The Jere Beasley Report January : 2020

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CAPITOL OBSERVATIONS

Reflection On Our 40th Anniversary As We Enter 2020

Throughout 2019, we celebrated our firm’s 40th Anniversary. Looking back on the 40 years Beasley Allen has been dedicated to helping those who need it most, it’s humbling to see how our firm has grown and prospered. I recall shortly after starting the firm in January of 1979, my wife Sara asked how many lawyers I thought I would end up with in the firm. I said I didn’t think I would ever have more than five. I was wrong!

Today, we have 85 lawyers in two locations – Montgomery and Atlanta – and more than 200 support staff including full-time nurses, investigators, computer specialists, technologists, a marketing department and a comprehensive trial graphics team. I am proud to say that Beasley Allen is one of the country’s leading firms involved in civil litigation, representing hundreds of thousands of people, not just in Alabama and Georgia, but across the entire country.

We have helped thousands of clients receive justice. The jury verdicts included an $11.9 billion punitive damages award against ExonMobile Corp., – the largest verdict against an oil company in U.S. history – for underpaying the State of Alabama royalties on natural gas in the Mobile Bay field; and a $4.85 billion verdict – the largest pharmaceutical drug settlement in U.S. history – against Merck & Co., over claims its anti-inflammatory drug Vioxx caused heart attacks and strokes.

It is gratifying to know that in so many cases and so many instances, we have made corporate America do things right when they were doing wrong, cutting costs and hurting people. In our work, we often talk to people who are going through one of the worst times of their lives. They are often up against a huge foe, a company with seemingly endless resources to fight back. I am most proud of our ability to help our clients bring their battles into the level playing field of the courtroom, where everyone has a chance at obtaining real justice.

I also know that we couldn’t do what we do without the tremendous work of all the people who put their time and dedication into this work. It has definitely been a team effort, making sure we do everything we can to meet the needs of our clients. Our lawyers and support staff work tirelessly to ensure every client has a fair chance in the courtroom.

It’s also been a fun year, celebrating our history. We kicked off in January with a ribbon-cutting that spanned down Commerce Street with all our lawyers and staff taking part. We’re proud to have been a part of the fabric of this Montgomery community for so many years. It’s exciting to see our Atlanta lawyers making themselves at home there as well. Giving back is an important part of who we are.

Throughout the year, our talented Human Resources team has kept the party going, with special activities, prizes, events and activities for the staff. Now we fix our eyes on the challenges that lie ahead in 2020, and in the next decade. We will continue to look for opportunities in the courtroom and the community to continue “helping those who need it most.”

I know, with the team we have built, Beasley, Allen, Crow, Methvin, Portis & Miles will continue to fight against those in Corporate America who put profits over the welfare of people for the next 40 years, and beyond. We will continue to do our work – do it the right way – and for the right reason.

UPDATE ON THE BOEING LITIGATION

Is The FAA Reclaiming Authority?

While Boeing still appears more focused on profits than human safety, pushing to return its fatally flawed 737 MAX to the skies quickly, the Federal Aviation Administration (FAA) appears to have reclaimed some of its authority. Its recently appointed Administrator, Stephen Dickson, has repeatedly told the media and stakeholders that the agency will return the 737 MAX to service only when the agency is satisfied with the assessment of Boeing’s proposed software updates and the availability of appropriate pilot training, AINonline reported. Administrator Dickson also told the Wall Street Journal he would like to overhaul the aircraft certification process, which has been subject to significant global scrutiny following the two deadly crashes involving the 737 MAX aircraft.

Plagued with problems throughout the last year since the first fatal crash, fixes for the aircraft’s software, which investigators believe to have caused the two crashes, have been delayed numerous times. The latest delay occurred after FAA and European Union Aviation Safety Agency (EASA) regulators rejected Boeing’s documentation regarding its latest proposed software fix, according to Reuters. The software documentation audit “flagged a number of issues” prompting officials from the two agencies to request the information be conveyed in a different form. The audit must be completed before the process can proceed. Additionally, a certification test flight must still be conducted successfully.

Regulators and Boeing are also still at odds over new training for 737 MAX pilots. Boeing claims no simulator training is necessary and that only new, additional computer-based training will suffice. Regulators, especially those outside of the U.S., believe computer-based training, like original MAX training, is inadequate and may condition approving the MAX recertification upon mandatory simulator training for pilots flying the MAX in their respective countries. For example, India’s Directorate General of Civil Aviation (DGCA) plans to mandate that Boeing set up simulators for airlines to conduct comprehensive pilot training before the regulator allows MAX aircraft to resume service in the country, Reuters reported. Such a mandate will cost Boeing additional time and money because there are few MAX simulators worldwide, USA Today reported.

Back in the U.S., the FAA in December issued updated requirements for the MAX’s Master Minimum Equipment List. The list details conditions when aircraft can continue to fly under a variety of malfunctions, Bloomberg reported. Initially, the MAX could still fly in certain circumstances and for brief periods of time if one of the aircraft’s two flight-control computers wasn’t functioning. Now that Boeing is changing the software that operates the flight-control systems so that the computers continuously monitor each other, regulators insist a MAX aircraft cannot fly with only one functioning flight-control computer. The proposed rule changes are also subject to a 30-day public comment period that, depending on the amount of public comments, could keep the aircraft grounded longer.

During a speech to the Aero Club of Washington in November, Administrator Dickson said, “When we finally make the decision to return this aircraft to service, it will be the most scrutinized aircraft in history. It will also be one of the safest machines to ever take to the sky.”

