zantac criteria, contact Beasley Allen lawyers Frank Woodson ( Frank.Woodson@BeasleyAllen.com) or Lisa Littell Courson ( Lisa.Courson@BeasleyAllen.com) by phone at 800-898-2034.

Zantac Manufacturers Face DOJ Investigation Over Cancer Risk

In a related matter, two pharmaceutical manufacturers, Sanofi-Aventis and GlaxoSmithKline (GSK), are both facing U.S. Department of Justice (DOJ) investigations over allegations that the drug Zantac causes cancer. The DOJ's Civil Division and the U.S. Attorney's Office are investigating claims that Sanofi violated the False Claims Act (FCA) by failing to disclose information about the potential presence of N-nitrosodimethylamine (NDMA), which has been linked to cancer. The DOJ has requested documents disclosing Sanofi's application to and communications with the U.S. Food and Drug Administration (FDA).

GSK also received a DOJ investigative demand for more information on Zantac. Like with Sanofi, the DOJ is investigating claims that GlaxoSmithKline violated the False Claims Act. Both Sanofi and GlaxoSmithKline have also been named in a lawsuit by New Mexico Attorney General Hector Balderas. In June, the Attorney General filed suit against Sanofi, GlaxoSmithKline, and other generic drug manufacturers, alleging that they violated the state's Unfair Practices Act, False Advertising Act, and public nuisance and negligence laws.

Beasley Allen lawyers continue to investigate potential claims involving regular Zantac or ranitidine use that may have caused cancer. Consumers who may have been affected can contact Frank Woodson ( Frank.Woodson@beasleyallen.com) or Lisa Courson ( Lisa.Courson@beasleyallen.com) by phone at 800-898-2034 for more information.

Source: Law360.com

Bayer Will Pay $1.6 Billion To Settle Suits Over Essure Contraceptive

Bayer AG has reached a $1.6 billion settlement to end nearly all litigation in the U.S. over claims that its Essure birth control device injured women. The agreement includes litigation consolidated in California as well as in federal court in Pennsylvania. According to Bayer, the settlement resolves about 90% of the nearly 39,000 claims brought by women in the U.S.

In early August, Bayer had said that good progress was being made in settlement talks and that it had set aside nearly $1.5 billion to resolve the Essure cases, as well as other litigation matters. The $1.6 billion settlement covers both resolved and outstanding claims, according to Bayer.

The women in the litigation say that the Essure coils, which are inserted into the fallopian tubes, have caused serious health problems, including the perforation of the uterus and fallopian tubes, abdominal pain, menstrual issues, miscarriages and unintended pregnancies.

Bayer bought the Silicon Valley startup Conceptus Inc., which created the Essure devices, for $1.2 billion in 2013, 11 years after the U.S. Food and Drug Administration (FDA) approved the product. However, in 2015, the FDA convened a safety panel that weighed the risks of using the devices as birth control in response to a surge of complaints the agency received about them.

Shortly afterward, the FDA recommended that Bayer label the devices with “black box” warnings – the agency's strongest safety warnings – and Bayer stopped selling them in 2018. All of the bellwether trials in California and Pennsylvania have been postponed due to the pending settlement.

Fidelma Fitzpatrick, a lawyer with Motley Rice, served as Lead Counsel for the Plaintiffs' Executive Committee in the multidistrict litigation (MDL) in California. She and other co-counsel did a very good job in bringing this matter to a successful conclusion.

Source: Law360.com

New York Appeals Court Affirms Asbestos Verdict

A New York appeals court has ruled that products made by Felt Products Manufacturing caused a woman to develop mesothelioma. The court affirmed the jury's verdict in a suit claiming that the company's products caused the mesothelioma. However, in its Aug. 6 decision, the split court said the award to William E. Robaey, husband of the deceased, Marlena Robaey, deviated from what would be “reasonable compensation” for the claims. The jury award of $12 million for past pain and suffering and $1 million for past loss of consortium was vacated by the ruling.

The appeals court left in place the jury's award of $4 million for future pain and suffering and $250,000 for future loss of consortium. But the Plaintiff must stipulate within 30 days for a reduction of the awards to $5.5 million for past pain and suffering and $650,000 for past loss of consortium. Otherwise, the full awards for those damages will be vacated.

In the case – which names Felt Products Manufacturing Co.'s successor, Federal-Mogul Asbestos Personal Injury Trust, as a Defendant – Marlena Robaey testified that while working with her husband, she had been regularly exposed to visible dust when scraping and grinding engine gaskets made by Felt Products, as well as cleaning the family garage and cleaning her and her husband's dusty clothes.

The experts for the Plaintiff testified that the dust on the gaskets contained several thousand times the “safe” amount of asbestos, and the Defendants' expert conceded the dust contained 50-85% asbestos.

The court wrote that the jury's verdict was based on legally sufficient evidence, saying the jury rationally found that the exposure did not stem from asbestos made, used or sold by several of the companies who settled or were not parties to the suit. The court wrote further:

It was the burden of Federal-Mogul to prove that the dust produced by those settling and non-party tortfeasors' products contained sufficient amounts of asbestos to cause plaintiff's disease, and it was within the jury's province to find that it did not meet that burden.

Alani Golanski, one of the lawyers representing the Plaintiff, calling the decision “excellent,” told Law360:

It aligned with mainstream science in recognizing that, when a worker or product user is exposed to visible dust containing more than 1% asbestos content, then that exposure necessarily creates an ultra-carcinogenic hazard, and must be deemed to have legally contributed to the development of that individual's asbestos-related cancer.

The Plaintiff is represented by Alani Golanski of Weitz & Luxenberg PC. The case is Robaey et al. v. Federal-Mogul Asbestos Personal Injury Trust et al. (case number 190276/13) in the New York Supreme Court, Appellate Division, First Department.

Source: Law360.com

4th Circuit Upholds $33 Million Asbestos Verdict Against Covil

The Court of Appeals for the Fourth Circuit has affirmed a $32.7 million jury verdict in favor of Ann Finch for her husband's asbestos exposure death. The appeals court rejected Covil Corp.'s argument that the award was unreasonably high and elicited through inflammatory arguments. A three-judge panel found no fault in the trial court's “careful jury instructions or its well-reasoned rationale” in refusing to reduce the verdict against the insulation companies, noting uncontested evidence that Franklin Finch died an extremely painful death due to asbestos exposure at a Firestone tire factory. The panel, in an opinion written by U.S. Circuit Judge Diana Gribbon Motz, said:

We are struck by the lack of any inflammatory argument by Mrs. Finch's counsel, the absence of any contrary evidence on many now contested issues, and the district court's care throughout the trial and post-trial proceedings, including its thoughtful consideration of, and ultimate rationale for rejecting, Covil's attack on the size of the damages award

Franklin Finch worked in a Firestone tire curing room. He was regularly exposed to a “sandstorm” of asbestos-containing insulation fibers over the 20 years he worked at the plant. He was diagnosed with mesothelioma in 2016 and had 28 pounds of cancer and organs, including his colon and spleen, removed before his death the next year.

Ann Finch sued in North Carolina federal court in 2016, alleging Covil negligently supplied asbestos-laden steam pipe insulation that caused her husband's death. Other corporate Defendants settled prior to the trial. The jury awarded Mrs. Finch $32.7 million in compensatory damages at the conclusion of the trial in 2018. Covil, which went out of business in 1991, moved to overturn or reduce the verdict. The trial court denied the motion.

The appeals panel also rejected Covil's argument that the damages award was speculative, citing the magnitude of Finch's pain and suffering and “compelling and uncontradicted” evidence that the decedent had a deep and loving relationship with his family. The panel said:

Without evidence of passion or prejudice, we cannot replace the jury's considered judgment with our own, or with an amount that Covil would prefer.

Ann Finch is represented by Lisa W. Shirley of Dean Omar Branham Shirley LLP and William M. Graham of Wallace & Graham PA. The case is Ann Finch v. Covil Corp., (case number 19-1594) in the U.S Court of Appeals for the Fourth Circuit.

Source: Law360.com

SECURITIES LITIGATION

Supreme Court's Liu Decision On SEC Disgorgement Authority Could Have Broad Implications

Federal securities laws authorize the U.S. Securities and Exchange Commission (SEC) to seek “equitable relief” in civil enforcement actions. It frequently uses this authority for two reasons: (1) to ensure Defendants don’t profit from committing securities fraud and (2) to deter individuals from committing such frauds to begin with. Normally, the SEC seeks to disgorge the total sum taken in from investors over the course of the fraud. In 2017 the Supreme Court issued a ruling in Kokesh v. SEC, which held that a disgorgement order in an SEC enforcement action constitutes a “penalty” for purposes of application of the statute of limitations.

The Kokesh Court did not address, however, whether disgorgement can qualify as “equitable relief,” given that equity has historically excluded punitive sanctions. Earlier this year, in March, the Supreme Court heard oral arguments in Liu v. SEC. On June 22 the Court handed down an 8-1 opinion, which imposes new limits on disgorgement relief the SEC often seeks in enforcement actions. Beyond this direct impact, the reasoning in the case is already showing it could have implications that reach beyond SEC enforcement actions.

In 2018, the SEC brought a civil enforcement action in the Central District of California against spouses Charles Liu and Xin Wang for violations of the Securities Act of 1933. The SEC alleged that Liu and Wang collected $27 million from Chinese investors through the EB-5 Immigrant Investor Program that was supposed to fund the construction and operation of a cancer treatment center. The center was never built, but the couple paid themselves $8.2 million in salary and paid $12.9 million to a marketing firm to solicit new investors.

The court found for the SEC and, among other relief, held defendants jointly and severally liable to pay civil penalties of $8.2 million and disgorgement equal to the full amount Defendants had raised from investors, minus returns received – more than $26 million. Both the penalty and disgorgement were awarded payable to the SEC. Liu and Wang appealed the disgorgement award, claiming it was too high because it included funds they said were spent on “business expenses,” including the $12.9 million paid to the marketing firm. They also claimed that joint and several liability and payment to the SEC instead of investors was improper.

The Supreme Court disagreed with the trial court, and held that any disgorgement sought by the SEC must be limited to the defendant's net profit from wrongdoing, after legitimate business expenses are subtracted. Any award beyond the profit is punitive and therefore not allowed at equity. The opinion noted, however, that some businesses that are solely created to perpetrate frauds may have no legitimate expenses. The Court further held that Defendants working in concert could be held jointly and severally liable, and that any sums sought as disgorgement must be payable to the investors in the scheme, not to the SEC, if those investors could be identified. The Court noted that the Kokesh ruling was based upon an award that exceeded these guidelines, which made it a “penalty.”

The ruling reins in the way the SEC seeks disgorgement penalties in cases. Many times, victims are difficult to identify in securities cases, like insider trading. However, it also could alleviate limitations on the SEC from the Kokesh decision. The Kokesh award was held to be a penalty because the disgorgement went beyond what was held permissible in Liu. If future disgorgement awards comply with the Liu decision, arguably they will not be subject to the limitations imposed by Kokesh.

The decision could also affect the SEC's whistleblower program. Traditionally, some of the disgorgement awards from enforcement actions that were retained by the SEC went into a fund that is used to pay whistleblower awards. If those awards cannot be sought unless specifically for victim investors, that source of funding could dry up.

There could be implications in other areas of law as well. A line of cases looking at the Employee Retirement Income Security Act of 1974 (ERISA) have held that the statutory structure of ERISA prevents an injured worker from pursuing a breach of fiduciary duty claim that addresses the same conduct remedied by a claim for denial of benefits, unless the injury is separate and distinct from the denial of benefits. Since both ERISA and the Securities Exchange Act permit “appropriate” equitable relief, a claimant could now seek more than merely reimbursement of denied benefits. In the case of participants denied benefits to which they are entitled under ERISA, beyond the cost of those benefits they could also seek disgorgement of the net profit earned by the plan sponsor through use of those wrongfully held funds.

If you need more information, or would like to discuss a potential claim, contact James Eubank, a lawyer in our firm's Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at James.Eubank@beasleyallen.com. James handles securities litigation for Beasley Allen.

INSURANCE INDUSTRY LITIGATION

JPML Declines Centralization Of Industry-Wide Business Interruption Insurance Claims But Directs Issuance Of Show Cause Orders Regarding Insurer-Specific MDLs

On July 30, the Judicial Panel on Multidistrict Litigation (JPML) heard argument regarding consolidation of business interruption insurance in the wake of COVID-19-related closures. More than 275 cases were noticed as related actions, pending in 48 districts and involving more than 100 insurers.

Business interruption insurance is typically part of a business owner's commercial property coverage, or may be a stand-alone policy. Regardless, business interruption insurance helps a business cover bills and payroll in the event of a disaster that forces the business to temporarily close. Because many business owners have been required to close as a result of the COVID-19 threat, many are turning to their insurance policies to determine if business interruption coverage may provide them some relief and have filed cases seeking declaratory judgment or relief for alleged breach of contract for denials of coverages.

Due to the volume of these cases, the consolidation of such cases in multidistrict litigation (MDL) was proposed in late April. Plaintiffs in more than 175 actions responded to the two motions for consolidation. Many Plaintiffs support centralization in one of the two districts proposed by the movants – either the Eastern District of Pennsylvania or the Northern District of Illinois. Some proposed centralization in a myriad of other districts, while others opposed centralization or asked to be excluded from any MDL. Thirty-two insurers or insurer-groups are named as Defendants in the related actions, and all uniformly opposed centralization, as well as several amici curiae.

The hearing on consolidation was conducted via Zoom and had more than 440 people listening in on an audio-only phone line. Plaintiffs' lawyers presented the panel with a variety of options, including a single nationwide centralization of all actions, multiple MDLs or multiple tracks within an MDL, and specifically an MDL against three carriers – Cincinnati, Llloyds, and the Hartford – that have each been named in multiple suits. The judges had tough questions about all of the proposals – including the insurance industry's suggestion that the panel simply allow individual judges to decide the cases before them.

While the JPML did not clearly indicate which way it was leaning at the hearing, it issued an order on Aug. 12, 2020, denying transfer and directing the issuances of show cause orders to four individual insurers. Noting the fact that the cases involve more than 100 insurers and a wide variety of different policy forms, the JPML concluded that an “industry-wide MDL in this instance will not promote a quick resolution of these matters.” It went on to state “the MDL that movants request entails very few common questions of fact, which are outweighed by the substantial convenience and efficiency challenges posed by managing a litigation involving the entire insurance industry.”

It's significant that the JPML signaled it may still be open to the creation of smaller MDLs to centralize actions against specific insurers facing high volumes of cases. Because proposals for insurer-specific MDLs were made midway through the briefing on the industry-wide motions, and no motion for an insurer-specific MDL was filed, the Panel has required further briefing to understand the factual commonalities and differences among these actions, as well as the efficiencies that may or may not be gained through centralization.

Specifically, the Panel directed The Hartford, Cincinnati Insurance Co., Certain Underwriters at Lloyd's of London, and Society Insurance Co. to show cause why those actions should not be centralized. The Panel explained: “With respect to these four insurers or insurer groups, centralization may be warranted to eliminate duplicative discovery and pretrial practice.” These matters are set for consideration by the Panel at its hearing scheduled for Sept. 24, 2020. We do not have the information from that hearing at press time.

Lawyers in our firm's Consumer Fraud & Commercial Litigation Section are actively investigating and filing claims against various insurance companies for denial of business interruption coverage during the COVID-19 pandemic, and are involved in advocating for consolidation of these actions in an MDL. Dee Miles, head of the Section, Rachel Boyd and Paul Evans are spearheading this litigation for our firm and monitoring any MDL developments that arise. You can contact them at 800-898-2034 or by email at Dee.Miles@beasleyallen.com, Rachel.Boyd@beasleyallen.com or Paul.Evans@beasleyallen.com if you have any questions or would like to discuss potential claims.

Sources: Reuters, Law360 and Order denying transfer and directing issuance of show cause orders, In re: Covid-19 Business Interruption Ins. Litig., MDL No. 2942 (Aug. 12, 2020)

Missouri Restaurants Allowed To Pursue COVID-19 Coverage Suit

A Missouri federal judge has allowed a group of hair salons and restaurants to proceed with a proposed class action claiming Cincinnati Insurance Co. wrongfully refused to cover their losses during COVID-19 shutdowns, holding on Aug. 12 that the businesses adequately alleged they suffered a covered “direct physical loss.”

U.S. District Judge Stephen R. Bough denied Cincinnati's motion to dismiss, permitting the group of five business owners to continue pursuing coverage under multiple prongs of their “all-risk” policies with the insurer, which do not contain a common exclusion for virus-related losses. The ruling marked the first known instance of a policyholder's COVID-19 coverage suit surviving a dismissal bid.

Critically, Judge Bough rejected Cincinnati's assertion that the policies' core requirement of direct physical loss or damage to property can be satisfied only by an “actual, tangible, permanent, physical alteration,” which, according to the insurer, does not occur even if COVID-19 is present in a building. The district judge said Cincinnati's position conflates “loss” and “damage,” when in fact the terms have distinct meanings. Since the policies do not define either term, Judge Bough turned to the dictionary definition of loss: the “act of losing possession” or “deprivation.”

Applying that definition, the judge held that the businesses' amended complaint sufficiently alleged a direct physical loss because they claimed the presence of COVID-19 on their premises hobbled their operations. Judge Bough wrote:

COVID-19 allegedly attached to and deprived plaintiffs of their property, making it ‘unsafe and unusable, resulting in direct physical loss to the premises and property. Based on these allegations, the amended complaint plausibly alleges a ‘direct physical loss’ based on ‘the plain and ordinary meaning of the phrase.’