FAA top regulator testifies before Congress

Last month, the top aviation regulator testified for the first time before Congress in his new role and in what was the fifth congressional hearing over the Boeing 737 MAX debacle. During the hearing, Administrator Dickson was questioned about the role his agency played in certifying the fatally flawed aircraft including new information regarding the FAA’s Taram, or Transport Airplane Risk Assessment Methodology, of the first tragic MAX crash involving Lion Air flight 610.

Ahead of the hearing, the Wall Street Journal revealed that analysis described in the Tarem predicted that the aircraft could experience as many as 15 similar catastrophic crashes over its lifetime. The safety risk was greater than Boeing or the FAA indicated to the public at that time, yet the agency agreed to keep the MAX in service. The agreement was conditioned upon an MCAS software update Boeing promised to implement within seven months of the Lion Air crash and the company reiterating how airline crews should respond in the event of a similar MCAS misfire. Unfortunately, in less than five months, a second deadly crash claimed more lives, a combined total of 346 lives needlessly sacrificed.

After only two years of service, the MAX’s safety record “amounted to two catastrophic accidents for every million flights” based on estimates of unofficial data by industry officials, the WSJ reported. Previous iterations of the 737 aircraft had a safety record of one fatal crash for every 10 million flights. The drop in the safety record also falls dismally lower than that of other Western-built jets, the WSJ noted, which is “one fatal crash for approximately every 3 million flights.”

Alan Diehl, a retired FAA and Pentagon air safety official, told the WSJ that the potential for 15 crashes of the MAX “would be an unacceptable number in the modern aviation-safety world.” Diehl was not involved in the MAX certification process.

The Tarem strengthens the argument that the relationship between the FAA and aircraft manufacturers, including Boeing, which is one of the largest in the world, is far too cozy. As discussed in a previous issue of this Report, years of deregulation, which has become even more aggressive under the Trump Administration, combined with significantly limited funding and, until recently, the failure to appoint an FAA administrator, forced the agency to rely more on aircraft makers, especially in the process of certifying the safety of the aircraft. This reliance left the FAA vulnerable to the aviation industry’s significant and high-dollar lobbying efforts.

Still, Administrator Dickson reassured lawmakers that the MAX would not be recertified until all safety issues were addressed and pilots receive the training they need to safely operate the plane. In an outright rejection of claims by Boeing CEO Dennis Muilenburg that the plane would be flying again by the end of the year, Administrator Dickson insisted that the aircraft would not be recertified this year. In November, he encouraged FAA staff to take their time in assessing the aircraft.

Further, Administrator Dickson confirmed that the agency would not delegate any part of the recertification process to Boeing, not even the airworthiness of each aircraft. The self-certification process used in the past by the agency allowed aircraft makers to certify much of their own products through the Organization Designation Authorization (ODA) program, which has garnered significant criticism in the wake of the MAX tragedies.

When pressed by lawmakers, Administrator Dickson refused to elaborate on changes to the certification process or other changes within the FAA. He also refused to provide specific details about how the agency will hold Boeing accountable for knowingly putting air travelers on fatally flawed machines and falsifying documentation the company submitted to the agency as part of the certification process.

A former Boeing manager, Edward Pierson, also appeared before Congress later in the day reaffirming what other current and former employees have reported – a “win-at-all-costs” culture that has corrupted a company that once led the industry in cutting-edge and safe aircraft. He recounted how he had expressed concerns about the culture and production practices to company executives. On two separate occasions, Edward recommended shutting down the plant’s line so that workers could safely address backlogs. He described employee fatigue, out-of-sequence work and miscommunications, all of which he said led to decreased quality and safety concerns for those who would travel on Boeing’s planes. Pierson explained that his concerns weren’t adequately addressed. He said:

I remain gravely concerned that the dysfunctional production conditions may have contributed to the tragic 737 MAX crashes, and that the flying public will remain at risk unless this unstable production environment is rigorously investigated and closely monitored by regulators on an ongoing basis.

Is a certification process overhaul coming?

Although Administrator Dickson refused to reveal details about changes to the certification process when pressed by lawmakers, he did share general thoughts with the WSJ in November about potentially overhauling the process. Administrator Dickson would like to see the FAA more involved throughout the process, rather than simply checking off boxes at the end. This would include an increased dialogue between the agency and the manufacturer – a “holistic approach” as opposed to the current “transactional approach.”

Dickson also wants the FAA to focus more on “human factors” including pilots and their actions in emergency situations when considering the design of an aircraft. Such an overhaul has been estimated to cost an additional $10 billion in funding for the FAA. Lawmakers have voiced the need for changes in the agency and with an obviously flawed process, yet it remains to be seen if they’ll be willing to foot the bill for long-overdue changes in an agency many of them have ignored or worse purposely underfunded for far too long.

Boeing now says it will halt production of its 737 Max in January. As we have reported, there has been a global grounding of the aircraft. Production of the 737 Max at Boeing’s Renton, Washington, factory will be suspended this month. Affected employees will continue other 737-related work or be temporarily assigned to other teams in Puget Sound, Boeing said. No layoffs or furloughs are expected at this time, the company added.

Aviation regulators around the world grounded the 737 Max planes in mid-March. Boeing has since apologized for the company’s “mistakes” designing and developing the 737 Max, which investigators have said had faulty angle-of-attack sensors that could inadvertently trigger an automated flight control system known as MCAS that could cause the plane to nosedive. Boeing has proposed software fixes and pilot training requirements.

Boeing’s announcement comes days after Administrator Dickson indicated that the safety regulator’s review of Boeing’s proposed fixes to the MCAS misfires will extend into 2020.