The business owners – including the operator of two hair salons in Springfield, Missouri, and four proprietors of restaurants in the Kansas City area – initially filed their putative class action against Cincinnati in Missouri federal court in late April. An amended complaint was added in early June. They are seeking to represent both a nationwide class and a Missouri subclass of Cincinnati policyholders that have been denied coverage for losses tied to government stay-at-home orders.

Cincinnati filed its motion to dismiss in late June, asserting that coverage for the businesses' losses is unavailable under any of five policy sections cited in the amended complaint, including the heavily litigated “business income” and “civil authority” coverage provisions.

All five prongs require the existence of direct physical loss or damage, either to the policyholder's property or to a nearby property. The business income provision, for example, extends coverage for the policyholder's loss of income due to a suspension of operations caused by direct physical loss or damage to its own property.

In his order, Judge Bough said the business owners plausibly claimed they have suffered a direct physical loss under the business income provision through their allegations that employees, customers or other visitors are likely to have brought COVID-19 onto their premises. He rejected Cincinnati's contention that a ruling adopting the businesses' interpretation of the term “loss” would result in a finding of direct physical loss whenever a business suffers economic harm. Judge Bough wrote:

That is not what the court holds here. Although plaintiffs allege economic harm, that harm is tethered to their alleged physical loss caused by COVID-19 and the closure orders.

The judge then turned to the civil authority provision, which provides coverage for losses the policyholder suffers when it is unable to access its property due to an order issued by an authority, such as a government agency. That provision specifies that the government order must result from direct physical loss or damage to a property within a certain distance of the policyholder's.

Judge Bough said the business owners sufficiently alleged that civil authority coverage applies because Missouri's stay-at-home orders stemmed from the likely presence of COVID-19 at nearby properties. Cincinnati had also argued that civil authority coverage is unavailable because the stay-at-home orders did not fully bar the business owners from accessing their premises. But Judge Bough pointed out that the policies do not state that a civil authority order must prohibit “all access” or “any access” to a policyholder's property.

In this case, the judge said, the business owners' complaint alleged the stay-at-home orders hindered access to their properties because they required hair salons to temporarily cease all operations and limited restaurants to takeout, delivery and drive-thru services. Judge Bough wrote:

At the motion to dismiss stage, these allegations plausibly allege that access was prohibited to such a degree as to trigger the civil authority coverage. Discovery will shed light on the merits of plaintiffs' allegations, including the nature and extent of COVID-19 on their premises. In addition, the court emphasizes that all rulings herein are subject to further review following discovery. Subsequent case law in the COVID-19 context, construing similar insurance provisions, and under similar facts, may be persuasive.

The businesses are represented by Brandon J.B. Boulware and Jeremy M. Suhr of Boulware Law LLC, Todd Johnson of Votava Nantz & Johnson LLC and Thomas A. Rottinghaus, Tyler W. Hudson and Jack T. Hyde of Wagstaff & Cartmell LLP. The case is Studio 417 Inc. et al. v. The Cincinnati Insurance Co. (case number 6:20-cv-03127) in the U.S. District Court for the Western District of Missouri.

Source: Law360.com

CONSUMER MONEY MATTERS

Wells Fargo Accused Of Fraudulently ‘Correcting’ Loan Dates

A proposed class action lawsuit has been filed in a Florida federal court against Wells Fargo, alleging the bank fraudulently changed the maturity dates on thousands of mortgages that secured home equity loans without informing its customers. It's alleged that this damaged the value and marketability of their homes.

According to the complaint filed by Florida residents Philip and Ingrid Tippett, Wells Fargo Bank NA committed the allegedly fraudulent actions after realizing it had made a critical error by failing to set these second mortgages to terminate after the final maturity date for the loans.

Allowing the original dates to stand would have left the debts unsecured and the bank exposed to an increased risk of nonpayment. But rather than inform its customers, Wells Fargo unilaterally filed documents titled “affidavit of correction” in the counties where the borrowers lived, purporting to “correct” the maturity dates on the mortgages to match the home equity loans.

The suit claims Wells Fargo's actions clouded the titles to its borrowers' homes and damaged the properties' value and marketability. The suit also claims the affidavits of correction were fraudulent instruments that subject the bank to criminal liability, citing state laws in California, Colorado, Florida, Michigan and Pennsylvania as examples.

In their complaint, the Tippetts are asking the district court to issue a ruling that the affidavits of correction are void and of no effect, order Wells Fargo to withdraw the filings, and enjoin the bank from filing similar affidavits in the future. They are seeking to bring the claims on behalf of a nationwide class of borrowers who obtained home equity line of credit loans from Wells Fargo that gave them access to a revolving line of credit secured by a second mortgage and who had one of these affidavits of correction recorded that purported to change the terms of the second mortgage.

The Tippetts also seek to form a subclass of Florida residents so they can seek injunctive relief for the bank's alleged violation of state law. The complaint estimates that the nationwide class would cover thousands of potential members and the Florida subclass would number at least in the hundreds.

The Tippetts are represented by Benjamin J. Widlanski, Rachel Sullivan and Robert J. Neary of Kozyak Tropin & Throckmorton LLP and George Franjola of Law Office of George Franjola. The case is Tippett et al. v. Wells Fargo Bank NA, (case number 5:20-cv-00342) in the U.S. District Court for the Middle District of Florida.

Source: Law360.com

Consumer Lender Will Pay SEC $21.7 Million To End FCPA Investigation

Consumer lender World Acceptance Corp. will pay $21.7 million to settle a U.S. Securities and Exchange Commission (SEC) investigation into the alleged bribery of government officials and union officials in Mexico. The SEC has found that the lender's former Mexican subsidiary paid approximately $4.1 million in bribes between December 2010 and June 2017 in order to keep one of its business lines running smoothly. While the company denied the findings, it is paying a huge amount to settle the matter.

The order approving the settlement says the lender brought in roughly $18 million as a result of the bribery scheme and allowed the alleged violations of the Foreign Corrupt Practices Act (FCPA) to continue unabated for many years. Charles E. Cain, chief of the SEC enforcement division's FCPA unit, said in a statement:

This long-running bribe scheme did not happen in a vacuum. Through a lack of adequate internal accounting controls and a culture that undermined its internal audit and compliance functions, World Acceptance Corporation created the perfect environment for illicit activity to occur for nearly a decade.

As part of the settlement agreement, World Acceptance will disgorge nearly $18 million, along with $1.9 million in interest, and pay a $2 million penalty.

The SEC is represented by its own Jennifer T. Calabrese. The case is In the Matter of World Acceptance Corporation, (case number 3-19905) before the Securities and Exchange Commission.

Source: Law360.com

EMPLOYMENT AND FLSA LITIGATION

U.S. Supreme Court To Address Major TCPA Issue

The U.S. Supreme Court granted certiorari in Duguid v. Facebook to decide, once and for all, whether an automatic telephone dialing system (ATDS), as the Telephone Consumer Protection Act (TCPA) defines the phrase, requires random or sequential number generation. The case will be argued before the Court in the October 2020 Term.

The TCPA is a federal consumer protection statute relating to telephone communications. The law has been on the books for nearly three decades, inspired by the early auto-dialing equipment and the barrage of consumer complaints those robocalls triggered. A robocall is a phone call that uses a computerized autodialer to deliver a pre-recorded message, as if from a robot.

To prevail on a TCPA claim, the Plaintiff must prove that the robocall was made using an automatic telephone dialing system, also known as an autodialer or ATDS. Federal courts have vigorously disagreed over the meaning of the opaque term ATDS. But no uniform interpretation of ATDS has prevailed and the Supreme Court has not weighed in on the topic. That is about to change.

The Supreme Court is poised to resolve the circuit split on whether the TCPA's definition of an ATDS encompasses any device that can store and automatically dial telephone numbers, even if the device does not use a random or sequential number generator. Some courts of appeals have adopted a narrow interpretation of ATDS and concluded that the answer is “no.” These courts held that if the dialing equipment cannot randomly or sequentially generate numbers, it is not an autodialer under the TCPA. In contrast, other courts of appeals held that all equipment with the capacity to store telephone numbers to be called and to dial those numbers automatically qualifies as an autodialer.

Today, the vast majority of robocalls and mass texting campaigns are made to a targeted, prepopulated set of cellphone numbers, usually customers or client leads. The TCPA's definition of ATDS fails to account for technological advances that enable robocalling to a nonrandom list of intended recipients. If the Supreme Court adopts a narrow definition of ATDS, it could result in the further proliferation of robocalls that fall outside the TCPA's restrictions.

If you have any questions, contact Lance Gould or Larry Golston, lawyers in our firm's Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at Lance.Gould@beasleyallen.com or Larry.Golston@beasleyallen.com. They handle employment litigation for the firm.

Source: Law360.com

Some Recent Settlements

Even with the problems created by the pandemic, there has still been a great deal of activity in the area of employment law. The following are some settlements of interest.

Burlington Coat Factory To Pay $20 Million To Settle Two FLSA Suits

Burlington Coat Factory has agreed to pay nearly $20 million to resolve both a collective action and a putative class action from assistant store managers alleging they were misclassified as exempt employees and stiffed on overtime wages. A request for approval of the settlement was filed in New Jersey federal court. The $19.6 million deal represents an average gross amount of $12,003 for each of the 539 collective members and 1,095 settlement class members, the assistant managers said in their unopposed motion to obtain approval of the settlement. If approved, it would resolve one suit filed in 2011 and another filed in 2014.

The 2011 Suit

The Plaintiffs called the payout an “excellent” result for any Fair Labor Standards Act (FLSA) or misclassification case. Filed in July 2011, the first suit claims the discount apparel retailer has a practice of misclassifying its assistant store managers as exempt from overtime wages, even though they perform nonexempt duties, including building displays, stocking shelves, assisting customers, scanning prices, cleaning the store, unloading trucks and more.

Lead Plaintiff Steven Goodman says he worked as an assistant store manager at Burlington Coat Factory locations in Florida from 2005 to 2010 and regularly worked more than 40 hours a week without receiving overtime pay. “The work performed by plaintiff required little skill and no capital investment. His duties did not principally include managerial responsibilities or the exercise of independent judgment. Rather, they involved many nonmanagerial duties identical to those performed by nonexempt employees entitled to overtime,” the complaint said. The Plaintiff said in the complaint that he wanted to prosecute his FLSA claims as a collective action on behalf of all people who are or were formerly employed as assistant store managers by the retailer between July 2008 and the entry of judgment in the case.

Plaintiffs in the 2011 suit got the green light for conditional collective certification in 2012, but the retailer argued the collective action should be decertified, saying depositions and other evidence show duties performed by the assistant store managers varied significantly from one employee to the next, saying the Plaintiffs have failed to show they are “similarly situated,” as required for such actions.

The 2014 Suit

The 2014 suit also alleges that the nationwide retailer routinely requires its assistant store managers to work more than 40 hours each week in order to complete nonexempt tasks while improperly classifying them as exempt from overtime wages. “Defendants' failure to pay overtime wages for work performed by plaintiffs … in excess of 40 hours per workweek was willful and has been widespread, repeated and consistent,” the complaint said.

Filed on behalf of assistant store managers in New York, California and Illinois, the three lead Plaintiffs in that suit – Barbara Kawa, Theresa Massey and Danielle Solecki – say their positions with the North Burlington, N.J.-based retailer regularly called for them to work overtime hours. The retailer classifies its assistant store managers, including operations, merchandise and customer service logistics managers, and other salaried employees with similar positions, as exempt employees as part of a “centralized, companywide policy” to minimize labor costs, according to the complaint.

The workers are represented by Seth R. Lesser, Jeffrey A. Klafter and Christopher Timmel of Klafter Olsen & Lesser LLP, Michael Leh and Neel D. Bhuta of Locks Law Firm LLC and Erik Kahn, Michael A. Galpern and Zachary Green of Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins PC.

The cases are Goodman et al. v. Burlington Coat Factory Warehouse Corp. et al., case number 1:11-cv-04395, and Kawa et al. v. Burlington Stores Inc. et al. (case number 1:14-cv-02787) both in the U.S. District Court for the District of New Jersey.

Source: Law360.com

TRW To Pay $30.2 Million To Settle Auto And Steel Workers' Health Care Benefits Litigation

TRW Automotive Holdings Corp. will pay $30.2 million to settle a dispute over health care benefits for retired auto and steel union workers. A request for initial approval of the settlement was filed on Aug. 14 in a Michigan federal court. The proposed agreement would require TRW over the next decade to pay the eight-figure sum in installments into a trust known as a voluntary employee benefits association (VEBA) with the extent of the coverage to be determined by a board of trustees. The trust is expected to cover about 230 people. The request for approval stated:

The new VEBA is to be associated with an existing VEBA that has been providing health care to three other groups of formerly union-represented industrial retirees and their dependents. Association with the existing VEBA is expected to provide the new VEBA with experience, efficiencies, and economies of scale.

The nearly decade-old dispute stretches back to the shuttering of two factories in southeastern Michigan. The auto workers and the steel workers filed two separate class actions in 2011, alleging planned changes to health care plans for some retirees breached collective bargaining agreements in violation of the Labor-Management Relations Act and Employee Retirement Income Security Act (ERISA).

TRW lost both cases, and appealed in each case to the Sixth Circuit. The auto workers' case reached the U.S. Supreme Court in 2017, with arguments centering on whether high court precedent required durational clauses in a contract to explicitly state whether they apply to retiree benefits. The justices sent that case back to the Sixth Circuit in 2018, and the auto and steel workers' cases were joined for mediation. Ultimately, the suits were consolidated for the purpose of the settlement.

The Plaintiffs are represented by William Wertheimer of the Law Office of William Wertheimer and by Stuart M. Israel and John G. Adam of Legghio & Israel PC. The case is International Union, United Automobile, Aerospace and Agricultural Implement Workers of America et al. v. TRW Inc. (case number 2:11-cv-14434) in the U.S. District Court for the Eastern District of Michigan.

Source: Law360.com

PREMISES LIABILITY LITIGATION

Sexual Predators And Those That Harbor Them Must Be Brought To Justice

Lawyers at Beasley Allen are working tirelessly on behalf of victims who have suffered serious injuries and on behalf of families who have lost family members as a result of an establishment's poor maintenance and security. Many of these cases involve apartment complexes and other establishments that have had crime problems related to poor security. But, of all the cases, perhaps the most disturbing ones our lawyers see are those involving sexual violence. Sexual violence remains a serious social problem with catastrophic consequences.

While a victim may be told by an establishment that the sex predator never showed signs that they would do such a thing, almost every time, we find the opposite to be true. In fact, it is rare that a sex predator is caught the first time they attempt sexual violence. Instead, a close investigation usually shows numerous warning signs and multiple victims in a sex predator's wake leading up to that person being caught.

The challenge of “making society safer” requires a comprehensive understanding of sex predator patterns. Studies show that sex predators victimize the vulnerable, and especially those who they have close access to. For instance, in many child sexual abuse cases, the abuse is preceded by sexual grooming. Sexual grooming is defined as a preparatory process in which a perpetrator gradually gains a person's or organization's trust with the intent to be sexually abusive. The victim is normally a child, teen, or vulnerable adult. Grooming can involve an offender going to great lengths to build trust with a child and the child's adults to gain access to and time alone with her/him.

Most child sex predators victimize those they know and who they have established a relationship with. In a very similar way, adult women often find they are the victims of “confidence rapes,” where the offender knows the victim and uses that familiarity to gain access and trust with her.

In many cases, sex predators use power differentials to create some type of vulnerability, as in doctor-patient, professor-student, counselor-camper relationships, and so on. For example, hospitalized patients tend to be particularly vulnerable because they are in a weakened fragile state. Elderly patients suffering from dementia or some other altered state are particularly vulnerable. As a result, hospital sexual assault involves the most fragile circumstances. Surveys suggest that, as it relates to children, child sexual abuse incidents in daycare centers, foster care homes, and schools range from 1% to 7%.

As sexual assault cases continue to grow in schools, hospitals, the workplace, and even places of worship, it is important for employers to acknowledge their responsibility to keep their employees and their customers safe from this type of violence. Employers must be knowledgeable about the warning signs of sexual violence or the potential for sexual violence. They must put training, hiring and reporting policies and procedures in place. In addition, they must act swiftly to investigate and handle any instance or perceived instance of sexual abuse. An employer or business can be held liable if it knew or should have known about sexual violence or the potential for it and did nothing. Understandably, significant monetary damages are not uncommon in these cases.

Our lawyers are investigating any cases involving sexual violence. If you have any questions about these cases, or have a potential case, contact Parker Miller or Donovan Potter, lawyers in our Atlanta Office, at Parker.Miller@beasleyallen.com and Donovan.Potter@beasleyallen.com, or by phone at 800.898.2034. They handle premises' lability litigation for the firm.

Sources: sdcda.org, parentsformeganslaw.org, plaintiffmagazine.com, smart.ojp.gov, americanbar.org and nsvrc.org

115 People Injured On Water Slide That Paralyzed Tourist At Universal's Volcano Bay

A lawsuit has been filed by James Bowen, a New York tourist who was paralyzed in an incident last year at Universal's Volcano Bay. Guests ride slides down four lanes through underwater sea caves on the attraction, Punga Racers. Since the water park opened in 2017, more than 100 people have reported injuries on the water slide that paralyzed Mr. Bowen in October of last year.

Previous Incidents

At least 115 visitors have reported injuries on the very same water slide that paralyzed a New York tourist last year at Universal Orlando's Volcano Bay, according to court records from the injured tourist's lawsuit.

Some guests suffered scrapes or nosebleeds on Punga Racers, while other injuries were more severe, including a concussion or neck whiplash, as people rode head-first on mats down four flumes into catch pools. It wasn’t just visitors who got hurt; two ride safety testers were injured as well.

Under Florida law, large theme parks are only required to report to the state ride injuries where visitors are hospitalized for at least 24 hours.