If you need any information about the Boeing Litigation contact Mike Andrews at 800-898-2034 or by email at Mike.Andrews@beasleyallen.com. Mike heads up the team of lawyers handling aviation litigation for our firm. He is heavily engaged in the ongoing Boeing litigation.

Sources: AINonline, Wall Street Journal, Reuters, USA Today and Bloomberg

AN UPDATE ON THE OPIOID LITIGATION

Federal Prosecutors Open Criminal Probe Of Opioid Makers And Distributors

Federal prosecutors in Brooklyn, New York, have opened a criminal investigation into the role drug manufacturers and distributors played in fueling the opioid crisis. The Wall Street Journal reported on the probe that includes these companies: Teva, McKesson, Mallinckrodt, AmerisourceBergen, Johnson & Johnson and Amneal Pharmaceuticals. Each of the companies has received subpoenas.

From 1999 to 2017, nearly 218,000 people died in the United States from overdoses related to prescription opioids, according to the U.S. Centers for Disease Control and Prevention (CDC). The investigation marks a significant broadening of the federal government’s focus on pinpointing which parties contributed to the opioid crisis.

The Justice Department (DOJ) had already launched a criminal probe into Purdue Pharma, the maker of OxyContin, for its part in the epidemic. That investigation examined whether the company failed to report doctors who were illegally prescribing opioids and also the company’s order-monitoring systems, the Journal previously reported. Purdue has been in talks to resolve the investigation, according to the Journal.

More subpoenas for the probe, which is still in its early stages, are expected to come. If the investigation turns into criminal charges, it could be the largest prosecution of drug companies said to have been part of the opioid crisis, the Journal reported.

Source: Wall Street Journal

Purdue Pharma Payments To Sackler Family Soared Amid Opioid Crisis

As scrutiny of Purdue Pharma’s role in the opioid epidemic intensified during the past dozen years, its owners, members of the Sackler family, withdrew more than $10 billion from the company, distributing it among trusts and overseas holding companies. This was revealed in a new audit commissioned by Purdue. The amount is more than eight times what the family took out of the company in the 13 years after OxyContin, its signature product, was approved in 1995. The audit will renew questions about how much the Sacklers should pay to resolve more than 2,800 lawsuits that seek to hold Purdue accountable for the opioid crisis.

As previously reported, the Sackler family has offered to contribute at least $3 billion in cash as part of a settlement to resolve thousands of lawsuits brought by state and local governments against Purdue. But 24 states have refused to agree to the proposal, saying that the Sacklers should pay much more. The new report, a 350-page forensic accounting prepared by Alix Partners, a consulting firm that Purdue has hired to help guide the company through Chapter 11 restructuring, was filed in the bankruptcy court.

The report fails to answer a key question for investigators – how much are the Sacklers actually worth and where is their money located? This question must be answered. Hopefully, that will happen fairly soon. The Sackler family should not be allowed to keep any part of their vast wealth obtained from Purdue at a time when opioids were killing thousands of people.

The report does detail checks and disbursements that Purdue made to the family in the years after the company’s guilty plea in 2007 to federal charges that it deceptively marketed OxyContin as nonaddictive. It appears, or it seems likely, the Sacklers intentionally withdrew large annual sums to shield the money from litigation as legal pressures mounted. The audit notes that in the first dozen years that OxyContin was approved – from 1995 through 2007 – Purdue’s payouts to the Sacklers totaled just $1.32 billion; from 2008 through 2017, the period of intense scrutiny by the auditors, the payments totaled $10.7 billion.

The Beasley Allen Opioid Litigation Team

Because of the enormity of the opioid litigation, and Alabama’s personal involvement in the multidistrict litigation (MDL), our firm has put together an “Opioid Litigation Team,” which includes these lawyers: Rhon Jones, Parker Miller, Ryan Kral, Rick Stratton, Will Sutton and Jeff Price. This team of lawyers represents the State of Alabama, the State of Georgia, and numerous local governments, as well as other entities in the MDL, and 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, Ryan.Kral@beasleyallen.com, Rick.Stratton@beasleyallen.com, William.Sutton@beasleyallen.com or Jeff.Price@beasleyallen.com.

AN UPDATE ON THE TALC LITIGATION

The St. Louis Trial

In early December 2019, Beasley Allen lawyers traveled to St. Louis, Missouri, to begin the talcum powder trial for Vickie Forrest. Ms. Forrest is a St. Louis resident who began using Johnson’s Baby Powder at 15 years old and continued to use it for decades until she was diagnosed with stage 2 clear cell ovarian cancer. Fortunately, her disease is now in remission.

During the trial, Dr. John Godleski, a retired Harvard pathologist, testified that he found talcum powder particles in Ms. Forrest’s tissue. Dr. Godleski testified that the talc particles likely came from Johnson’s Baby Powder, since the atomic weight of the talc particles was consistent with the atomic weight of Johnson and Johnson talc that he tested.

After a little over two weeks of presenting evidence, the case was handed to the jury. After four hours of deliberations, the jury returned a verdict in favor of Johnson and Johnson. Despite the disappointing verdict, Beasley Allen lawyers will travel to Pennsylvania and Illinois in March 2020 for the first Baby Powder ovarian cancer trials in Pennsylvania and Illinois state courts. Additionally, the Georgia talcum powder case that ended in a mistrial in 2019 is scheduled to retry in April 2020.