The Bowen Incident

James Bowen's neck snapped back violently when he went through a wave of water at the end of the ride. It paralyzed him, and he lay face down in the shallow catch pool momentarily until his wife and Universal employees rescued him.

Documents in Bowen's lawsuit include internal Universal messages raising concerns, reports from ProSlide Technology, which built the ride, and two Universal spreadsheets that list visitor injuries on Punga Racers over 13 months, primarily in 2017 and 2019.

Major theme parks such as Universal and Disney, which handle their own ride inspections, operate largely out of the public's view when it comes to safety. Punga had been open for about five months when ProSlide modified the ride in fall 2017, making adjustments that included extending the two outer lanes to help slow down the riders, according to a company report in the court file. There are other internal documents that are not good for Universal.

The major theme parks file injuries with the Florida Department of Agriculture and Consumer Services, which releases a report every three months on visitors who were hurt or get sick on rides.

Mr. Bowen, a married father of three, had worked as Squarespace's work place services director before his injury. According to his lawsuit, he underwent extensive therapy and was relearning how to walk short distances on crutches when his suit was filed last year.

Source: Orlando Sentinel

WORKPLACE HAZARDS

Beasley Allen Sues Phenix Lumber Co. For Family Of Worker Killed In Plant's Wood Chipper

The family of a man who was killed after being caught in a wood chipper in a Russell County workplace accident in May has filed suit against the lumber company where he was employed. The family of Brandon Lee VanDyke is suing MDLG, Inc., doing business as Phenix Lumber Co.

The wrongdoing by Phenix Lumber Co. caused the death of the worker who was killed when he was pulled into the wood chipper while attempting to fix the malfunctioning equipment. Kendall Dunson, a lawyer in our firm's Personal Injury & Products Liability Section, is representing the family. He says:

The Defendant is a repeat offender with safety violations that risked the safety of employees countless times before Mr. VanDyke's tragic death. This worker was at least the second fatal victim at the defendant's mill in the last decade. Despite numerous citations and hefty fines by federal regulators, Phenix Lumber continues putting workers at risk. Mr. VanDyke's family has enlisted our firm to help them hold Phenix Lumber accountable.

In the early morning hours of May 28, Phenix Lumber's auger or wood chipper set off an alarm indicating it had become jammed. VanDyke became entangled in the machine when he was working to get the chipper operational. When local authorities were called to the scene, they only found partial remains of the worker's body. Phenix City inspectors found more than 100 safety violations while conducting an initial investigation later on the morning of the worker's death. The mill has been cited for health and safety problems on numerous occasions dating back to at least to 2007.

From 2007 to 2010, the mill was cited 77 times for serious health and safety violations. In March 2010, an employee was killed and one was injured as a result of safety violations. The Department of Labor's Occupational Safety and Health Administration (OSHA) was in the process of wrapping up an ongoing investigation of the Defendant's previous safety violations when the incidents occurred. Later that year it was fined $439,400 and OSHA issued two failure-to-abate, 11 repeat, 21 serious and 10 other-than-serious safety and health citations for other violations.

Another incident in early 2011 led to another employee suffering a partial amputation while clearing a piece of machinery that had not been locked out. Another employee had just suffered a severe hand injury while working on unguarded machinery.

While OSHA inspectors were investigating the partial amputation injury, another employee suffered a severe hand injury while working on unguarded machinery.

At the conclusion of the investigation of the 2011 incidents, OSHA fined the saw mill and its owner, John M. Dudley, $1.9 million for “willful disregard for employee safety.” The federal regulators determined that the company repeatedly failed to protect its workers from death and serious injury.

The family's lawsuit also seeks to hold the machine's manufacturer responsible for the defective design that “created an unreasonable risk of injury and death to the intended users.” If you need more information, contact Kendall Dunson, a lawyer in our Personal Injury & Products Liability Section, at 800-898-2034 or by email at Kendall.Dunson@beasleyallen.com. Kendall handles litigation involving workplace injuries and death for the firm.

The case was filed in the Circuit Court of Russell County, Alabama, (case number 57-CV-2020-900171.00).

AN UPDATE ON MOTOR VEHICLE LITIGATION

VW Turned Away In Bid To Shut Down County Anti-Tampering Lawsuits

On Aug. 24 the Court of Appeals for the Ninth Circuit denied Volkswagen Group's bid to shut down lawsuits accusing the auto manufacturer of violating two counties' anti-tampering rules. In June, the court ruled the Clean Air Act does not prevent The Environmental Protection Commission of Hillsboro County, Florida, and Salt Lake County from enforcing their rules prohibiting tampering with emission control standards of “post-sale vehicles.” The ruling revived the counties' claims against Volkswagen.

Volkswagen appealed to the court to revisit its decision in this litigation and filed for a reconsideration hearing. The three-judge panel denied the request. The decision was unanimous. Dee Miles, lead counsel for the Hillsborough County (Tampa Bay area), Florida action, and head of Beasley Allen's Consumer Fraud & Commercial Litigation Section, had this to say about the important result:

We expected that the entire court would agree with the panel's initial decision on this important issue and we are very pleased with the full Court's ruling that the panel's ruling was correct. We look forward to moving forward with our claims.

Volkswagen admitted to installing a “cheat” device on certain types of its vehicles, while promoting them as “clean diesel” alternatives to hybrid and electric vehicles. The defeat device enables the vehicles to detect the special parameters of an emissions drive cycle, which prompts the vehicle's computer to turn on emissions controls, thereby making the vehicle fully compliant with Environmental Protection Agency (EPA) rules during testing.

While Volkswagen settled the EPA's criminal and civil actions for more than $20 billion it failed to obtain a release of liability from state and local governments. In its original ruling, the Ninth Circuit Court determined that Congress did not intend for the Clean Air Act to ignore actions of a manufacturer to intentionally tamper with vehicles after they were sold.

The Court noted that Congress “apparently did not contemplate that a manufacturer would intentionally tamper with the emission control systems of its vehicles after sale in order to… deceive regulators,” calling Volkswagen's conduct “unexpected and aberrant.”

Beasley Allen lawyers Dee Miles, Leslie Pescia and Tyner Helms represent Hillsborough County. The case is In re: EPC of Hillsborough Cty. et al. v. Volkswagen Grp. of America et al., (case number 18-15937) before the U.S. Court of Appeals for the Ninth Circuit.

Honda To Pay $96 Million To Settle States' Air Bag Defect Investigation

American Honda Motor Co. Inc. announced on Aug. 25 that it will pay $96 million to 46 states, three U.S. territories and Washington, D.C., to settle an investigation related to allegedly defective air bags in the company's vehicles. As previously reported, this has been the subject of extensive civil litigation.

Honda will pay $85 million to dozens of states and territories under one agreement related to the air bags made by Takata Corp., which allegedly contained a defective propellant system that could explode the bags when deployed, blasting passengers and drivers with shrapnel.

Under a separate but related deal, Honda will pay California an additional $11.3 million. California attorney general Xavier Becerra said in a news release that the settlement should act as a message to other automakers. He said:

Every time we get into our vehicle, safety is a priority. In case any company forgets that, California is ready to remind you and hold you accountable.

Florida attorney general Ashley Moody, whose state will receive $4.7 million of the multistate settlement, lauded the work of the coalition that mounted the investigation and pointed to “at least 14 deaths and more than 200 injuries in the U.S. alone” that allegedly resulted from the defect. He said:

Due to Honda's failure to properly ensure the complete safety of their vehicles and allegedly keeping important information from consumers, innocent lives were lost and hundreds more were injured.

Honda denied any wrongdoing and, in a statement, said it “continues to lead the industry in its efforts to replace defective Takata air bag inflators.” Honda said:

The company has thus far replaced more than 16 million defective Takata air bag inflators in its vehicles and made more than 292 million individual attempts to contact owners and urge them to have their recalled Takata air bag inflators replaced.

In addition to the monetary payments to the states and territories, Honda agreed to take steps to enhance its detection of possible defects in suppliers' products and avoid misleading advertising about its vehicles' air bags. The consent agreement will be enforced by way of consent judgments entered in various jurisdictions, according to news releases from the attorneys general involved in the investigation. Honda had previously agreed to a $600 million settlement in 2018 to resolve its part in sprawling civil litigation related to the Takata air bags.

Honda was the sixth automaker to reach a settlement to exit the multidistrict litigation (MDL), after Toyota, Subaru, Mazda and BMW agreed to pay a combined $553.6 million and Nissan settled for $98 million. The MDL is still ongoing, involving automakers including General Motors, Mercedes-Benz USA LLC, Audi of America LLC and Volkswagen Group of America.

Source: Law360.com

Tesla Wants Arbitration For Most Acceleration-Defect Plaintiffs

Tesla has asked a California federal judge to dismiss a majority of the named Plaintiffs from a proposed class action alleging its vehicles abruptly accelerate without warning. Tesla's basis for dismissal is that the customers signed binding arbitration agreements when they purchased their cars. Of the 23 named Plaintiffs from an amended complaint filed in July, Tesla asked U.S. District Judge James V. Selna to dismiss the claims of all but five of them and compel those Plaintiffs to enter arbitration. Tesla said in the motion:

Each of the plaintiffs at issue in this motion agreed to resolve their disputes with Tesla only in individual arbitration, and they should not be allowed to repudiate their binding agreements by bringing a putative class action before this court. These plaintiffs had the opportunity to review the agreement for thirty days and opt out of the arbitration provision if they wanted to reserve the ability to bring disputes in court or to assert class action claims. None of the plaintiffs did so.

Tesla did not directly address the claims of the other Plaintiffs in the motion or state why it was not also seeking to compel arbitration of their claims. Those Plaintiffs are located in different states and drive various models covered in the complaint.

We wrote on the suit against Tesla last month. It was first filed in January on behalf of eight Tesla vehicle owners in five states. It was expanded in July to include 23 named Plaintiffs in 11 states alleging Tesla's Model S, Model X and Model 3 electric vehicles contained a “sudden uncommanded acceleration” defect.

The complaint includes photos the customers say were taken after their Tesla accelerated without warning or reason and includes images of the automobiles having collided with trees, walls, buildings and other vehicles. The Plaintiffs contend they have “empirical and anecdotal evidence” indicating that the integrated electronic hardware and operating software of Tesla's 2013-2020 Model S, 2016-2020 Model X and 2018-2020 Model 3 all suffer from the acceleration defect.

The litigation was filed as the result of a preliminary review the National Highway Traffic Safety Administration (NHTSA) started in January after receiving a petition requesting a formal investigation into complaints that as many as 500,000 Tesla vehicles contained a defect that can cause sudden unintended acceleration, which may result in crash and injury. The named Plaintiffs are seeking to represent a nationwide class as well as classes of drivers in California, Arizona, Florida, Georgia, Massachusetts, New Jersey, North Carolina, Oregon, Pennsylvania, Texas and Washington.

Tesla's motion seeks to dismiss the claims of all but one each of the California, Arizona and Texas Plaintiffs, and the only Plaintiffs named in New Jersey and Massachusetts.

Tesla argued that the Plaintiffs named in the motion agreed to arbitrate their claims either through signed agreements or through an online process. The company argues the arbitration agreements were clearly outlined with fair, reasonable terms that would not qualify as being unconscionable.

The Plaintiffs are represented by Richard D. McCune, David C. Wright, Steven A. Haskins and Mark I. Richards of McCune Wright Arevalo LLP, Benjamin L. Bailey, Eric B. Snyder, Jonathan D. Boggs, Arthur H. Bryant and Todd A. Walburg of Bailey Glasser LLP and Donald H. Slavik of Slavik Law Firm LLC.

The case is Lee et al. v. Tesla Inc. et al. (case number 2:20-cv-00570), in the U.S. District Court for the Central District of California.

Source: Law360.com

Insurer Must Pay $21 Million Jury Verdict In Georgia Case

Cypress Insurance Co. has been rejected in its bid to avoid paying a $21 million jury verdict and a $6 million attorney fee award to the family of a man killed in an incident by a trucker. U.S. District Judge Richard W. Story ruled on Aug. 21 that the insurer gave no evidence that the jury's decision was wrong. The judge said the jury's verdict was supported by evidence and witness testimony, holding that Cypress failed to demonstrate and offer further proof that the trucker (its policyholder) did not act negligently and in bad faith. Judge Story said relating to that aspect of the case:

The judgment in this case is supported by the jury's verdict which the court concludes is supported by the evidence in the case and is not contrary to a greater weight of evidence.

Cypress had asked the court to set the jury verdict aside or in the aftermarket to grant a new trial. The jury had awarded $21 million to the family of Kip Holland, who died in December 2016 after being hit by a trailer that had detached and rolled away from a semi-tractor being driven by James Harper. The insurance carrier has argued that the accident was caused by an “act of God.”

Judge Story said in his order that to show that the accident was an act of God, the insurer must show that the driver's loss of consciousness caused the accident without any act of negligence. But the carrier failed to show that. The judge said an act of God is defined as “an accident produced by physical causes which are irresistible or inevitable, such as illness.” Judge Story said further:

The evidence presented at trial through both eyewitness testimony and a video recording of the actual collision tended to show that Mr. Harper's truck was driving erratically for approximately one and a half to two miles before the truck left its lane and traveled onto the shoulder of the road where Mr. Holland was walking.

Judge Story pointed out that evidence presented at trial also showed that “Harper's route took him by several locations where he could have potentially stopped the truck and gotten off the road.” Cypress previously argued that Harper experienced “a sudden and unforeseeable illness” making him “incapacitated and/or lose consciousness.” However, Judge Story said the company failed to offer any medical expert or witness testimony to support that argument.

Judge Story said Holland's family sufficiently demonstrated that Harper gave incomplete information in medical examinations to get a motor vehicle license from the Federal Motor Carrier Safety Administration (FMCSA). The judge said:

Critically, plaintiffs' evidence tended to show that, at minimum, Mr. Harper misrepresented his medical condition repeatedly in order to continue to drive commercially as that was his livelihood. Plaintiffs offered credible, probative evidence in support of the bad faith claim, which the Court finds legally sufficient.

Judge Story also rejected Cypress' challenge of the $6 million attorney costs award, saying the Holland family and their attorneys sufficiently illustrated their contractual agreement of having the lawyer earning a 40% fee, and the jury reasonably chose to enforce it. The judge said:

Defendants' contention that plaintiffs were required to provide evidence of an hourly rate to support their request for attorney's fees does not comport with the Court's reading of the governing law.

Holland, 50, was walking on the shoulder of a highway in Gainesville, Georgia, in December 2016. A witness following Harper's truck said Harper had been weaving for miles. The tractor Harper was towing separated and tumbled onto Holland. Harper's tractor kept going and ran into a number of parked cars in a parking lot before coming to rest. Harper was found slumped over sideways. Holland died from his injuries.

The Plaintiff in this case, Patricia Holland, is represented by Shane Lazenby of the Lazenby Law Group. The case is Patricia Holland et al. v. Cypress Insurance Co. et al., (case number 2:17-cv-00120) in the U.S. District Court for the Northern District of Georgia.

Source: Law360.com

Collision Avoidance Technologies

In April, the Insurance Institute for Highway Safety (IIHS) released a report looking at collision avoidance technologies that are currently available in some vehicles. The report found that technologies such as Blind Spot Warning (BSW), Automatic Emergency Braking (AEB) and Forward Collision Warning (FCW) systems reduced bodily injury claims by more than 15%. However, the report found that other technologies, like Lane Centering Warning (LCW) did not offer a significant benefit in avoiding crashes.

The National Highway Traffic Safety Administration (NHTSA) has recently been working with auto manufacturers in an effort to improve vehicle safety through these types of on-board technologies. The intent has been to improve technologies that will prevent distracted driving collisions, which, according to NHTSA, account for nearly 95% of all highway accidents.

In fact, in March 2016, NHTSA was able to get a majority of auto manufacturers to commit to implementing AEB as a standard feature in lightweight vehicles. AEB technology includes a number of on-vehicle technologies, such as radar, camera and lasers to detect potential crash threats. This technology is supposed to recognize potential collisions and engage the brakes if a driver does not react soon enough to avoid an accident. Studies have shown that FCW systems, coupled with AEB systems, have the potential to reduce crashes of all severities by 50%. However, the technologies employed by some manufacturers have a limited scope of operation, instead of working at all times.

Lawyers in our firm are involved in several ongoing cases where AEB and FCW systems failed to detect other vehicles in front of operating vehicles so as to avoid collisions. As a result, our clients have suffered severe injuries, as well as family members dying. While these technologies have statistically shown to be important in the reduction of accidents at all severities, not all technologies are the same, and NHTSA should provide manufacturers with guidance to ensure that these technologies can provide consistent protection at all levels in all vehicles. If you have any questions, contact Ben Baker, a lawyer in our firm, at 800-898-2034 or by email at Ben.Baker@beasleyallen.com.

Source: AboutLawsuits.com

TOXIC TORT LITIGATION

3M Agrees To Clean UP PFAs In North Alabama

As the previous issue of the Report went to print, 3M Company announced that it had reached an agreement with the State of Alabama to clean up chemicals it manufactured that had polluted the drinking water for thousands of residents in Decatur, Alabama, as well as surface water, ground water and various sites around northwestern portions of the state.

3M has manufactured PFAS, which are widely known as “forever chemicals” due to their persistence in the environment, for many years at its Decatur facility. These chemicals are linked with numerous health issues and, as a result, gained significant public attention due to their widespread use in a variety of consumer products. PFAS have been found in the public water supply of tens of millions of Americans and require special treatment to remove from drinking water.

The contamination in northwestern Alabama is extensive. In 2019, 3M settled a lawsuit filed by the West Morgan-East Lawrence Water Authority that sought compensation for a filtration system capable of removing PFAS from its drinking water. This settlement, however, did not address the surrounding areas and groundwater contaminated with PFAS.