Johnson & Johnson continues to face thousands of talcum powder lawsuits in state courts across the country, as well as the Multidistrict Litigation in New Jersey Federal Court. Beasley Allen lawyers look forward to the opportunity to return to the courtroom and continue to seek justice for thousands of women who have been diagnosed with ovarian cancer after using Johnson & Johnson talc-based body powders. For additional information on these cases, contact Brittany Scott or Melissa Prickett at 1-800-898-2034, or by email at Brittany.Scott@BeasleyAllen.com or Melissa.Prickett@BeasleyAllen.com.

Jury Finds For J&J In California Trial

Johnson & Johnson (J&J) prevailed in the recently completed talc trial in California. The jury found that J&J was not the cause of the Plaintiff’s mesothelioma. The Los Angeles jury returned its verdict in favor of J&J and its subsidiary J&J Consumer Inc., finding that its baby powder was not to blame for the cancer of Plaintiff Pui “Amy” Fong. The California mother of two had moved to the U.S. from Hong Kong in 1984 when she was 13. It appears the Plaintiff had been exposed to asbestos and the jury felt that the J&J product was not the cause of her cancer.

Plaintiff Fong is represented by Joseph Satterley of Kazan McClain Satterley & Greenwood. The case is Fong v. Johnson & Johnson, (case number BC675449) in the Superior Court of the State of California, County of Los Angeles.

Source: Law360.com

FDA Ignored Talc Warnings For Years, Caved To Industry Leaders Instead

In the past 50 years, the U.S. Food and Drug Administration (FDA) has relied upon – and often deferred to – industry even as outside experts and consumers repeatedly raised serious health concerns about talc powders and cosmetics, a Reuters investigation found. Again and again, since at least the 1970s, the FDA has downplayed the risk of asbestos contamination and declined to issue warnings or impose safety standards, according to documents produced in court proceedings and in response to public records requests.

The FDA said it lacks the authority to require manufacturers to test for asbestos in talc or report any results. And the agency seldom has ordered its own tests – until recently.

Amid heightened scrutiny in Congress, a criminal investigation of J&J and costly jury verdicts against the company, the FDA commissioned tests that found asbestos in 11 talc-based cosmetics, including Johnson’s Baby Powder. Subsequently, J&J recalled 33,000 bottles.

Raja Krishnamoorthi, an Illinois congressman who chairs a U.S. House subcommittee investigating talc safety, told Reuters it was time for regulators to stop relying on manufacturers’ safety assurances. “When something as serious as cancer or carcinogens are at issue,” Rep. Krishnamoorthi said, “self-regulation doesn’t make a lot of sense.”

In written responses to questions from Reuters, the FDA said its resources and authority to regulate the cosmetic industry are limited. The agency said it has no power to ensure the safety of cosmetics before they are put on store shelves, nor to force companies to pull them off when potential hazards are discovered.

The agency said it now recognizes, as the World Health Organization and other public health agencies did years ago, that there is no known safe level of asbestos. FDA officials said their current policy is to act swiftly – and if necessary encourage recalls – even when small amounts are discovered.

The FDA now is under increasing pressure to ensure talc powders and cosmetics are free from asbestos. The agency’s testing of talc-based cosmetics this year followed jury verdicts totaling more than $5 billion against J&J in cancer lawsuits, as well as a Dec. 14 Reuters report showing that J&J knew its raw talc and powders sometimes tested positive for asbestos from the 1970s into the early 2000s and did not report those findings to the FDA.

The FDA began looking into talc safety in 1971 after researchers at Mount Sinai Medical Center in New York found what appeared to be asbestos in unnamed brands of talc powder. Two years later, FDA records show that the agency found asbestos in a sample of Shower to Shower, a J&J powder at the time that was made with the same talc as Johnson’s Baby Powder. The FDA never publicly announced the finding.

Talc safety concerns resurfaced in 1983 when a graduate student, Philippe Douillet, preparing for a toxicology class, came across information in geology journals he considered disturbing: Talc deposits are commonly laced with asbestos, a similar mineral. Douillet petitioned the FDA to require an asbestos warning on talc powders. When the FDA began evaluating Douillet’s petition, the FDA agency records show it looked to J&J for key information. In the end, the FDA decided there was no need for an asbestos warning on talc powders. In a July 1986 letter to Douillet, acting associate FDA commissioner J.W. Swanson wrote that the quality of cosmetic talc had improved “and that even when asbestos was present, the levels were so low that no health hazard existed.”

Eight years later, the FDA received a new request for a warning label on talc powders, raising the possibility that talc, by itself, was a hazard worthy of a warning label. This request came from Dr. Samuel Epstein, a University of Illinois environmental medicine professor who chaired the Cancer Prevention Coalition, an advocacy group. In a brief July 1995 letter, FDA Acting Cosmetics Chief John Bailey told Epstein’s coalition that the agency had taken no action because it had other priorities. In 2002, having taken no action on the petition, Bailey moved to the cosmetic trade group now known as Personal Care Products Council. He is now lobbying for the industry.

Now a consultant, Bailey serves as a litigation expert witness for J&J and other talc companies. In his statement to Reuters, Bailey said he had been hired at the council “as a scientist responsible for applying sound science to decision making.” He disputed Reuters’ finding that the FDA deferred to industry, saying the agency takes potential health concerns seriously and does its own evaluations.

Together, J&J, its talc supplier and the Personal Care Products Council arranged for a pair of scientists to assess the published studies that linked talc and ovarian cancer, according to emails and other records produced in litigation. In 2009, the scientists concluded that the evidence was too weak to consider talc as a cause.

Acting on that 2009 report, the FDA commissioned talc tests for the first time in 40 years, hiring Maryland-based AMA Analytical Services Inc, which analyzed 34 samples of talc powders and cosmetics, including Johnson’s Baby Powder. The lab had no experience testing for asbestos in talc and its techniques were very limited. Its prior work focused on building materials such as vinyl flooring, according to the deposition testimony of AMA lab director Andreas Saldivar. It found no asbestos in any of the 34 samples.