The settlement reached with the Alabama Department of Environmental Management (ADEM) requires 3M to continue to investigate and remediate contaminated sites, conduct additional research studying PFAS health impacts, install and operate specialized filtration systems capable of reducing the levels of PFAS in its discharge, and analyze the most effective water treatment technologies.

The consent order includes all PFAS chemical releases, past and future, and will cover more than 5,000 PFAS chemicals that are currently in existence. Although much research has been conducted on the older, more common PFAS such as PFOS and PFOA, many newer chemicals have been developed to replace those and less research has been done on whether they present the same health risks.

3M's recognition that its chemicals are harmful and have contaminated the environment is a welcome sign that it understands its responsibility to clean up the environment. Significant work lies ahead, however, because numerous lawsuits have been filed by a variety of Plaintiffs exposed to these chemicals across the country.

Lawyers in our firm, along with Roger H. Bedford of Roger Bedford & Associates, have filed lawsuits on behalf of the water systems in Gadsden and Centre, Alabama. These complaints allege that carpet and textile companies, manufacturers, and chemical suppliers located upstream in Dalton, Georgia, are responsible for contaminating the Coosa River and Weiss Lake. The lawsuits were filed to ensure that these entities, not ratepayers in Gadsden and Centre, would pay to decontaminate their drinking water.

Beasley Allen is investigating other PFC contamination cases. If you have any questions about this subject, contact Rhon Jones, Rick Stratton or Ryan Kral, lawyers in our firm's Toxic Torts Section, at 800-898-2034 or by email at Rhon.Jones@beasleyallen.com, Rick.Stratton@beasleyallen.com or Ryan.Kral@beasleyallen.com.

Source: AL.com

Michigan To Pay $600 Million To Settle Flint Water Litigation

Michigan has agreed to pay $600 million to settle claims that its mismanagement exposed residents and property owners in the City of Flint to harmful lead-tainted water. The settlement will route the bulk of the money to impacted minors. The partial settlement resolves claims in state and federal court against Michigan officials, including former Gov. Rick Snyder, who were accused of switching the source of Flint's water despite information cautioning them against doing so. The officials were also accused of concealing the public health emergency that stemmed from the lead-tainted water flowing into the homes of the mostly minority community and failing to act to fix it.

The litigation, which began more than five years ago, took a turn in July when the state high court allowed the proposed class action to proceed. A May ruling by the Sixth Circuit also said Snyder and other public officials could not claim qualified immunity. It's estimated there could be tens of thousands who receive payouts.

A victims compensation fund will be set up and will provide 79.5% of the funds to minors, the bulk of which will go to those who were 6 years old or younger when they were exposed to the lead-tainted water, which can harm childhood development. Another 18% will go to the “adults and property damage” group. Smaller payments will be made to businesses for economic loss and for other relief, according to a summary provided by the state.

The partial settlement resolves claims against the state, the Michigan Department of Environmental Quality and individuals including Snyder. It does not end litigation against a pair of private engineering firms that are fighting professional negligence allegations: Veolia North America and Lockwood Andrews & Newman. There is also ongoing litigation against the U.S. Environmental Protection Agency.

The agreement, the result of 18 months of negotiations, will be widely advertised and will allow residents to submit a claim, according to the Plaintiffs' lawyers. About $12 million will also go to the school system to help children harmed by lead and improve special education. And $35 million will be set aside for minors who don’t make an immediate claim but might when they are older.

Payouts will be based on a damage grid that will consider the level of injury. For example, minors who “show personal injuries, blood or bone lead levels, or who lived in homes with lead service lines” may be eligible for a greater payout, according to Michigan's summary of the settlement.

Preliminary approval papers should be filed in the near future and the settlement must still be approved. In the litigation, Plaintiffs alleged that after Flint's water supply was switched, official neglect continued through much of that year, with officials covering up the problem and working to discredit information detailing elevated lead levels in children's blood. Officials eventually acknowledged the issue and the move to switch the source of the city's water was reversed.

In the July decision by a divided Michigan Supreme Court, Justice Richard H. Bernstein wrote in the lead opinion that the Plaintiffs' allegations involve “one of the most troublesome breaches of public trust in this state's history” and brought “catastrophic consequences” for the residents' “health, well-being and property.”

The Sixth Circuit also said in May that Snyder and other public officials must face claims that they violated the constitutional rights of the Flint residents because they were allegedly indifferent to the harm caused by the city's water crisis. The majority said the officials could not claim qualified immunity because they allegedly violated the residents' bodily integrity, a protected constitutional right, and did so with “deliberate indifference.”

The cases include Luke Waid et al. v. Richard Snyder et al. (lead case number 19-1425) in the U.S. Court of Appeals for the Sixth Circuit, and Melissa Mays et al. v. Governor of Michigan et al. (case number 157335-7) and Melissa Mays et al. v. Governor of Michigan et al. (case number 157340-2) both in the Michigan Supreme Court.

Source: Law360.com

Industrial Manufacturer Trane Sets Aside Business Units To Create Asbestos Trust

The national industrial manufacturer, Trane Technologies PLC, recently set aside two newly created units of its business in order to fund an asbestos bankruptcy trust and relieve itself of the hundreds of mesothelioma cancer lawsuits it faces each and every year. As part of the liability restructuring, Trane Technologies formed two subsidiaries, Aldrich Pump LLC and Murray Boiler LLC, in May 2020 in order to transfer assets and liability to the new business entities and enjoin all asbestos cancer-related lawsuits against Trane Technologies.

After creating the subsidiaries, Trane Technologies subsequently transferred tens of millions of dollars in cash and assets and recently had these entities file for Chapter 11 bankruptcy in U.S. Bankruptcy Court for the Western District of North Carolina. The end game for the transfer of assets and liability is to ultimately establish an asbestos bankruptcy trust for Plaintiffs with claims against Trane Technologies to file claims against.

According to Trane Technologies, the company resolves through trial or settlement an estimated 900 asbestos cancer lawsuits each year and spends nearly $100 million on litigation costs, which includes payouts for victims and the company's own attorney's fees. The strategy is similar to those enacted by other asbestos companies like Bestwall LLC and Kaiser Gypsum Company Inc. in order to shield the parent companies from asbestos cancer lawsuits brought by victims who claim they developed mesothelioma from exposure to asbestos in the Defendant's products.

There are currently more than 50 such asbestos bankruptcy trusts set up across the United States to compensate victims who claim they developed mesothelioma and non-malignant injuries through the course of working for the bankrupt company or with its products. By filing claims against these asbestos bankruptcy trusts, victims and their families can recover vital compensation for the expenses associated with asbestos-related injuries such as medical care, lost wages and the pain and suffering of living with the associated health condition.

For decades, companies used asbestos in a variety of commercial, industrial and military applications and did so despite knowing of the health consequences associated with exposure to the deadly carcinogen. It was not until the 1970s when federal legislation effectively banned the use of asbestos did companies stop using the mineral in its products, which included everything from vinyl floor tiles to insulation to auto parts.

Perhaps the most serious health consequence of asbestos exposure is mesothelioma, a rare and deadly form of cancer that commonly affects the thin linings of tissue surrounding vital organs such as the lungs, heart and abdominal cavity. Because mesothelioma can take anywhere from 20 to 50 years to be diagnosed, many victims and their families must file claims against the now bankrupt Defendants in order to recover compensation for the harm suffered.

If you need more information, contact Will Sutton, a lawyer in our Toxic Torts Section, at 800-898-2034 or by email at William.Sutton@bealseyallen.com.

Source: mesolawcenter.com

The ONGOING Roundup Litigation

Monsanto Roundup Settlement In Question

Bayer appears to be “welshing” on the $10.9 billion deal it struck in June to settle tens of thousands of lawsuits over its Roundup weedkiller, the California federal judge overseeing the Roundup multidistrict litigation (MDL) opined on Aug. 27 during a Zoom hearing. As has been proved in the trials held thus far, Roundup causes non-Hodgkin's lymphoma.

Bayer announced on June 24 that it had settled three-quarters of the 125,000 Roundup cancer claims. U.S. District Judge Vince Chhabria of the Northern District of California, who is overseeing the Roundup MDL imposed a 90-day stay on the litigation while details of the settlement were worked out.

But according to “several” confidential letters Judge Chhabria received from Plaintiffs' lawyers, Bayer is reneging on its end of the deal. Some of the lawyers requested the judge lift the stay on Roundup litigation and schedule more cases for trial.

A Bayer lawyer told Judge Chhabria that the parties had hit “a speed bump” in settlement negotiations that put plans temporarily on hold and, as a result, only 667 cases in the MDL had been settled in theory, but none had been fully resolved.

Judge Chhabria took issue at the news, pointing out that 667 cases were just a drop in the bucket of the more than 4,000 in the MDL. Referencing Bayer's June settlement announcement, the judge said: “I took all of that to mean the MDL is settled … maybe there was no deal in the first place.”

The judge also said that had he known that a since-withdrawn $1.25 billion class action settlement was a pawn in the global settlement, he would not have agreed to pause the litigation. That deal was also announced in June, but both parties withdrew the proposal in July after Judge Chhabria said the constitutionality of the plan was on shaky ground because it would have relied on a panel of scientists to determine whether Roundup causes cancer rather than a judge and jury. Judge Chhabria said at the hearing:

What I am concerned about is that Monsanto may be manipulating this litigation process to its advantage somehow. My only concern is that I don’t want the litigation to be used as a pawn in settlement negotiations, either way. I don’t want them to manipulate, or take advantage, and use to their advantage a stay in litigation, and I don’t want lifting of the stay to prompt litigation.

Instead, Judge Chhabria gave a Sept. 24 deadline for lawyers to either work out a settlement or come up with an alternative plan.

Rhon Jones, who along with John Tomlinson, is on our firm's Roundup Litigation Team, had been skeptical about the settlement from the start. Rhon had this to say when contacted about this weird turn of events:

We did not resolve cases for our clients at the time Bayer announced this settlement back in June because it lacked transparency and we felt Bayer was not serious about resolving cases for our clients. The hearing yesterday confirmed this.

As it turns out Rhon and John were on solid ground when they elected at the outset not to go along with the settlement on behalf of our clients. It now appears they definitely made the right decision

Sources: The National Law Journal and Law360.com

Appeals Court Denies Monsanto Bid For Roundup Case Rehearing

A California appeals court recently rejected Monsanto's effort to reduce the amount of the jury verdict in favor of Dewayne “Lee” Johnson, a California groundskeeper who is struggling to survive cancer. As previously reported, a jury found Johnson's cancer was caused by his exposure to Monsanto's Roundup herbicides.

The Court of Appeal for the First Appellate District of California also rejected the company's request for a rehearing of the matter. The court's decision followed its recent ruling criticizing Monsanto for its denial of the strength of the evidence that its glyphosate-based weed killer causes cancer. In the July ruling, the court said that Plaintiff Johnson had presented “abundant” evidence that Monsanto's weed killer caused his cancer. The appeals court stated in that decision:

Expert after expert provided evidence both that Roundup products are capable of causing non-Hodgkin's lymphoma… and caused Johnson's cancer in particular.

The appeals court did reduce the damages award for Johnson, ordering Monsanto to pay $20.5 million, down from $78 million ordered by the trial judge and down from $289 million ordered by the jurors who decided Johnson's case in August 2018. In addition to the $20.5 million Monsanto owes Johnson, the company is ordered to pay $519,000 in costs. Monsanto, which was bought by Bayer AG in 2018, had urged the court to cut the award to Johnson to $16.5 million.

Source: US Right To Know

Beasley Allen Roundup Litigation Team

Beasley Allen lawyers are currently representing thousands of clients who have been exposed to Roundup and developed non-Hodgkin's lymphoma. Our Roundup Litigation Team is willing to answer any questions you might have. For more information, contact one of the members of the Roundup Litigation Team: John Tomlinson, who heads up the team, Michael Dunphy, Danielle Ingram or Rhon Jones, all lawyers in our Toxic Torts Section, at 800-898-2034 or by email at John.Tomlinson@beasleyallen.com, Michael.Dunphy@beasleyallen.com, Danielle.Ingram@beasleyallen.com or Rhon.Jones@beasleyallen.com I will join the team and be involved in the trials involving Beasley Allen clients. My contact information is Jere.Beasley@beasleyallen.com.

NURSING HOME LITIGATION

More Than 1,600 Georgia Senior Care Residents Have Died With COVID-19

Nearly half of all COVID-19 deaths in Georgia are in long term care facilities. The Department of Community Health's report indicated that, as of July 29, more than 9,500 senior care residents statewide have tested positive during the pandemic and more than 1,600 have died.

Even though the list is supposed to capture all cases throughout the pandemic, many believe the information is not reliable. Richard J Mollot, executive director of the New York-based Long Term Care Community Coalition, stated:

I think that there is pretty much no oversight or accountability right now, whatsoever, in nursing homes. I find it absolutely terrifying.

The state does not vet the information supplied by the homes. The Department of Community Health (DCH) is not tracking cases and deaths in hundreds of long-term care facilities across the state (those with fewer than 25 beds). Thousands of Georgians live in those facilities.

Plus, The Atlanta Journal-Constitution (AJC) found that even though the DCH numbers are supposed to be cumulative – capturing and adding up all the positive cases over time – some facilities have appeared on the list with confirmed cases one day and drop off the next. Arbor Terrace at Cascade, an assisted living facility that has reported 17 deaths, now shows up on the state's list with zero deaths from COVID-19. The Arbor Company said it has continued to report the 17 deaths to the state.

Other facilities told the AJC they have gotten positive results that turned out to be false and changed their report. DCH doesn’t independently verify information from the facilities. DCH said it “reports data as it is communicated to us by the facilities.”

Facility owners say they can’t be blamed for large outbreaks in their facilities because they were not made a priority in the initial weeks of the pandemic and could not get enough masks, gowns, gloves and tests to protect their residents and staff from COVID-19. However, the big outbreaks and deaths at Dunwoody and other nursing home facilities continue to pop up, even as testing and supplies are becoming more available.

Melanie McNeil, the state's long-term care ombudsman, said that incomplete, inaccurate or outdated testing muddies the picture of facilities that are reporting numbers to the state every day. According to Ms. McNeil, the large number of confirmed coronavirus cases and deaths raises questions about whether the state's senior care facilities are doing everything possible to prevent the spread of the virus. She stated:

Even with COVID, if you’re following the right infection-control procedures, it shouldn’t have gone like this. It shouldn’t have been so rampant.

The Trump administration announced in June that it wants states to conduct inspections of all nursing homes for infection control by July 31, with violations related to infection control resulting in increased fines. The policy called for quick action and a shift in approach for Georgia nursing homes. Because Georgia had converted to remote reviews of infection control in long-term facilities early in the pandemic due to a shortage of protective equipment, it lagged behind most other states in completing the in-person inspections.

Questions still remain regarding whether nursing homes will do enough to properly care for their residents. In the meantime, many more residents and staff members are at risk of contracting COVID.

Source: AJC

Alabama Nursing Homes Struggle To Address COVID-19

Nursing homes have been at the center of coronavirus transmission since the virus first arrived in the United States. Many elderly residents suffer from underlying conditions that make them particularly vulnerable to serious complications and death. According to the Centers for Medicare and Medicaid Services (CMS), nursing home residents account for about a quarter of the nation's COVID-19 deaths. In Alabama, there were 686 coronavirus deaths in long-term care facilities as of August 5 – 42% of the state's 1,639 COVID-19 deaths.

In Jefferson County, which has the most nursing home residents of any county in the state, the average number of new cases per day was more than 200 per day in mid-July. That is roughly 38.21 cases per day per 100,000 people. Two of the state's other largest counties, Madison and Mobile, also broke 100 average new daily cases.

John Matson, a spokesperson for the Alabama Nursing Home association, pointed to this research that showed nursing homes with outbreaks of virus are located in communities that are also experiencing high volumes in cases. John stated:

As COVID-19 maybe moves from our urban and suburban areas into rural areas and you see outbreaks in rural areas you will see outbreaks in nursing homes because a nursing home is a reflection of the community.

Of the 231 nursing homes in Alabama, 195 have reported at least one resident or employee who has tested positive for the virus. Of those who have died from COVID-19 in Alabama, 79% have been seniors 65 or older.

Alabama Governor Kay Ivey committed $18 million to help nursing homes deal with the surge in infections and deaths. Governor Ivey said in a July Press release:

Some of our largest outbreaks of COVID-19 were within nursing homes and we must do everything possible to contain the spread within their walls.

On Aug. 5, John Matson informed that CMS planned to send rapid testing machines to 78 Alabama nursing homes to start, and eventually will supply one to each nursing home in the state. He said some facilities had received them while others were still waiting for delivery. Those facilities that did receive the rapid testing machines received the machine without any guidance from CMS and were unable to immediately use them.

Without these rapid testing machines, nursing homes are seeing wait times for results as long as a week, which public health experts say make the results nearly worthless.

Source: AL.com/alreporter.com

The Beasley Allen Nursing Home Litigation Team

Alyssa Baskam, a lawyer in our Atlanta office, heads Beasley Allen's Nursing Home Litigation Team. Currently, David Diab, Tucker Osborne and Gavin King also serve on the team. In order to properly handle nursing home litigation, lawyers and support staff must have specific experience and expertise in this type case.

Alyssa and other members of her team are dedicated to representing the elderly and infirm who can’t fight back when they suffer at the hands of inadequate care and deficient inpatient facilities. If you have a case involving abuse or neglect at a nursing home or other inpatient facility, we would like to talk with you about working together on the case. You can contact Alyssa, David Diab, Tucker Osborne, and Gavin King at 800-898-2034 or by email at Ayssa.Baskam@beasleyallen.com, David.Diab@beasleyallen.com, Tucker.Osborne@beasleyallen.com or Gavin.King@beasleyallen.com.