These issues are likely to be aired at the public hearing the FDA said it is planning for 2020. The gathering could signal how the agency intends to navigate between industry and consumer interests in coming years. Rep. Krishnamoorthi, the congressman heading the House investigation into talc safety, said the agency needs to bring consumers and their advocates into the discussion. “In light of the public interest around this particular issue,” he said, “we need to find out what’s going on.”

If you need additional information, contact Sharon Zinns, a lawyer in our Atlanta office. Sharon handles asbestos litigation for the firm. She can be reached at 800-898-2034 or by email at Sharon.Zinns@beasleyallen.com.

Source: Reuters

J&J Chief Gorsky Refuses To Testify About Asbestos In Baby Powder

Johnson & Johnson Chief Executive Officer Alex Gorsky hasn’t shied away from publicly disputing claims the company’s talcum powder products contain asbestos, a known carcinogen. Yet, Gorsky has refused to testify under oath at a U.S. congressional hearing to address the panel’s concerns about asbestos found in its baby powder.

Gorsky declined the House of Representatives Subcommittee on Economic and Consumer Policy’s “repeated attempts to accommodate the company” for nearly a month, Subcommittee chairman Raja Krishnamoorthi said in an announcement.

Johnson & Johnson has offered up a talc testing expert or a company executive who oversees its consumer products, emphasizing that Gorsky “is not, as we have repeatedly told the Subcommittee, an expert in the stated subject of the hearing.”

Yet, Gorsky didn’t seem to have any problem putting himself front-and-center defending the safety of company’s iconic baby powder and other talcum powder products last year after the company was hit with a $4.69 billion verdict in favor of 22 women who sued the company alleging that genital use of Johnson’s Baby Powder and Shower to Shower body powder caused their ovarian cancer.

Gorsky also appeared on CNBC’s “Mad Money with Jim Cramer” to dispute Reuter’s December 2018 investigative report that revealed the company knew for decades the talc it used in its talcum powder products was contaminated with asbestos.

In an October deposition in a lawsuit filed by a man who claimed J&J’s asbestos-contaminated talc caused his asbestos-associated cancer, Gorsky testified, “We unequivocally believe our talc and our baby powder does not contain asbestos.”

Also in October, the Food and Drug Administration (FDA) alerted consumers that testing had revealed trace amounts of asbestos in samples of Johnson’s Baby Powder. The company recalled 33,000 bottles of its baby powder but argued the FDA’s testing was flawed. FDA said it stands by its test results.

Source: CNBC

AN UPDATE ON THE WHISTLEBLOWER LITIGATION

Laboratory Company Settles False Claims Act Suit For $26.7 Million

Boston Heart Diagnostics Corp. (Boston Heart) will pay $26.67 million to resolve a False Claims Act (FCA) suit alleging it paid kickbacks to doctors disguised as investment returns in return for patient referrals in violation of the Anti-Kickback Statute and the Stark Law. The Anti-Kickback Statute prohibits offering, paying, soliciting, or receiving remuneration to induce referrals of items or services covered by Medicare, Medicaid, and other federally funded programs. The Stark Law forbids a provider from billing Medicare and Medicaid for certain services referred by physicians that have a financial relationship with the provider.

The Department of Justice (DOJ) alleged that from 2015 to 2017 Boston Heart provided lab testing services to small Texas hospitals in exchange for per-test payments. To generate more referrals for the hospitals, Boston Heart allegedly coordinated with the hospitals’ independent marketers, who set up companies known as management service organizations (MSO) to make payments to physicians that were disguised as investment returns but were based on physicians’ referrals for lab tests.

Those tests were then billed to Medicare, Medicaid and Tricare. According to the DOJ, Boston Heart allegedly helped the MSOs identify physician targets, referred interested physicians to the MSOs and participated with the MSOs in sales pitches to physicians. Assistant Attorney General Jody Hunt of the Department of Justice’s Civil Division observed:

Paying kickbacks to doctors in exchange for referrals undermines the integrity of federal health care programs. We will hold accountable those who enter into unlawful agreements that harm taxpayers, corrupt doctors’ medical judgment, and subject patients to expensive and unnecessary testing.

The settlement also resolves allegations that Boston Heart waived patient copays and deductibles and provided physician practices with in-office dietitians in exchange for physician referrals for laboratory testing. Those claims were first made in two cases filed under the whistleblower provision of the False Claims Act. The whistleblowers will receive about $4.36 million of the settlement.

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, contact a one of the lawyers on Beasley Allen’s Whistleblower Team for a free and confidential evaluation of your claim.

Source: U.S. Department of Justice

Federal Appeals Court Rules The False Claims Act Applies To Banks Seeking Federal Emergency Loans

On Nov. 18, 2019, the 2nd U.S. Circuit Court of Appeals revived a whistleblower lawsuit against Wells Fargo & Co after holding that companies that defraud the Federal Reserve System’s emergency lending facilities can be sued under the False Claims Act (FCA). The Court “reversed the dismissal of a lawsuit alleging the bank and Wachovia Corp, now owned by Wells Fargo, during the 2008 financial crisis misrepresented their financial condition to obtain emergency loans from Federal Reserve Banks (FRBs).”

U.S. Circuit Judge Robert Katzmann wrote:

Fraud during a national emergency against entities established by the government to address that emergency by lending or spending billions of dollars is precisely the sort of fraud that Congress meant to deter when it enacted the FCA.