Class Action Litigation

Robinhood Users Amend Their Suit

A proposed class of Robinhood users have filed an amended complaint against the trading app, alleging the app's “game-like interface” attracted inexperienced investors who found themselves locked out of their accounts in early March. The consolidated class action in California federal court was originally based on claims for negligence and breach of fiduciary duty. It was first filed on March 4, just days after Robinhood's services were interrupted for nearly an entire trading day that saw an explosive stock market rally.

After diversifying their legal teams as requested by U.S. District Judge James Donato, the two firms leading the litigation amended the suit with more robust allegations regarding not just the March 2 outage, but three additional outages Robinhood experienced in March and another that occurred in mid-June. The suit claims that Robinhood lures in young and unsophisticated traders with its sleek app design and easy-to-use interface, but lacked contingency and continuity plans that could have aided users when they lost access to their accounts at a critical time. The amendment says:

During the outages, Robinhood failed to process trades in a timely manner or at all, and it was discovered that Robinhood's continuity plan was nonexistent. Robinhood simply abandoned its customers.

According to the amended complaint, Robinhood has experienced 47 service interruptions since March. It's alleged further:

During the outages, Robinhood's customers were completely unable to use the services, including to buy or sell securities or to exercise option contracts through Robinhood's website and app.

The suit now asserts gross negligence, breach of fiduciary duty, breach of contract, unjust enrichment and a host of other claims. It's alleged that Robinhood's help center has been unavailable during these outages – the company has even “admitted that during the outages the help center was unavailable and that Robinhood's phone support was non-existent” – leaving customers with no way to access their funds or execute time-sensitive trades.

The first outage occurred from 9:33 a.m. March 2 through the end of the trading day at 4 p.m., though Robinhood's systems continued to experience limited issues on March 3. On March 2, the Dow Jones Industrial Average rose more than 1,294 points, the largest point gain in history at the time. In parallel, the S&P 500 gained 136 points and the Nasdaq was up 384 points.

On March 9, Robinhood users were again locked out of their accounts just as “the Dow Jones Industrial Average had its largest point plunge in history up to that date,” according to the proposed class action. Trades that were placed before these two major outages either failed or processed at the wrong time or price, and some trades that appeared to be executed during the outages were later discovered to have also failed, the suit alleges.

The proposed class asserts that Robinhood had a duty not only to process trades in a timely fashion and at the best prices for its users, but to maintain a business continuity plan in case of a significant business disruption. Customers suffered “concrete, particularized, and actual damages” when they were unable to monitor their accounts or exercise option contracts during a time of market volatility, according to the amended complaint. The complaint said:

Many plaintiffs and class members held options contracts that expired, worthless, during the outages. And some of those contracts, such as the contracts held by certain plaintiffs herein, were exercised by Robinhood during the outages, without express authorization or approval of its customers, at a loss.

The interim lead class counsel is Anne Marie Murphy, Mark C. Molumphy, Leslie Hakala, Noorjahan Rahman, Tyson C. Redenbarger and Julia Q. Peng of Cotchett Pitre & McCarthy LLP and Matthew B. George, Maia C. Kats, Laurence D. King and Mario M. Choi of Kaplan Fox & Kilsheimer LLP. Liaison counsel is Steve A. Lopez of the Gibbs Law Group LLP. The executive committee is represented by Leslie Pescia of Beasley Allen, Courtney M. Werning of Meyer Wilson Co. LPA, Susana Cruz Hodge of Lite DePalma Greenberg LLC, Rachele Byrd of Wolf Haldenstein Adler Freeman & Herz LLP, Jamisen Etzel of Carlson Lynch LLP, Erin Comite of Scott + Scott Attorneys at Law LLP, Brandon Taaffe of Shumaker Loop & Kendrick LLP, Tina Wolfson of Ahdoot & Wolfson PC and Steve A. Lopez of the Gibbs Law Group LLP.

The case is In re: Robinhood Outage Litigation (case number 3:20-cv-01626) in the U.S. District Court for the Northern District of California.

Source: Law360.com

Colgate Retirees Win $300 Million Suit Over Benefit Calculation

A class of Colgate-Palmolive retirees who claimed they were shortchanged on retirement payments have won their case in a New York federal Court. U.S. District Judge Lorna G. Schofield ruled that Colgate misinterpreted its retirement plan's terms when calculating workers' benefit entitlement in violation of the Employee Retirement Income Security Act (ERISA). The judge granted the roughly 1,200-member class bid for partial summary judgment in an opinion and order, writing that Colgate ignored “unambiguous” plan language when totaling up retirees' benefits.

The lawsuit asked Judge Schofield to weigh competing arguments about how to interpret the plan's residual annuity amendment (RAA), which made additional payments available to Colgate retirees who collected their retirement savings as a lump sum between 1989 and 2005.

Judge Schofield had to decide whether Colgate or the retirees correctly identified how to determine RAA benefit eligibility and how to calculate the benefit. Judge Schofield wrote: “Based on a plain reading of the RAA, Plaintiffs are correct.” The judge's decision marked the latest development in the retirees' $300 million lawsuit, which has been ongoing since 2016. It follows a ruling earlier this summer that reduced the scope of the case at Colgate's request. Two claims were dismissed alleging that Colgate incorrectly applied certain offsets when calculating the RAA benefit, and that the company denied lead Plaintiff Rebecca McCutcheon the right to review certain documents.

The retirees' suit, which received class certification in 2017, follows an earlier ERISA case accusing Colgate of miscalculating retirement benefits that wound up in a $45.9 million settlement. That settlement called for approximately 8,600 Colgate retirees to receive an average of $5,330 each to resolve claims that the company and its cash-balance retirement plan failed to pay former employees their full accrued benefits in violation of ERISA.

The retirees are represented by Eli Gottesdiener and Albert Huang of Gottesdiener Law Firm PLLC. The case is McCutcheon et al. v. Colgate-Palmolive Co. et al. (case number 1:16-cv-04170) in the U.S. District Court for the Southern District of New York.

Source: Law360.com

Herbalife Distributors Lose Appeal To Arbitrate $1 Billion RICO Lawsuit

The Court of Appeals for the Eleventh Circuit has declined to send a putative $1 billion class action against 44 of Herbalife Ltd.'s top distributors to arbitration or to a California federal court. The appeals court panel affirmed a Florida federal judge's ruling on the Racketeer Influenced and Corrupt Organizations (RICO) Act suit.

In August 2018, U.S. District Judge Marcia G. Cooke sent half of the named Plaintiffs' cases against Herbalife to arbitration and the other half to a California federal court. But, the judge kept all eight named Plaintiffs – disgruntled distributors – out of arbitration and in Florida federal court for their claims against the nutrition supplement company's top distributors.

The top distributors appealed that decision, pointing to various contracts the eight named Plaintiffs signed with Herbalife, but, in a unanimous, published opinion, the panel agreed with Judge Cooke's finding that the top distributors were never a party to the contracts. The panel said:

Because none of the top distributors is a party to any of the aggrieved distributors' agreements, they cannot invoke the agreements' arbitration clauses. Thus, the district court correctly denied the top distributors' motion to compel arbitration.

The panel further noted that denial of a motion to transfer venue is typically a non-appealable order and that nothing about this case makes it so unusual that the panel should consider allowing an appeal. The panel said:

Indeed, resolving the transfer-of-venue issue would require us to consider factors not relevant to our resolution of the arbitration issue, including ‘the convenience of parties and witnesses. We are not convinced that this is one of those rare circumstances where pendant appellate jurisdiction can be found.

The suit, filed in September 2017 in Miami by eight former Herbalife distributors, focuses on the company's “Circle of Success” event cycle, a series of costly seminars held around the country where the company's representatives and inner circle of top distributors work to build up enthusiasm among the network's hundreds of thousands of members and to drum into them the message that success depends on attending as many such events as possible. The complaint says in its introductory statement:

This action seeks recovery from a corrupt organization of individuals and entities who act together, using misrepresentation and deceit, to sell access to a series of emotionally manipulative live events.

The suit includes counts under the federal RICO Act alleging a racketeering enterprise, deceptive and unfair trade practices under the Florida Deceptive and Unfair Trade Practices Act and unjust enrichment and negligent misrepresentation. It seeks to certify a class of all people who purchased tickets to and attended at least two Circle of Success events from 2009 to the present “in pursuit of Herbalife's business opportunity” – a description that could comprise hundreds of thousands, the suit said.

The suit alleges that these top distributors conspired with the company to build up the Circle of Success scheme, driving the program through their many appearances as guest speakers, in which they delivered repeated claims that attending all Circle of Success events is necessary and would directly lead to success within the Herbalife business model.

The complaint says that individual Defendants also benefited financially through their ownership of the various regional events and sale of tickets. They also often rely on lower-tier, ticket-buying distributors' voluntary work to run them, according to the complaint. The complaint details the systemic, scripted nature of these events, divided into separate tiers of semi-local Success Training Seminars, semi-annual Leadership Development Weekends, and “Extravaganza” and “January Spectacular” events run by Herbalife itself.

Ticket prices ranged from $30 to $200 and often required travel for attendees, who are also given incentives to make thousands of dollars in product purchases to achieve VIP status and other perks.

In August 2018, Judge Cooke said she was not convinced by the former distributors' argument that their agreements were illusory, but she found that only four Plaintiffs – Jennifer and Michael Lavigne, Cody Pile and Felix Valdez – had valid arbitration clauses in their agreements that pertained to their claims against Herbalife itself, and only the other four – Jennifer Ribalta, Jeff and Patricia Rodgers, and Izaar Valdez – had valid forum selection clauses that required their claims against the company to be transferred to California. Judge Cooke denied both motions with respect to the individual Defendants.

The Plaintiffs are represented by Etan Mark, Donald J. Hayden and Lara O'Donnell Grillo of Mark Migdal & Hayden and Jason Jones. The case is Rodgers et al. v. Herbalife Ltd. et al. (case number 18-14048) in the U.S. Court of Appeals for the Eleventh Circuit.

Source: Law360.com

Recent Settlements In Class Action Litigation

Activity around the country in class action litigation, because of the effects of COVID-19, has been slowed. But things are expected to pick up very soon. Even so, there have been several settlements in class action cases recently. The following are some interesting examples.

Facebook's $650 Million Biometric Deal Gets Initial Approval

A California federal judge preliminarily approved Facebook's revised $650 million biometric privacy settlement with a class of Illinois users after rejecting a previous $550 million version of the deal. In an Aug. 19 order, U.S. District Judge James Donato said the parties' revised settlement agreement addresses his “serious concerns” about their previous proposal, which the judge had criticized for being too small and having broad release provisions. “The revised settlement agreement and additional information presented by the parties have resolved the court's concerns,” the order says. “Consequently, preliminary approval of the class action settlement is granted.”

If approved, the settlement would resolve a five-year-old consolidated class action over claims the social media giant breached the Illinois Biometric Information Privacy Act by using facial recognition technology without users' consent to fuel its photo tag suggestion feature.

Facebook also agreed to provide nonmonetary injunctive relief by setting all default face recognition user settings to “off” and by deleting all stored face templates for class members unless Facebook obtains their express consent.

Days before a hearing was set in July, the parties filed a motion asking the judge to preliminarily approve a revised $650 million settlement, which attempted to address Judge Donato's concerns. The new deal narrowed the release provision and class members could receive between $200 and $400, while class counsel would seek up to $110 million in fees plus expenses.

The settlement covers a certified class of Facebook users located in Illinois for whom Facebook created and stored a face template after June 7, 2011.

A hearing on the settlement's final approval is set for Jan. 7, 2021.

The class is represented by Paul Jeffrey Geller, Stuart A. Davidson, Christopher C. Gold, Shawn A. Williams, John H. George, Patrick J. Coughlin, Ellen G. Stewart, Lucas F. Olts and Randi D. Bandman of Robbins Geller Rudman & Dowd LLP, Rafey S. Balabanian, Jay Edelson, J. Aaron Lawson, Lily Hough, Ryan D. Andrews, Benjamin Richman and Alexander G. Tievsky of Edelson PC and by Michael P. Canty and Corban S. Rhodes of Labaton Sucharow LLP.

The case is In re: Facebook Biometric Information Privacy Litigation, (case number 3:15-cv-03747), in the U.S. District Court for the Northern District of California.

Source: Law360.com

Spectrum Brands Agrees To $39 Million Stock-Drop Settlement

Investors in household products company Spectrum Brands Holdings have asked a Wisconsin federal judge to approve a $39 million settlement agreement that would end claims that the company misled shareholders about the progress of its efforts to consolidate its facilities.

In a motion filed on Aug. 10, lead Plaintiffs the Public School Teachers' Pension and Retirement Fund of Chicago and the Cambridge Retirement System told U.S. District Judge James D. Peterson that the multimillion-dollar settlement sum was equal to about 12% of the maximum damages the class realistically could have recovered at trial.

In the most recent version of their proposed class action complaint, the investors claimed that Spectrum kept them in the dark about problems it experienced as it tried to centralize the facilities used by two of its divisions. In statements to investors, Spectrum had characterized its consolidation plans as a way for the company to save money, streamline its supply and distribution chains and make its customer service better. But instead of improving Spectrum's prospects, “the consolidations turned into what both the company and analysts later called ‘self-inflicted wounds' that materially impacted the company's financial performance, destroyed major customer relationships, and wrecked management credibility,” the investors said in their amended complaint, which they filed in July 2019.

The co-lead Plaintiffs and the proposed class are represented by Katherine M. Sinderson, Jai Chandrasekhar, Matthew Traylor and Avi Josefson of Bernstein Litowitz Berger & Grossmann LLP and Douglas M. Poland of Stafford Rosenbaum LLP.

The case is In re Spectrum Brands Securities Litigation (case number 3:19-cv-00347) in the U.S. District Court for the Western District of Wisconsin.

Source: Law360.com

Credit Suisse Gets Initial Approval For $15.5 Million Write-Down Settlement

A New York federal judge gave a preliminary approved on Aug. 24 to a $15.5 million settlement between Credit Suisse and investors who sued the bank alleging it hid problems with risk management in its fixed-income franchise before $1 billion in write-downs in 2016.

The four pension funds that are leading the class asked U.S. District Court Judge Lorna G. Schofield in July to approve the $15.5 million cash settlement after the case's court-ordered mediation in March 2019.

The December 2017 lawsuit claimed Credit Suisse and several of its executives lied about risk limits and risk controls on its 2014 annual report, and misled investors in an Oct. 21, 2015, press release and earning call about the extent of the investment bank's positions in its distressed portfolio – collateralized loan obligations and distressed debt – and the riskiness of those investments.

Investors claimed this artificially inflated Credit Suisse's stock price and that the price dropped when the truth came out.

The shareholders said the investment bank's misstatements allowed it to amass $4.3 billion in exposure in that distressed portfolio, causing massive write-downs and a loss to investors. Expanding its investments in fixed-income markets, Credit Suisse took on $1.3 billion in collateralized loan obligations and $3 billion in distressed debt, investors said.

The bank disclosed in February 2016 that it had taken a $633 million write-down because of losses in these positions. That caused Credit Suisse's American depositary receipts to drop from $16.69 to $14.89, according to the complaint. The bank announced in March 2016 there was $346 million more in write-downs against its first-quarter earnings, a loss of almost $1 billion, according to the suit.

The settlement class includes people who acquired American depositary receipts of Credit Suisse between March 20, 2015, and Feb. 3, 2016, and who were allegedly harmed.

The co-lead Plaintiffs are the City of Birmingham Retirement and Relief System, Westchester Putnam Counties Heavy & Highway Laborers Local 60 Benefit Funds, Teamsters Local 456 Pension and Annuity Funds, and the International Brotherhood of Teamsters Local No. 710 Pension Plan.

The pension funds are represented by Carol V. Gilden, Daniel S. Sommers and Molly J. Bowen of Cohen Milstein Sellers & Toll PLLC, and Steven B. Singer, Kyla J. Stewart, Joseph E. White III, Dianne M. Anderson, Lester R. Hooker and Adam Warden of Saxena White PA.

The case is City of Birmingham Firemen's and Policemen's Supplemental Pension System et al. v. Credit Suisse Group AG et al. (case number 1:17-cv-10014) in the U.S. District Court for the Southern District of New York. A hearing for final approval will be held on Dec. 10.

Huntington Bancshares Settles ERISA Suit For $10.5 Million

Huntington Bancshares Inc. has agreed to a $10.5 million settlement of a proposed class action that challenges its decision to make allegedly underperforming company-owned mutual funds the centerpiece of its 401(k) plan. A group of participants in Huntington's 401(k) plan have asked an Ohio court for preliminary approval of the class action settlement. If approved, the settlement would require Huntington to place $10.5 million in a settlement fund to be distributed to approximately 38,851 class members after attorney fees, case expenses and payments to the lead Plaintiffs, according to a memorandum in support of the motion.

The proposed class consists of current and former employees of Huntington Bancshares Inc. and its subsidiaries. Huntington is a Columbus, Ohio-based bank holding company that runs the Midwestern banking chain Huntington National Bank. The proposed class sued Huntington in December 2017, accusing it of running the plan more for the company's benefit than workers' benefit. Huntington stuffed its 401(k) plan with its own mutual funds, even though these products weren’t doing well, and set the plan's administrative fees way too high, the proposed class alleged.

The suit accused the plan's oversight committee and Huntington's board of directors of “us[ing] their control of the plan to position Huntington to profit from the demise of [its] mutual fund business.” The suit named the committee, the board of directors and Huntington Bancshares as Defendants. U.S. District Judge Michael H. Watson has reduced the proposed class action in September 2019, but refused to dismiss it entirely.

The proposed class is represented by Kai H. Richter, Paul J. Lukas, Brock J. Specht, Brandon McDonough and Ben Bauer of Nichols Kaster PLLP and Robert E. DeRose of Barkan Meizlish Handelman Goodin Derose Wentz LLP.