Two former Wachovia executives, Paul Bishop and Robert Kraus, filed this lawsuit alleging Wachovia and Wells Fargo sought billions of dollars in emergency loans from the FRBs at favorable interest rates during the 2008 economic crisis by misrepresenting their financial condition as being healthier than it was at the time. In 2018, U.S. District Judge Brian Cogan dismissed the case. Judge Cogan wrote:

Loan requests made to the Fed’s 12 regional banks do not constitute “claims” under the False Claims Act because the banks are not under the law considered part of the federal government, which also did not provide the money the Fed used for the loans.

However, the 2nd Circuit held that because the banks are agents of the United States and money sought from them is provided to advance a government program, the FCA covers these types of loan requests. The Court went on to say that even though FRBs are separate from the government, they become agents of the federal government when they extend emergency credit to banks, which is one of their Congressionally-designated functions.

Fraud continues to be a huge problem in many industries in this country. Our firm has increased its whistleblower practice for this very reason. We recently obtained a $14 million verdict in Birmingham Federal Court dealing with a health care whistleblower issue and continue to pursue other cases throughout the country involving fraud on the government.

Source: Reuters

A Loss For U.S. Taxpayers –DOJ Gets Another Granston Memo Win

A Pennsylvania federal judge has dismissed a whistleblower company’s False Claims Act (FCA) case against Teva Pharmaceuticals at the request of the U.S. Department of Justice (DOJ). This dismissal further solidifies the federal government’s campaign to derail FCA suits. U.S. District Judge Jan E. DuBois granted the DOJ’s motion to dismiss a case filed by the National Healthcare Analysis (NHCA) Group. The suit alleged that Teva Pharmaceuticals USA Inc. encouraged doctors to write prescriptions for multiple sclerosis drug Copaxone in exchange for kickbacks in the form of free nursing services and assistance obtaining prescription reimbursement.

Judge DuBois said the federal government’s interest in “preserving scarce resources” by cutting litigation costs and protecting policy goals for health care programs justifies dismissal of the suit. The judge said that the government would need to monitor the case and respond to discovery requests if the suit survived. Judge DuBois wrote:

The government’s interest in avoiding potentially burdensome or unnecessary litigation costs is legitimate even when a relator’s claims appear meritorious.

This decision is the latest in a number of rulings allowing the government to derail whistleblower FCA cases. Nearly a dozen suits brought by the NHCA Group against various drugmakers have been dismissed. Those wins emanated from the 2018 release of the so-called Granston memo, which directed government lawyers to more aggressively weed out FCA suits viewed as conflicting with government prerogatives.

Federal courts have historically applied one of two standards when the DOJ tries to end a whistleblower’s FCA suit, recognizing either “unfettered discretion” to dismiss or broad authority to dismiss as long as doing so serves a valid government purpose. Judge DuBois said the DOJ met its burden under the valid government purpose standard. The government moved to dismiss the NHCA Group’s suit in December after claiming it had extensively investigated the allegations – not only in the Teva case but in similar cases brought by NHCA Group affiliates in other courts – and found that the suits lacked merit.

The NHCA Group opposed dismissal in January, saying the government didn’t meet its burden for dismissal and that the “valid government purpose” arguments didn’t hold water because proceeding with the case would yield a significant recovery for the government. Judges have only rejected two of approximately 36 motions to dismiss that the DOJ has filed in accordance with the Granston memo. The government is appealing the two rejections – one of which came in an NHCA case – at the Seventh and Ninth Circuits.

Recent DOJ wins also include a trio of Nov. 5 rulings from federal judges in California, Pennsylvania and Washington state that granted government motions to dismiss fraud allegations targeting AstraZeneca PLC, Gilead Sciences Inc. and a UnitedHealth Group Inc. unit despite opposition from FCA whistleblowers. The NHCA Group is represented by Gregory S. Spizer of Anapol Weiss and Joseph Trautwein of Joseph Trautwein & Associates LLC.

The government is represented by lawyers from the DOJ’s Civil Division and by the U.S. Attorney’s Office for the Eastern District of Pennsylvania. Teva is represented by Michael A. Schwartz and Erin Colleran of Pepper Hamilton LLP. The case is U.S. ex rel. NHCA-TEV LLC v. Teva Pharmaceutical Products Ltd. et al., (case number 2:17-cv-02040) in the U.S. District Court for the Eastern District of Pennsylvania.

Source: Law360.com

The Beasley Allen Whistleblower Litigation Team

Fraud against the federal government continues to be a huge problem. Many industries in this country are involved. Our firm is heavily involved in the whistleblower litigation. Beasley Allen lawyers Lance Gould, Larry Golston, Paul Evans, Leslie Pescia, Leon Hampton, Tyner Helms and Lauren Miles are working in this area of law known as “qui tam” cases. They make up the Whistleblower Litigation Team.

As we have consistently stated, whistleblowers are the key to exposing corporate wrongdoing and government fraud. 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. Beasley Allen has an experienced group of lawyers 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, contact a lawyer at Beasley Allen for a free and confidential evaluation of your claim.

A lawyer on our Whistleblower Litigation Team will be glad to discuss any potential whistleblower claim with you either in person or by phone. You can reach these lawyers by phone at 800-898-2034 or by email at Larry.Golston@beasleyallen.com, Lance.Gould@beasleyallen.com, Paul.Evans@beasleyallen.com, Leslie.Pescia@beasleyallen.com, Leon.Hampton@beasleyallen.com, Tyner.Helms@beasleyallen.com and Lauren.Miles@beasleyallen.com.

THE CORPORATE WORLD

Banks Settle Fannie, Freddie Bond Price-Fix Suits For $337 Million

More than a dozen banks have reached settlements totaling $337 million to resolve investors’ claims in New York federal court that the financial institutions rigged the prices of bonds issued by mortgage lending giants Fannie Mae and Freddie Mac. Plaintiffs in the litigation have asked U.S. District Judge Jed Rakoff’s preliminary approval of the settlement, which includes an $87 million settlement with Barclays Capital Inc. and a $250 million settlement with a dozen other institutions that were sued. Judge Rakoff has also preliminarily signed off on a related $20 million settlement between the Plaintiffs and Goldman Sachs.

Investors, which include large pension funds for cities, states and unions, claimed in the antitrust suits that the banks used their unique position as bond sellers for the government-sponsored entities (GSEs) to work in tandem to jack up the prices of bonds to investors’ detriment. Along with the financial settlements, many of the banks agreed to take a series of internal steps cracking down on potential collusive activity among traders.

As a result of the settlements, some of the largest banks in the nation will for the first time implement strong antitrust compliance measures to stop the alleged conduct. The settlement calls for rigorous employee training, establishing a “culture of compliance” with strong oversight, dedicating resources for oversight, and ensuring consistency with industry best practices via periodic assessment of programs by a representative of the Pennsylvania Treasury.

Two years following the settlements’ final approval, each of the banks are due to meet and confer, at least annually, with the state’s treasury to confirm the adequacy of the compliance program and consider industry best practices.

Along with the Barclays agreement, the Plaintiffs sought approval for a settlement with 12 large institutions: BNP Paribas, Cantor Fitzgerald, Citigroup Global, Credit Suisse, HSBC, J.P. Morgan, Merrill Lynch Pierce Fenner & Smith Inc., Morgan Stanley, Nomura Securities, SG Americas, TD Securities and UBS Securities. The settlements are on top of previous deals with Deutsche Bank, First Tennessee Bank and Goldman Sachs and bring the total monetary settlement recovery to $386.5 million.

On Nov. 19, the Plaintiffs asked Judge Rakoff to certify a class of investors who purchased debt securities for GSEs on the secondary market between 2009 and 2016, the period in which more than a dozen major financial institutions allegedly schemed to inflate the prices of those bonds.

The investors are represented by Scott & Scott Attorneys at Law LLP, Lowey Dannenberg PC, Berman Tabacco and the Pennsylvania Treasury Department Office of the Chief Counsel.

The case is In re: GSE Bonds Antitrust Litigation, case number 1:19-cv-01704, in the U.S. District Court for the Southern District of New York.

Source: Law360.com

$1.8 Million Drug Fraud Scheme “Puppet Master” On Trial

“I was the puppet master” – those are the words of Mark Moffet, a salesman for Aegerion Pharmaceuticals, Inc. Moffet stands accused of orchestrating and participating in a scheme to defraud Medicare and other insurance companies by overprescribing a drug called Juxtapid. Prosecutors allege that in many instances Moffet would forge the signatures of doctors to prescribe the drug, even though the patient was never diagnosed with the disease Juxtapid purportedly treats.

Juxtapid is a U.S. Food and Drug Administration (FDA) approved drug used to treat homozygous familial hypercholesterolemia (HoFH). HoFH is a rare genetic condition that obstructs the body’s ability to regulate cholesterol – and it is very expensive to treat. In some circumstances, Juxtapid could cost patients more than $25,000 per month, and Moffet could make $9,000 for a single prescription sold. Even worse, Juxtapid was not free of side effects, and in some instances the drug caused people whose doctors never prescribed the drug to get sick.

Assistant U.S. Attorney Rachel Hemani outlined the scheme in her opening statement on Dec. 4, 2019. Moffet is accused of using his charm to persuade and manipulate doctors to prescribe Juxtapid off-label, and at times even forging doctor signatures. In one instance, a nurse who dated Moffet lied to an insurance company on a recorded call, claiming that a patient who was not diagnosed with HoFH did in fact carry the disease. Prosecutors were able to show the jury a text Moffet sent soon after the call, which stated “I was the puppet master as she spoke.”

Moffet’s company, Aegerion, did not escape judgment. The company has stated that it replaced nearly every executive, as well as other employees. This is in addition to a U.S. Securities and Exchange Commission (SEC) lawsuit, which was settled for $4.1 million, and an order by U.S.District Judge William G. Young to pay another $36 million to the government and about 90 patients. In February 2018, a cardiologist in Georgia pled guilty to sharing confidential information with Aegerion sales reps like Moffet, allegedly to help them further their racket.

The case is U.S. v. Moffet, (1:18-cr-10248) in the U.S. District Court for the District of Massachusetts.

Source: Law360.com

A Wrongful Death Lawsuit Filed Against Royal Caribbean

The parents of the toddler who fell to her death from an open cruise ship window in July have filed a wrongful death lawsuit against Royal Caribbean. Chloe Wiegand’s family blames the cruise line for failing to “provide reasonably safe children entertainment areas, including reasonably safe windows” on its ships.

The girl’s grandfather, Sam Anello, lifted Chloe to what he thought was a closed window when she fell from his arms. He is charged with negligent homicide in Puerto Rico, where the cruise ship was docked. The family does not support that action. It’s difficult to understand why Mr. Anello has been charged in a criminal manner.

Chloe would have turned 2 years old last month. Her mother, Kim, said she should be getting ready to celebrate with cake and presents, but instead she spends time every night with Chloe’s urn.