The case is Karpik et al. v. Huntington Bancshares Inc. et al. (case number 2:17-cv-01153) in the U.S. District Court for the Southern District of Ohio.

Source: Law360.com

Walmart Will Pay Up To $9.5 Million In Meat Overcharge Suit

Walmart has agreed to pay up to $9.5 million and change certain business practices in order to settle a putative class action in Florida federal court. It was alleged that the retail giant has for years used sales prices to overcharge potentially millions of customers nationwide for its packaged meat products.

To settle the lawsuit brought by Walmart Inc. customer Vassilios Kukorinis, the retailer has agreed to pay at least $4.5 million and up to $9.5 million to reimburse a proposed class of U.S. customers who purchased weighted goods with inaccurate final sale prices dating back to Feb. 13, 2015. “Hundreds of thousands, if not millions, of consumers over this more than five-year period would potentially fall into the settlement class,” according to the proposed settlement agreement.

The settlement also requires Walmart “to maintain certain business practice commitments relating to remediation of the pricing and marking of weighted goods.” Those commitments will be paid for by Walmart separate from the qualified, nonreversionary settlement fund. Kukorinis, a Florida resident, brought his putative class action against Walmart in February 2019, alleging that it “reaped millions of dollars in unlawful gains” by advertising false unit prices for perishable goods. Kukorinis says he purchased weighted goods, including spiral hams and pork loins, at Walmart stores in Florida with yellow sales labels stating incorrect unit prices.

Judge Martinez found that because Kukorinis had spelled out specific instances in which he purchased meat products from Walmart for a higher price than the unit price listed, he had alleged concrete harm. The judge also kept intact Kukorinis' alternative unjust enrichment claim, saying in June that it would be inequitable to allow Walmart to retain extra profits received from the sale of items listed with incorrect unit prices.

Under the settlement agreement, Walmart customers who have saved their receipts and the product packaging showing the overcharge are entitled to recover the actual amount of overpayments, without any cap.

However, those customers with only receipts, but lacking proof of the actual amount overcharged, can be reimbursed for up to 24 purchases and receive up to $40 in total. Customers with no documentation of their overpayments are also entitled to reimbursements for overcharges, although their reimbursement is capped at $10, according to the proposed settlement. The settlement agreement also provides named Plaintiff Kukorinis with a $25,000 service award.

The class is represented by John A. Yanchunis and Ryan McGee of Morgan & Morgan Complex Litigation Group. The case is Kukorinis v. Walmart Inc. (case number 1:19-cv-20592) in the U.S. District Court for the Southern District of Florida.

Source: Law360.com

PHARMACY BENEFITS MANAGER (PBM) LITIGATION

THE NCPA IS Calling For Patient Advocates To Fight Back Against PBMs

The National Community Pharmacists Association (NCPA) is calling upon patients to bring awareness to the deceptive practices of Pharmacy Benefit Managers (PBMs). In a message to the pharmacy community, the NCPA asks pharmacies several very important questions:

Do your patients know how PBMs are threatening your business and compromising care? Do they know how PBM practices are increasing their prescription costs? Let your patients know how PBMs line their pockets with your patients' and your community's dollars.

PBMs are corporate middlemen in the pharmacy supply chain that play a big role with respect to how much patients and health plans pay for prescription drugs. PBMs have been greatly criticized for the practices they claim allegedly lower costs, but in actuality may have a detrimental impact on access to medications while also driving up the costs. For example, according to a report by the American Consumer Institute, “consumers are paying more because of higher invoice prices, while PBMs are profiting more because of a surging increase in manufacturer rebates. The rebates are not flowing through to consumers in the form of lower prescription prices.”

The NCPA is alerting the pharmacy community about the deceptive and harmful practices of PBMs by offering a “toolkit” of resources that promotes a cause called “Fight4Rx.” The toolkit includes material that pharmacies can hang in their stores, distribute to customers, and post on their online resource pages in hopes of encouraging patients to join the fight against PBMs and increase awareness about their abusive practices.

Fight4Rx is a national coalition of patients, caregivers and pharmacists concerned with PBMs increasing patients' costs for prescription drugs and decreasing access to the medications they need. The NCPA's goal for the Fight4Rx campaign is to provide a platform for patients and community pharmacies to fight back against PBM abuses and to share their individual experiences of how PBMs have impeded access to therapeutics and forced patients to pay higher prices for prescription drugs. The grassroots project of the NCPA is calling upon like-minded patients and community pharmacy stakeholders who are fed up:

Are you tired of your prescription drug plan limiting your access to the pharmacies of their choice (regardless of YOUR CHOICE?) Are you wondering how obscure Pharmacy Benefit Managers (PBMs) who claim to save you money are raking in exorbitant sums while your costs continue to grow?

Over the past decade, the PBM industry has gotten stronger and more consolidated leaving the market with just three major players – Express Scripts, CVS Health and OptumRx. These three PBMs make up 85% of the market, which hinders competition, increases drug prices, and keeps consumers in the dark about the wrongful conduct of PBMs. As the Fight4Rx platform reported, major chain pharmacy CVS owns the largest PBM, Caremark, and has subsequently purchased Aetna, which is a health insurer. The same is true for other large health insurers and major PBMs. Health insurer Cigna owns PBM Express Scripts and health insurer United Healthcare owns PBM OptumRx. Each company also owns their own mail-order pharmacy and often encourages patients to obtain their medications through the PBM-owned mail-order pharmacy rather than at a local pharmacy.

Critics of PBMs are tired of their exploitation of the lack of transparency and competition, which has ultimately led to reduced choices for consumers and increased costs of prescription drugs. Our firm handles various complex health care litigation and is currently investigating PBM claims on behalf of private and governmental plans. We welcome the opportunity to investigate potential PBM misconduct.

If you have any questions about our firm's health care fraud practice, contact Ali Hawthorne, a lawyer in our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at Alison.Hawthorne@beasleyallen.com.

Source: National Community Pharmacists Association

THE CONSUMER CORNER

Sweeping Overhaul Of Pesticide Regulation Is Proposed

Congressional Democrats on Aug. 4 introduced a bill that would transform regulation of pesticides by immediately banning several chemical classes, adopting European and Canadian standards. This bill would allow local governments to make rules and empower citizens to petition and sue for review. The Protect America's Children from Toxic Pesticides Act would mark the first comprehensive overhaul of U.S. pesticide rules since 1996, according to its sponsors, who say it would force action on substances considered dangerous to health and the environment. The plan would require the U.S. Environmental Protection Agency (EPA) to immediately suspend all pesticides banned in the European Union or Canada. Approvals could only be restored if the foreign government's evidence is found lacking, without consideration of economic cost.

Citizen suits are permitted to enforce several provisions. Any person would be able to sue to force a quick review of a pesticide that has not been evaluated for 15 years. If the EPA does not meet review deadlines, the pesticide's registration would automatically be suspended or canceled. The bill would also limit the EPA's use of emergency exemptions and set up a mandatory national reporting system for injuries and other harm resulting from pesticides, which would trigger additional scrutiny.

In addition, local governments would be allowed to make their own rules and bans on pesticides, which states would be blocked from preempting. Labels would have to be written in the languages spoken by farmworkers. The Democratic plan would immediately ban the herbicide paraquat, which is associated with Parkinson's disease, and two classes of insecticides, organophosphates and neonicotinoids. The latter were linked to bee die-offs. Chlorpyrifos, an organophosphate, was set for a ban during the Obama administration over concerns about children's brain development, but the Trump administration continued allowing it in agriculture. California moved last year to phase it out.

Sen. Tom Udall, D-N.M., in support of the bill, stated:

This bill updates our laws so that they adhere to the science. The United States sprays a total of over a billion pounds of pesticides each year on the food we feed to our children, exposing them to dangerous chemicals linked to brain damage and diseases like Parkinson's. The farmworkers who feed our country face dangerous chemical exposure without recourse to protect their health.

Rep. Joe Neguse, D-Colo., added these timely comments:

For far too long highly toxic pesticides have gone unregulated as the EPA has put the interests of the pesticide industry above the health and safety of people and our environment. As Coloradans and all Americans purchase food, prepare meals for their family and as agricultural workers head to work, they deserve to know their health and safety are not in jeopardy and they are not at risk to harmful toxins.

Their proposal has support from organizations representing farmworkers and environmentalists as well as a Parkinson's advocacy group and organic food producers. Emily Knobbe of the Center for Biological Diversity said that “these long overdue, common-sense reforms will finally ensure that industry profit no longer comes before people's health or our environment.”

The House cosponsors include Progressive Caucus Co-Chair Pramila Jayapal of Washington, Judiciary Committee Chairman Jerry Nadler of New York and Natural Resources Committee Chairman Raúl Grijalva of Arizona.

Without Republican support, which is highly unlikely, the bill won’t become law this year. However, Annie Orloff, a spokeswoman for Sen. Udall, pointed to bipartisan cooperation on related issues, such as the major update in 2016 to the Toxic Substances Control Act. This gives a “sliver” of hope. Ms. Orloff also said that in any event the bill's sponsors would push for approval next year.

Source: Law360.com

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

Beasley Allen has been able to keep things moving during the current pandemic crisis. We are taking care of our clients' cases and their need for justice, and our lawyers and support staff have been hard at work. In prior issues we have included an update on the types of cases that Beasley Allen lawyers in each of our Sections are working on.

The firm operates in four separate Sections with each Section focusing on a specific area of litigation. The four Sections are Personal Injury & Products Liability, headed by Cole Portis; Mass Torts, headed by Andy Birchfield; Toxic Torts, headed by Rhon Jones; and Consumer Fraud & Commercial Litigation, headed by Dee Miles.

This month we are not including the case lists from the Sections. Instead, we are putting the list for each Section on our firm's website, www.beasleyallen.com at the bottom of our homepage, and therefore making the list available. Our plan is to include the lists in the Report at least quarterly in future issues.

Please let us know if you would rather have the Beasley Allen Section case list included in each issue as done previously. We definitely need your input.

Even with the changes required by the coronavirus pandemic, our offices are open. You will have no difficulty getting through to a lawyer in our firm when seeking information or assistance on a specific case. However, in the unlikely event you do have difficulty reaching a specific lawyer (the primary contact for a specific type of case) you can contact one of our four Section Directors and she will promptly put you in touch with a lawyer in her Section who is working on the specific case you are asking about.

The Section Directors at Beasley Allen continue to do a tremendous job for our firm. The Directors are Melissa Prickett, Mass Torts Section; Sloan Downes, Personal Injury & Products Liability Section; Michelle Fulmer, Consumer Fraud & Commercial Litigation Section; and Tracie Harrison, Toxic Torts Section. The directors can be reached at 800-898-2034 or by email at Melissa.Prickett@beasleyallen.com, Sloan.Downes@beasleyallen.com, Michelle.Fulmer@beasleyallen.com and Tracie.Harrison@beasleyallen.com.

Resources to Help Your Law Practice

Beasley Allen has been recognized as one of the country's leading law firms involved in complex civil litigation, representing only claimants. We are both honored and humbled to have received that recognition. Beasley Allen has truly been blessed and we understand the importance of sharing resources and teaming with peers in our profession. The firm is committed to investing in resources, including books authored by our lawyers, to help our fellow lawyers. For those who may be looking to work with Beasley Allen, or simply are seeking information that will help their law firm with a case, the following are among our most popular resources. The names of the books and the authors are set out below.

Aviation Litigation & Accident Investigation

Beasley Allen lawyer Mike Andrews discusses the complexities of aviation crash investigation and litigation. The veteran litigator offers an overview to the practitioner of the more glaring and important issues to be aware of early in the litigation based on years of handling aviation cases. He provides basic instruction on investigating an accident, preserving evidence, and insight into legal issues associated with aviation claims while weaving in anecdotal instances of military and civilian crashes.

Tire Litigation: A Primer

Although tire failures, blowouts and detreads are foreseeable and preventable events, all too often consumers are unaware of the potential dangers from defective, old or degraded tires. Beasley Allen lawyer Ben Baker provides lawyers guidance on evaluating tire litigation and underscores the importance of inspecting the tires of all vehicles involved in a crash.

Nursing Home Abuse & Neglect Brochure

Long-term care facilities, including nursing homes, are rife with abuse and neglect and alarmingly high rates of underreporting. To assist families and lawyers pursuing justice for victims, Beasley Allen has prepared a brochure with information to help identify the signs of abuse and neglect, and advice about how to file a claim.

Co-Counsel E-Newsletter

Beasley Allen also sends out a Co-Counsel E-Newsletter, which is specifically tailored with lawyers in mind. It is emailed monthly to subscribers. Co-Counsel provides updates about the different cases the firm is handling, highlights key victories achieved for our clients, and keeps readers informed about the latest resources offered by the firm.

The Jere Beasley Report

We also consider The Jere Beasley Report to be a service to lawyers as well as the general public. We provide the Report at no cost monthly, both in print form and online. You can get it online by going to https://www.beasleyallen.com/publishing/jere-beasley-report/.

You can reach Beasley Allen lawyers in the four sections of our firm by phone toll free at 800-898-2034 to discuss any cases of interest or to get more information about the resources available to help lawyers in their law practice. To obtain copies of any of our publications, visit our website at beasleyallen.com/publishing.

PRACTICE TIPS OF THE MONTH FOR TRIAL LAWYERS

Trial Tips From Beasley Allen Lawyers

Frank Woodson and Donovan Potter are supplying some trial tips for us this month. Frank, a lawyer in our Mass Torts Section, is currently heavily involved in the ongoing Zantac litigation. Donovan, who is in our Atlanta office is in the Personal Injury & Products Liability Section. First, let's see what Frank has for us and then we will follow up with a piece from Donovan.

Frank Woodson

The Bible contains many parables that were used to teach. Those stories are easily recalled and great methods to teach. The legal profession understands this teaching method and lawyers build a story around the facts of the case to teach the jury or judge. Before becoming a pharmaceutical product liability lawyer with Beasley Allen, I tried many different types of cases. I had a couple of eminent domain cases that are two of my favorites. One with a judge and one with jury.

The strong client

This one reminds me of a story Jere Beasley tells when a client turned down a $10 million offer if they had confidentiality provision. He had a strong client. Same thing happened to me when a client would not cave in to the State of Alabama in an eminent domain case. I tried many eminent domain cases for landowners. Technically we were the Defendant, but I tried them like we were the Plaintiff because we were seeking damages.

However, in one special case I represented a landowner whose property was being taken to construct a new bridge in place of the old one. The landowner asked why her property was “necessary” as the State owned land for the current bridge. The State of Alabama said it was a necessary taking to improve the “impacted area.” We discovered improving the impacted area meant improving a 30-mph curve (two tenths of a mile past the bridge) to a 40-mph curve.

My client did not object to the new bridge or improvement of the curve and she even offered to donate land at the curve so it could be a 55 mph straightaway. The State declined saying it was too far down the road in the process. I advised my client I had never seen a judge rule against the State in an eminent domain proceeding and to consider a resolution after a strong admonishment from the Court. The client stood her ground. We went about trying to prove the taking was unnecessary.

We could not understand why the State turned down our offer of free right of way. During discovery we found out that improving the curve or the impacted area supported the State's request for federal funding, which had been already awarded. The State simply did not want to delay construction and risk losing the federal money already awarded. We found caselaw that the need for federal funding did not support the “necessity” argument. Next, we hired an engineer to advise us on the 10-mph so-called improvement of the curve. Our engineer drew plans showing that he could improve the curve to 40 mph within the current right of way. Again, no land acquisition was necessary to improve the curve.

We tried our case as if my client was the Plaintiff. The court ruled the State did not have the right of eminent domain and we never even reached the issue of damages. Sometimes you get to represent special clients that we, as lawyers, need to listen to and fight for. I did not think a judge would rule against the State no matter what evidence we presented. Oh, me of little faith.

The dirt road case

Lawyers are all taught to know the facts of our cases and out-prepare the other side. In this case, an airport authority was condemning 30 acres from my client for additional right of way. It was undisputed the 30 acres was landlocked with no legal road access or right of way. While we disagreed on the value of the land and both sides' appraisers had very different opinions, the appraisers never testified. The airport authority attorney and his appraiser inspected the property. There was no road out to the property at that time and we had to walk out to it. My client did not have a legal access across the adjoining landowner. In opening statements, the attorney for the State showed the jury photos of the woods walking out to the property and told them we had no road access.

Apparently, the attorney had never seen some photos we produced from years before. They clearly showed a nice dirt road accessing the property and a dirt pit. We contended the property was valuable because it contained sand used in making asphalt. In fact, my client had sold sand from the property for that very purpose. Pretrial motions in limine were denied attempting to prevent us from arguing our theory.

I can only assume the lawyer discounted the theory so much he would not even acknowledge the photos of the nice dirt road going to the property allowing the sand to be mined and removed. Or did he just never see the photos? He told the jury there was no access by road. Big mistake! You could see the reaction from the jurors when I held up the photos of the dirt road and the dirt pit on the property. They were not happy and believed the airport authority was trying to hide evidence. All credibility had been lost very quickly. The case settled after opening statements. Even if you totally discount the other side's arguments, you better address them and not ignore them. And make sure you look at all the evidence – like photos. ■

Now, Donovan will help us in a most important aspect of trial work. Representing a client who has suffered a Traumatic Brain Injury (TBI) presents challenges. Let's see what Donovan has to say on the subject. He will tell us how to handle a case involving a TBI.

Donovan Potter: Evaluating And Prosecuting A Traumatic Brain Injury Case

Whether a person is involved in a trucking accident, a slip and fall, industrial accident or a collision on the athletic playing field or court, there is a potential that he or she may suffer from a head injury leading to a traumatic brain injury (TBI). TBIs vary in severity and are essentially on a continuum ranging from mild concussion symptoms (mild) to prolonged or permanent coma (severe). When evaluating a potential personal injury case, a TBI may not be easily recognizable if you have not handled a TBI case before. Below we discuss the several factors to consider when evaluating a head injury case to determine if it is a viable TBI case.

There are various ways a person can suffer from a traumatic brain injury, such as a blunt, non-penetrating injury, a penetrating injury or a blast injury. The most common of these are blunt, non-penetrating injuries, so we will focus our discussion on this type injury. “Blunt, non-penetrating TBI can result from a direct impact to the head or from rapid head acceleration or deceleration without impact. Brain injury from this mechanism has two phases. The first phase occurs as a direct result of the initiating traumatic event; the second involves a cascade of several neuropathologic processes continuing for weeks to months after the initial injury.[1]

When a person has suffered a head injury, whether mild or severe, there are several physical and emotional symptoms that may be present to look for in order to determine if there is a TBI. Some examples of physical symptoms that may be pertinent are loss of consciousness at scene of accident; dazed or dizziness; complaining of memory problems; trouble focusing/concentrating; blacking out or seizures; problems with coordination of hands, feet or legs; stuttering or slurring of words; changes in sense of smell or taste; double vision; ringing in the ears; headaches, fatigue, sensitivity to bright light and/or loud sounds; and/or tingling or numbness in the legs and arms.[2] Examples of emotional symptoms that may be present are feeling of sadness or depression; crying or weeping spells; suicidal thoughts or intentions; decreased or increased emotion; difficulties sleeping; irritability and feelings of anxiety or fear; and/or aggressive behavior.[3]

Not all of the above symptoms may be present in a patient and/or it may even be too early to tell whether a person will later suffer from any of these symptoms. Usually the more severe TBIs are easily recognizable because the symptoms are usually visible almost immediately after an accident. Mild to moderate TBIs take longer to form, so listening to your client, focusing on his/her medical records, and communicating with the client's treating physicians is important. If you are representing a client, it is important to prepare as much as possible prior to filing suit and engaging in discovery.

It is very important to inquire about the nature of the accident, the speed of vehicles involved and the type of collision if the injury resulted from a motor vehicle accident, witness statements, photographs, video (if captured), and medical records noting the chief complaints and any accompanying physical injuries. Moreover, obtaining the client's medical records (both pre- and post-accident) is very important. Oftentimes, these records are used to diminish the Plaintiff's case.

Prior to discovery and during the litigation process, it is important to establish your client's baseline prior to the subject accident. In order to establish this evidence, you need to seek your client's full medical history (make sure no prior head injuries that would be used by Defense to challenge causation), school records (i.e., test scores, transcripts, diplomas, etc.), military records and employment records. In addition to this objective evidence, it is important to establish your client's baseline and prior history through witness testimony from a spouse, relatives, coworkers, etc. It is also a benefit to provide evidence that your client had a normal social life and did not abuse alcohol or drugs, whether prescription or non-prescription. Demonstrating your client's ability to function at a normal capacity and have an active and successful life would provide benefits in prosecuting your TBI case.

While we briefly touched on obtaining the client's medical records, it is very important to ensure that the medical records include all facts about how the accident happened, all scans and testing, blood and neuropsychiatric. This testing (CT scans, MRIs, EEGs, etc.) will likely reveal any correlation between the subject injury and the damage to the brain. These tests also reveal whether the patient suffered from any hematomas, swelling and/or brain bleeds. Neuropsychology tests will demonstrate how the health of the brain affects a patient's thinking skills and behavior. These tests help doctors look at attention span and how well a patient concentrates on things, how the patient thinks, his or her memory, motor function, verbal skills and problem-solving/decision-making skills.

It is equally important to develop testimony from the client's treating physicians and experts. The treating physicians have the most valuable information as they are the ones that have first-hand knowledge of the client. If the client has suffered a TBI, he or she may have seen a neurosurgeon/neurologist (diagnose the injury and nature of the injury), a neuroradiologist (confirms the findings of testing records), and/or a neuropsychologist (determines whether the injury caused permanent cognitive or memory issues). Each of these experts has a unique expertise and while they overlap, they are very different from one another and serves a different purpose in proving the client's case. Another expert to consider is a biomechanical expert to prove the amount of force imparted on the client's skull/brain in the subject accident.

Understanding your client's treatment and path to recovery, factoring in your client's future medical treatment, will assist in evaluating the case's value. There are varying levels of continued treatment for a patient that has suffered a TBI depending on the severity and the client's specific needs. ■

[1] National Center for Biotechnology Information, “Evaluation of the Disability Determination Process for Traumatic Brain Injury in Veterans: Diagnosis and Assessment of Traumatic Brain Injury,” April 10, 2019, ncbi.nlm.nih.gov/books/NBK542595/
[2] Mayo Clinic, “Traumatic Brain Injury,” < https://www.mayoclinic.org/diseases-conditions/traumatic-brain-injury/symptoms-causes/syc-20378557>
[3] Id.

Overall, these types of cases are complex in nature and require a team knowledgeable in the areas of the law and medicine. Prosecuting these cases is not easy and will require vast amounts of time, energy and expertise to process the information. For more information on these types of cases, contact Chris Glover, Rob Register and Donovan Potter, Sr. in our Atlanta Office at 800-898-2034 or by email at Chris.Glover@beasleyallen.com, Rob.Register@beasleyallen.com or Donovan.Potter@beasleyallen.com.

RECALLS UPDATE

A large number of safety-related recalls were issued in August. However, we are not including the recalls in the Report each month. Instead, we are making all of the recalls available on our website, https://www.beasleyallen.com/recalls/.

You will always find the latest important product recalls on our site throughout the month. This new approach for recalls has been good. You are encouraged to contact Shanna Malone, the Executive Editor of the Report, at Shanna.Malone@beasleyallen.com if you have any questions or to let her know your thoughts.

FIRM ACTIVITIES

Employee Spotlights

Tiffany Birley

Tiffany Birley, who joined the firm in December 2014, is a lawyer in the Mass Torts Section. She is currently investigating cases involving proton pump inhibitors (PPIs). These include the well-known drugs Prilosec, Prevacid and Nexium, and are available both as prescription and over-the-counter drugs. Tiffany is investigating claims of PPI-induced kidney disease, including Acute Interstitial Nephritis (AIN), which is a condition where the spaces between the tubules of the kidney cells become inflamed.

Tiffany is also working on cases involving metal-on-metal hip implants. These cases concern victims of defective hip implants suffering from pain and metal poisoning. Victims implanted with these defective devices often require surgery to remove them.

Prior to joining Beasley Allen, Tiffany worked as a clerk for Montgomery Ciruit Judge Tracy McCooey, a tremendous jurist, who is now retired.

Tiffany was drawn to the practice of law as a profession because she said she “wanted a stable and challenging career.” Her favorite part of practicing law is solving problems and helping people.

The Jacksonville State University graduate earned a B.A. in political science in 2008 before heading to Faulkner University's Thomas Goode Jones School of Law. During law school, Tiffany was an Editor on the school's law review and President of the Student Animal Legal Defense Fund, Jones Chapter. She graduated in May 2012. Since beginning her practice of law, she has been selected to the Midsouth Super Lawyers “Rising Stars” list since 2018. The distinction recognizes the top up-and-coming attorneys – those who are 40 years old or younger, or who have been practicing 10 years or less.

Tiffany says Beasley Allen is unique because it operates as “essentially four separate firms,” with its structure of Sections handling Fraud, Personal Injury & Products Liability, Mass Torts and Toxic Torts cases. She notes that this allows the firm to “better address the type of cases it handles.”

Away from the office, Tiffany is actively involved with PAWS of Alabama, a non-profit, no-kill rescue based in Montgomery, Alabama. She lives in Pike Road with her husband, Jimmie, their cats, Oliver and Jack, and dogs, Dexter and Josie.

Tiffany is a hard-working lawyer who does excellent work for her clients. She is dedicated to see they obtain justice in their cases. We are fortunate to have Tiffany with us.

Debbie Cunningham

Debbie Cunningham, the Legal Secretary to Gibson Vance, has been with the Firm for 12 years. She is also an Assistant in the firm's Marketing Section. Debbie supports Gibson and the Marketing Section in a wide variety of projects. Her responsibilities include daily administrative functions, helping with the firm's Marketing database and updating and maintaining weekly and monthly reports.

Debbie has been married to her husband, Jeff, for 34 years. They have two children, Erin Gibbons (32) and Nicholas Cunningham (30). Debbie says they also have two fur-babies, Max and Smee. Debbie comes from a somewhat large family and has five siblings who all live in or around the Chesapeake, Virginia, area, which is where Debbie is from originally. Debbie says they are a very close-knit family.

In her free time, Debbie loves to travel with her husband. While they don’t get to travel a great deal, they try to travel somewhere interesting at least once or twice a year, even if it's just a long weekend!

When asked what her favorite thing is about working at Beasley Allen, Debbie says, “there are several reasons I love working at Beasley Allen, but my favorite thing is the opportunity to learn something new and grow with the Firm.”

Debbie is a hard-working and dedicated employee, who does excellent work. She is a tremendous asset to the firm. We are fortunate to have Debbie with us.

LaSonya Lucas

LaSonya Lucas, a Legal Assistant in the Mass Torts Section, has been with Beasley Allen for 15 years. She works with Joseph VanZandt and Sydney Everett and she is currently working on the JUUL Litigation. That is a major project for the firm.

LaSonya is married to Tyrone Lucas and they have been married for 11 years. They have two handsome boys, Lathan (9) and Teagan (6). Lathan and Teagan play baseball and basketball and are a part of the Elev8 Youth Ministry at their church. They attend Wilson Elementary where Lathan will be a fourth-grader and Teagan will be a first-grader.

LaSonya's family does a lot with their church, True Divine Baptist Church, where LaSonya volunteers in the Nursey and Membership Ministry. LaSonya's family also enjoys road trips and spending time with their family. She is originally from Tallassee and attended Troy University where she received a Bachelor's Degree in Human Resource Management.

When asked what her favorite thing is about working at Beasley Allen, LaSonya says, “there are so many great things I can say about working here. It has been a blessing to be a part of the Beasley Allen Law Firm for 15 years.”

LaSonya, a hard-working and dedicated employee, does excellent work and is definitely an asset to the firm. We are fortunate to have LaSonya with us.

Candice Wyatt

Candice Wyatt, a Legal Secretary in our Personal Injury & Products Liability Section, has been with the Firm for 18 years. Candice is responsible for assisting Parker Miller in our Atlanta office with various job duties such as helping with meetings, hearings, and trials. Candice is also responsible for setting up depositions with court reporters and arranging locations.

Candice and her husband Travis have been married for 16 years. They have two daughters, Kaileigh (20) and Kennedy (15). Kaileigh is a Junior in college and Kennedy is a Junior in high school. Travis and Candice went to high school together, but met when they both worked at Fantail. Candice says that Travis is a wonderful husband and father and is an extremely hard worker.

In her spare time, Candice enjoys spending time with her family, reading books and planting flowers. When asked what her favorite thing is about working at Beasley Allen, Candice says, “that's really hard to say because I have many things I really like about BA. If I had to pick one, it would be that I enjoy being around my co-workers. I am truly blessed to work with such great people!”

Candice is a hard-working employee who is dedicated to seeing that justice is served in the cases she works on behalf of clients. She is an asset to the firm. We are fortunate to have Candice with us.

Beasley Allen 2020 Summer Law Clerks Put Knowledge into Practice

Like many large law firms, Beasley Allen enjoys providing a number of law students with the opportunity, as law clerks, to gain first-hand exposure to the everyday practice of law. We had an exceptional group this summer. We are convinced that working at Beasley Allen allows the law clerks to learn a great deal about the legal profession, make professional contacts in their chosen field and gain valuable skills to transition from the classroom to the courtroom.

While many firms have been forced to reduce or even suspend their summer law clerk programs, we are blessed that Beasley Allen was able to maintain its summer law clerk program even during this time of uncertainty.

Stephanie Monplaisir, a lawyer in the firm's Personal Injury & Products Liability Section, oversees and organizes the firm's internship program. She does a tremendous job in that capacity. To read more about the law students we were pleased to host this summer, visit our website at beasleyallen.com/news/law-clerks-put-knowledge-to-practice.

Join Me In Supporting The American Cancer Society

This year I will have the distinct honor of serving as the official guest speaker for CURE! Vision 2020, a virtual event benefiting the American Cancer Society. Folks can register to participate in a fun and informative evening including other guest speakers, a silent auction and a live auction.

The event also will honor Mia Mothershed, a longtime supporter of the ACS. She serves as a board member for the organization, working to make sure that all of the communities in our region are aware of the services provided and research done by the American Cancer Society.

I am eager to share my own story of success against cancer, and encourage others to create a healthy community. It's always a pleasure to work with the good people at ACS. It is our hope that one day we can together put an end to cancer.

The virtual event is set for Thursday, October 8, at 6 p.m. Although it’s virtual, you’ll need to preregister. Visit the event registration page at acsmontg.ejoinme.org/cure for more information and to sign up! It promises to a fun time and do a lot of good!

SPECIAL RECOGNITIONS

Making History: Methvin Brothers Lead The Alabama State Bar

How does it feel to be a part of history? It's a question Beasley Allen's Managing Attorney Tom Methvin and his brother, Bob Methvin are now thinking about. When the Alabama State Bar (ASB) held its annual meeting in July, Bob, whose practice Methvin Terrell Attorneys is based in Birmingham, was sworn in as President. It's an office his older brother, Tom, held from 2009-2010, making them the first brothers to hold the ASB's highest office in the organization's 141-year history.

It seems quite appropriate that the Methvins would make this mark, as their family has a long history of public service, with family members serving as public officials, judges and lawyers for generations. Their great-grandfathers and grandfathers were lawyers and judges. Mary Lindsey Hannahan, the daughter of younger sister Lindsey Hannahan, is a lawyer in Nashville. Tom's two sons, Rucker and Slade, are both in law school.

Bob observes: “I think the practice of law is in our blood. It's a family profession.” Tom adds, “There have been a lot of families in Alabama who have had a lot of lawyers through the generations. It is amazing that there have never been two brothers as President. Lawyers render service and provide leadership so I’m proud that our family can be involved in this way.”

Alabama State Bar Executive Director Phillip McCallum, who has known the Methvin brothers for a number of years, noted:

We have never had two brothers serve as President of the Alabama State Bar in our organization's history, but if you know Bob and Tom, you wouldn’t be surprised that their zealous passion to serve their profession and their community elevated both of them to this role. I know from personal experience, being a Bar President can be a large and often thankless job. Lawyers in Alabama should be thankful for the strong leadership Tom provided and the vision Bob has for the Bar.

The Methvin brothers credit their parents, Bob and Claudia Methvin, with instilling in them a deep appreciation for helping the less fortunate and giving back to their communities, which they feel influenced them to become leaders in their profession and developed their desire to help guide the efforts of the Bar. Both Tom and Bob say their parents taught them to lead by example. Bob reflects:

My brother, sister and I have always been very close. Tom focused on pro bono services when he was President and that's one of my initiatives as well. This carries on our parents' legacy. My mother, especially, when she wanted to help the less fortunate, she would put us kids in the car with her and we would watch and help. She truly led by example. She didn’t really mention it to anyone, she just went out and did the work. This set us on the path to look for ways to help others.

Bob Methvin also is an historic ASB President in another way. Due to the coronavirus pandemic, he was sworn in during a virtual meeting, in the chambers of the Alabama Supreme Court. It is the first time the Bar has ever held its annual meeting this way. Even through both World Wars and a Great Depression, the Alabama State Bar had prior to this one always had an in-person annual meeting. “It's funny how life gets in the way of what you think are the best-laid plans,” Bob says.

Each Bar President sets out a course for his or her year in office, with goals to direct the membership to continue and enhance the Bar's motto of “Lawyers render service.” Bob says his initiatives changed a bit in light of the pandemic, and also in recognition of the social unrest around racial inequity the nation is currently struggling to address.

Bob has set out three main tenants for his year – Unity, Helping Lawyers Adapt to the “New Norm,” and what he calls “Lawyer PR,” which is a focus on how lawyers can and do give back to their communities. The following is a brief summary of each.

Bob has created a Presidential Council on Unity and Diversity, whose members will help build a diversity and inclusion task force to gather information on things the Bar needs to act on and create plans for action. “My goal this year is for the ASB to engage, listen, learn and grow together,” he says. “Racism, inequality and unfairness have no place in our justice system. Those concepts are an affront to human dignity and run counter to the mission of the ASB.”

Being President in the time of the pandemic has led to Bob's reflection on what it means to practice law in a “new norm” of social distancing and virtual practice – hammered home by his unusual inauguration. He believes the change is here to stay for a while. Bob is examining ways to help lawyers deal with this new reality, and help them stay mentally and physically fit to be better able to care for their clients and the public.

It is his third initiative, the area of Lawyer PR, that Bob says is most near and dear to his heart, focusing on helping others. As his brother Tom noted during his time as Bar President, lawyers have a unique ability to provide services that nobody else can. If they don’t help, who will? As such, pro bono service is a big part of this initiative – providing legal services at no cost to those who might not otherwise be able to afford it.

As part of this prong, Bob also is creating two new programs to address immediate and emerging concerns. The firm, Helping Heroes in Health Care, will provide free legal work to frontline medical personnel who have given so much to our state during the pandemic. The special program, Lawyer Voices for Survivors, is an anti-human trafficking task force to provide free legal services to survivors of human trafficking. Bob also hopes to raise public awareness of this enormous problem that many people do not even realize exists in Alabama.

“I’m personally very proud of Bob and what he's done,” Tom says of his brother. “Bob's a natural-born leader, a consensus builder and a brilliant lawyer. He has a very kind heart and is very compassionate. For a time such as this, we need him as President of our Bar.”

The sentiment is echoed by Phillip McCallum, who says, “Whether it's in small conversations, at meetings or through serving in various volunteer capacities for the Bar, it is easy to hear Bob's heart for lawyers in Alabama.”

Donovan Potter Selected For GTLA 2020-21 LEAD Program Class

Donovan Potter, a lawyer in our Atlanta office, was selected in July to be a part of the Georgia Trial Lawyers Association Leadership Education & Advanced Direction (LEAD) Program, class of 2020-21. The program, now in its eighth year, identifies members as leaders and provides training to equip them with the necessary tools to take the next steps in their legal careers and in the organization. Donovan was one of 18 lawyers selected to participate in the 2020-21 Program.

In a news release, Lyle Warshauer, President of the Georgia Trial Lawyers Association (GTLA), had this to say:

The GTLA LEAD program is one of the single-best sources for identifying and honing the talent in our association. These 18 attorneys were chosen from one of the most competitive selection processes in the program's history, and I know that they will uphold the successful legacy of the LEAD program as they work toward becoming the future leaders of our association.

The GTLA LEAD Program consists of qualified applicants with less than 10 years of legal practice experience or those who are 35 years of age or younger. The 2020-2021 LEAD Program will feature six sessions, which kicked off at the end of August and concluding with graduation at the GTLA Annual Convention & President's Gala in the Spring of 2021.

The new class represents 12 different cities across Georgia and covers a wide range of practice areas. Founded in 1956, the Georgia Trial Lawyers Association is dedicated to strengthening and upholding Georgia's Civil Justice System and protecting Georgia citizens' Constitutional Right to Trial by Jury.

FAVORITE BIBLE VERSES

Merritt Hays, a Legal Assistant in our Mass Torts Section, furnished three verses for this issue. She had this to say:

“Looking back on life I can see so many ways God has been working in my life. There were many years that I had a troubled heart and I could see that I was in the middle of a spiritual war. During those dark times in my life, I knew that God was my anchor! Through all the storms, God continued to bless me and my family. As I grow older and wiser, it is easier to look back and see that after each storm passed, there was sunshine and a rainbow. The following are a few scriptures that helped me through those stormy times.”

Finally, be strong in the Lord and in the strength of his might. Ephesians 6:10

For the Lord your God is he who goes with you to fight for you against your enemies, to give you the victory. Deuteronomy 20:4

Have I not commanded you? Be strong and courageous. Do not be frightened, and do not be dismayed, for the Lord your God is with you wherever you go. Joshua 1:9

Helen Taylor, Public Relations Specialist at Beasley Allen, sent in two verses this month that she says have helped her mightily. She says: “I wouldn’t have made it through the past 18 months without these two.”

Fear thou not; for I am with thee: be not dismayed; for I am thy God: I will strengthen thee; yea, I will help thee; yea, I will uphold thee with the right hand of my righteousness. Isaiah 41:10 KJV

And this is the confidence that we have in him, that, if we ask any thing according to his will, he heareth us: 1 John 5:14

Julie Dame, an Accounting Clerk II in our Accounting Section, also furnished one of her favorite verses. Julie says: “A favorite verse because I am going THROUGH and it's only shadows. Shadows can’t hurt you! Meditate on the Work, focus on the positive in all situations. Don’t let the negative spook you! Keep your eye on what's ahead. You are coming out and you will be the victor!”

Casting all your care upon him; for he careth for you. 1 Peter 5:7

Julie says:

“He does! And he cares about the small stuff. I had a favorite robe for about 12 years. Long green chenille with the ties attached to the robe. Old and fraying, the robe was ripped beyond repair during an encounter with my drug addicted husband. The marriage was also ripped beyond repair that evening and life got very confusing as I made decisions for myself and my children. Lots of cares came blasting at me and there was a lot of casting of cares as I let go of life as I knew it. One day several weeks after the event, my husband's step father came to the house and brought me a box of goodies someone had given him and in that box of goodies was a robe, brand new, still in the package and it was just like the ruined favorite, only pink and a much better fit. It was a gift from God as no one knew about my robe. With that gift from God, I knew He was watching over us and that even the small things matter to Him.”

Julie also furnished Psalm 23:4, another favorite:

Yea though I walk through the valley of the shadow of death, I will fear no evil; for thou art with me; thy rod and they staff comfort me. Psalm 23:4

CLOSING OBSERVATIONS

Work In The Time Of Quarantine – How COVID Has Changed The Workplace At Beasley Allen

“At the moment when the benefit becomes more visible than the technology is when a technology succeeds.” Josh Bernoff, Principal Analyst, Forrester

Just a few short months ago, doing business at Beasley Allen was very different. Nobody thought twice about a handshake. Travel was a regular part of our work, meeting with clients, taking depositions, consulting with co-counsel. Trial teams packed into “war rooms” to pore side-by-side over documents and testimony, and juries assembled to hear cases and deliberate verdicts. The business of law was very much face-to-face.

The pandemic changed all that and forced us – along with the rest of the world – to get creative in approaching how we work. I’m sure every profession feels the impact in its own way, and it's true that there were unique challenges facing how we practice law. It doesn’t seem these challenges will go away anytime soon, as we all adjust to a “new normal.” We are all on this roller coaster together as we navigate what is “safe,” and how to carry on.

It's been a challenge from the start, with lots of different information and opinions being delivered from our local, state and national governments. Should we quarantine? Can we practice social distancing while staying in the office? When does it become necessary to close our buildings and ask people to work from home, and how long do we need to prepare for this to last? This is unprecedented.

On the frontline fielding these and so many other questions for Beasley Allen at the start of the pandemic was our team of talented Directors. These professionals work with our Section Heads to help guide the daily operations of the Firm – Michelle Fulmer is Director for our Consumer Fraud & Commercial Litigation Section, and also Operations; Sloan Downes is Director of our Personal Injury and Products Liability Section; Melissa Prickett is Director for the Mass Torts Section; Tracie Harrison is Director for the Toxic Torts Section; Michelle Parks is Director for Accounting; and Kimberly Youngblood is Director of Human Resources, the IT department and Marketing. They all worked together with Tom Methvin, the firm's Managing Attorney, along with the executive board and board of directors, to plan a course through these “uncharted waters.” Collectively, all of the above have done a tremendous job in “uncharted waters.”

As HR Director, Kimberly Youngblood communicated the plan to the firm's employees, and helped disseminate information to keep people up to date on a constantly changing situation. Kimberly, who is extremely talented and dedicated to meeting the challenges of her job, says,

HR is supposed to be the ‘answer person.’ At the beginning it was very chaotic, just trying to determine if we could keep people in the office, let people go home, or make people go home. We were watching what the governor is saying, what the mayor is saying, and looking at what our colleagues are doing. How are other firms handling this? The hardest part was knowing when to pull the trigger. The not knowing put employees on edge, and they look to HR to guide them, and to make these decisions. One case is all it would take for me to be wrong. It's challenging.

Once the decision was made to move the bulk of the workforce to telecommuting – working at home – another set of challenges emerged. First of all, not all jobs can be done remotely. Issues to think about include mail delivery, UPS, FedEx – mailing and receiving checks to keep the business operating. There also are issues of security, confidentiality and timeliness. Statute of limitation keep running for claims, mindless of a pandemic. Also, some people are technologically challenged – they could work from home, but they don’t necessarily know how to operate technically to accomplish that. How do we support them while trying to minimize their stress from another thing to worry about?

As Director of both HR and IT, Kimberly was in a unique position to address the challenges of figuring out how to move a workforce off site while keeping them connected to each other and critical resources to do their jobs. She says:

Beasley Allen was actually ahead of the game in many areas of technology. Most lawyers already had laptop computers and docking stations that allowed them to work remotely while traveling for work or at trial. They had email on their laptop and knew how to log into a remote desktop to access files on our secure network. Beasley Allen already had many remote servers to facilitate this, so it was more a matter of adding to these existing resources to support more users when support staff joined the network of those now tasked with working from home.

Parker Miller, a lawyer in our Personal Injury & Products Liability Section, says he felt prepared for the technical challenges of remote work. He already had some experience with it when he moved from our Montgomery office to the Atlanta office. Parker says:

What's interesting is that having moved up here from Montgomery I already had to come to grips with knowing my paralegal and secretary wouldn’t be here with me. So a while ago I transitioned from paper files to doing most everything electronically. Probably the first month being in Atlanta, I worked that way. So I felt like I was prepared more than most.

Parker now does court hearings by video conference and is easily able to participate in virtual seminars. He has used Zoom for almost all his depositions and says he's found it to be seamless. In fact, he finds it even more convenient to be able to prepare ahead, to zoom in on documents and annotate what he wants to emphasize. He has even had a teleconferenced oral argument before the 2nd Circuit Court of Appeals in New York.

Greg Allen, our lead Products Liability lawyer, says he has been pleasantly surprised by how much he enjoys conducting depositions using videoconferencing. He has used Zoom, WebX and Microsoft Teams since the pandemic began, and finds all of them have worked well. Greg says:

Using Zoom, we were able to take depositions in Louisiana, Texas and Arizona all within half a day. We can see the witnesses and they can see us. We’re able to show documents, and I can share my screen. If I can do it, anyone can do it. Overall, it's great. When the deposition is over, you don’t even have to leave your office. You don’t have to get on a plane, don’t have to worry about being exposed to the virus.

Necessity provided the needed push for some folks to learn how to use technology, and also has accelerated adoption of new technology. Kimberly notes:

I think this whole thing has opened some eyes to being able to adapt to new technology faster. It would have taken us years to get them to adopt some of these changes, but now they feel right on time. Now people think ‘how did I live without this?’ Now that we are being forced to come up with solutions and they need it, they are finding ‘oh wow, this does make it a little easier’ where before they didn’t think they had time to get out of their comfort zone and learn something new. That makes our job easier on the IT side because the willingness to adopt that technology is half the battle. Some lawyers who were already pushing for some of this technology to do depositions remotely, and share documents remotely, now they have the support to have these programs adopted and implemented. Necessity.

While he is definitely enthusiastic about the technology, Greg is a little more concerned about how some of the other parts of the legal process will work, particularly jury trials. He says:

How do you try a jury trial? How do you get jurors to the courthouse? Will they even come? When they are there, how do you segregate them and keep them safe? I don’t know how it's going to turn out – I really don’t. But we’ve got to have jury trials. That's basic to the constitution. The backlog is going to be huge.

Parker echoes this. Not having a trial date, he says, changes the dynamic of the case. He explains:

I think litigation is different than other professions in that the most important component of a case is the trial date. And trials have all been continued and stayed in anticipation of resolution of COVID-19. You take that resolution away, it can have a significant impact on cases that are in litigation. There's a lot of things lawyers can do remotely quite efficiently – phone, Zoom – everything but the jury trial. The resolution process – the jury trial – is so fundamental to the function of our society.

The handling of jury trials is among the many questions that remain to be answered in the legal world, but there is no doubt that an answer will have to be created. It does not appear that things will return to “normal” anytime soon. In fact, the question now is, should they as it relates to the workplace? Many people are discovering they like working remotely. Greg says:

Even before the coronavirus I was trying to not travel as much, and for the last several years I’ve been using video conference. It seems like we always had a problem sharing documents and it never quite worked like we wanted. But now doing it with these other techniques, it works better than video conference facilities and the witness doesn’t have to travel to video conference facilities to sit in front of court reporters and videographers. I hope courts allow remote depositions going forward. Even from the perspective of pollution, air travel, they ought to come into the modern age and let us continue to do depositions this way.

Parker says he enjoys the flexibility offered by working from home, but also appreciates that he has a designated space in his home for his office, which he says allows him to keep work and family life separate. Parker says:

I know from experience traveling while working on the BP Oil Spill litigation a few years ago that I can accomplish a lot when not in the office, away from distractions. At home, I can have a space where it's quiet and I can focus, and I don’t mind working long hours to finish a brief or other task, because I can take a break and bound up the stairs to visit with my wife and children (ages 1 and 5). Later, I can return to work and finish what needs to be done.

The key is, I think in some ways, COVID is going to give us the ability to be more flexible in a profession that is yearning for flexibility. Life is complicated and so is the practice of law. Being home and able to go upstairs for five minutes and hug my kids, my wife, then go back to work, was a huge stress reliever for me. This was such an opportunity. I view our firm as different – we should be a leader. It's an opportunity for us to lead and show all of this can work. Our profession has one of highest suicide rates in the country. Anything we can take from this to make lawyers and staff happier to come to work and in their lives and what they do – that's only going to improve what we do.

The transition of the workforce from the traditional office space also is proving beneficial to businesses, but, again, that comes with a new set of challenges. Kimberly notes that many employees share Parker's experience of being more productive away from the distractions and interruptions of the office. Also, she says it opens up the possibility of hiring talent who can work anywhere – they don’t necessarily have to relocate to an office in a particular city. There are cost savings, too. Businesses can save on office space, parking and other expenses involved in maintaining a traditional office.

But it's not a one-size-fits-all by any means. There are employees who prefer seeing and talking to co-workers in person, or who need the type of mentorship that comes from day-to-day face-to-face relationships with co-workers and supervisors. Some managers who are used to and prefer the traditional office structure will have to rethink how they measure productivity and work.

But, whether we want it or not, Kimberly says it seems apparent things will be different. She feels the workplace will evolve into a hybrid of sorts, with more people working from home, others working flexible schedules where they come into the office some days and work from home others, where there are flexible office spaces shared by teams that come and go, rather than designated offices. She says:

I don’t think it's ever going to be the same way again. Honestly, the question now is how do we take the firm to the next level? I feel some of this will help us propel to our new future, where the old normal isn’t going to survive. We have to revolutionize the workplace. COVID has just accelerated what was already happening. Tech companies that were on the cutting edge have already been doing this. The better we adapt and move forward we can transform the way a law firm works.

There is one thing for certain – everything has changed because of the pandemic and its effect on every phase of our lives, which includes the workplace. With God's help, we at Beasley Allen will make things work so that justice will be served and our clients' cases and their interests protected.

Our Monthly Reminders

If my people, who are called by my name, will humble themselves and pray and seek my face and turn from their wicked ways, then will I hear from heaven and will forgive their sin and will heal their land.

2Chron7:14

All that is necessary for the triumph of evil is that good men do nothing.

Edmund Burke

Woe to those who decree unrighteous decrees, Who write misfortune, Which they have prescribed. To rob the needy of justice, And to take what is right from the poor of My people, That widows may be their prey, And that they may rob the fatherless.

Isaiah 10:1-2

I am still determined to be cheerful and happy, in whatever situation I may be; for I have also learned from experience that the greater part of our happiness or misery depends upon our dispositions, and not upon our circumstances.

Martha Washington (1732 – 1802)

The only title in our Democracy superior to that of President is the title of Citizen.

Louis Brandeis, 1937
U.S. Supreme Court Justice

Injustice anywhere is a threat to justice everywhere.

There comes a time when one must take a position that is neither safe nor politic nor popular, but he must take it because his conscience tells him it is right.

The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people.

Martin Luther King, Jr.

The dictionary is the only place that success comes before work. Hard work is the price we must pay for success. I think you can accomplish anything if you’re willing to pay the price.

Vincent Lombardi

Kindness is a language which the deaf can hear and the blind can see.

Mark Twain (1835-1910)

“I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country… corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed.”

U.S. President Abraham Lincoln, Nov. 21, 1864

In his December 1902 State of the Union address, Theodore Roosevelt said of corporations: “We are not hostile to them; we are merely determined that they shall be so handled as to subserve the public good. We draw the line against misconduct, not against wealth.”

The ‘Machine politicians’ have shown their colors… I feel sorry for the country however as it shows the power of partisan politicians who think of nothing higher than their own interests, and I feel for your future. We cannot stand so corrupt a government for any great length of time.”

Theodore Roosevelt Sr., December 16, 1877

“The opposite of poverty is not wealth; the opposite of poverty is justice.”

Bryan Stevenson, 2019

PARTING WORDS

The Capital City Must Not Continue To Fail Our Children

Where I live and where Beasley Allen's home office is located, in Montgomery, Alabama, there will be a critical local issue on the ballot on voting day, Nov. 3, in addition to the national imperative. Montgomery County voters will be asked to support a property tax increase to fund our public schools. This increase is badly needed and long overdue. To say that we have neglected the public school system in Montgomery County is actually a gross understatement. We can no longer allow that to happen. I will give a brief summary of what is coming and soon.

Montgomery County's ad-valorem tax rate is currently 10 mills – the federal minimum. The increase would raise the tax rate by 12 mills. Montgomery Public Schools (MPS) estimates this would generate about $33 million for the school system, and the average family would pay only about $12.75 more per month in property taxes.

Students in neighboring Pike Road and Auburn receive more than twice what we provide in Montgomery. Our schools are in the bottom quartile in the state, while their schools excel. Our failure to fund public education has dire repercussions for our children and our community, both socially and economically. In fact, our failure to have a first-class public school system in the Capital City reflects poorly on the entire state. Funds are desperately needed by Montgomery Public Schools for resources for teachers and aides; to address deferred maintenance projects across all 51 schools in the system; and to facilitate programs that will increase student achievement.

Simply put – we have neglected the public schools in the county that is home to the Capital City of Alabama and that is an undisputed fact. The time has come to get behind the public schools and passing the tax increase is an absolute necessity. I implore Report readers in Montgomery County to do the right thing for all our futures, support the tax increase, and vote for it.

The Capital City should be a beacon of light for all to see and the time has come to make that light reflect a first-class public school system. We cannot afford to lose the vote on Nov. 3. The economic and social future of Montgomery County, including the Capital City, depends on this vote.