Michael Winkleman, a lawyer who represents the family, said that the cruise ship did not comply with industry safety standards, including having fall prevention window guards, screens and a device that would have limited the window opening to four inches. He added:

It’s our clear allegation in the complaint that they either knew about these window safety, window fall prevention codes or should have known about them because it’s the industry standard.

This case will be watched closely.

Source: CBS News

PRODUCT LIABILITY UPDATE

Caterpillar Death Case Settled On Eve Of Trial

Beasley Allen has settled a wrongful death case that was set for trial in Barbour County, Alabama, on Jan 6. The case involved a Caterpillar D4C Series bulldozer. Jeffrey Danner, the owner of the bulldozer, was killed on April 21, 2017. He was getting off the bulldozer when he inadvertently bumped the gearshift mechanism into reverse gear. The dozer was designed, and it was intended by Caterpillar, that operators would step onto the track going into and exiting off the machine.

Caterpillar designed a metal guard to prevent inadvertent bumping of the controls of the machine. However, the guard was grossly inadequate, ineffective and violated CAT’s own design standards. Because of the defective design, Mr. Danner’s body contacted the control handle while he was exiting the dozer, causing the machine to go into reverse as he was stepping onto the track. The motion of the track carried Mr. Danner to the rear of the dozer where he was overrun.

Caterpillar has known for years that operators are required to get on and off the machines by stepping on the track. If a person is exiting the machine and bumps a control handle it can result in the machine activating and carrying the person either toward the front or toward the rear of the machine, depending on whether the machine is bumped into forward or reverse.

Caterpillar knew that control handles were required to be properly guarded. Caterpillar’s design guidelines state that the control handles must be guarded to prevent exactly what happened in this case.

However, the control handles on this dozer were not properly guarded. The machine was defective by design.

There were alternative designs available that would have prevented this machine from going into reverse at the time Mr. Danner exited the machine. In particular, there is a lockout device that could have been designed to prevent Mr. Danner from exiting the machine without locking the controls into neutral.

The actual guard on the control handles could have been designed so that it would not allow Mr. Danner to contact the control handles when entering or exiting the machine. The machine could have been designed with an operator presence system that would have prevented the machine from moving while no operator is in the operator position.

In addition, and most important, Caterpillar failed to warn of the dangers associated with getting off the machine without completely locking the control lever into the neutral position. There is no warning of this danger in the operator’s manual nor is there a warning on the dozer. There were alternative warnings that could have been used that would have alerted the operator to the dangers associated with failing to lock the machine into neutral.

Caterpillar knew for years, based on other incidents, that improperly guarded machines could result in serious injury or death. Caterpillar knew that failing to warn in particular could result in severe injury or death. Caterpillar knew that there is no utility in a bulldozer operating without an operator in the control position. Caterpillar knew that people could be thrown from or bumped off machines and without proper protection that could result in severe injury or death.

The corporate representative in this case for Caterpillar admitted the alternative designs were feasible at the time this machine was originally designed and sold.

The case was settled for a confidential amount after mediation and following a subsequent pretrial before Judge Burt Smithart. Greg Allen, Shane Seaborn, Will Partin and this writer represented the Danner family. Stephanie Monplaisir handled all the pretrial hearings and briefing in this important case. If you need more information, contact Greg Allen at 800-898-2034 or by email at Greg.Allen@beasleyallen.com. Greg did a terrific job in investigating this case and in pretrial discovery.

Post-Verdict Settlement With Ford Motor Co.

A jury in Dallas County, Alabama, as previously reported, found Ford Motor Company at fault for a rollover crash of a 1998 Ford Explorer that left Travaris “Tre” Smith paralyzed. The jury awarded Smith $151,791,000, which consisted of $51,791,000 in compensatory damages and $100 million in punitive damages. The jury found that Ford failed to meet its own safety guidelines for the Explorer’s rollover resistance requirement and attempted to cover up the vehicle’s defective design. Beasley Allen lawyers LaBarron Boone, Kendall Dunson, Greg Allen, Stephanie Monplaisir, and Dan Philyaw, along with Bill Gamble of the Selma firm of Gamble, Gamble, Calame and Jones, LLC represented Tre Smith.

The 1998 Ford Explorer has been at the center of two historic safety recalls in the U.S. due to its defective design. The model consistently failed the Consumer Union testing because of its propensity to roll over, and company engineers advised Ford it needed to change the design, but Ford refused. Instead, it opted to change the way the product was tested, moving it from a real-world setting to a computer-based simulation called ADAMS. Yet, Ford destroyed the original input and output data obtained through the ADAMS testing, claiming it had no scientific value and was too expensive to maintain.

While on appeal, Ford settled the case for a confidential amount. We are very pleased to have reached a settlement that will make the future much better for 24-year-old Tre and to make sure he is taken care of for the rest of his life.

The case is Travaris D. Smith v. Ford Motor Company, et al, 27-CV-2016-900273.00 in the Circuit Court of Dallas County, Alabama.

More Takata Recall Issues

Dating back to 2008, mandated recalls of vehicles that were equipped with Takata airbags were instituted because of faulty inflators. In 2013, the airbag recalls for Takata airbags were expanded. The recall expansions increased in 2014 (recall of vehicles in humid climates); 2015 (nationwide recall involving 22 million inflators); 2016 (an additional 5 million inflators initially followed by another 38 million later in the year); and on and on. In all, more than 41 million vehicles have been recalled to repair or replace defective Takata airbag systems.

If these recalls were not enough, a new, equally serious issue has been identified with some older model vehicles. According to the National Highway Traffic Safety Administration (NHTSA), on Dec. 4, 2019, 1.4 million additional Takata-equipped vehicles are being recalled because of potentially deadly air bag inflators.

The defective vehicles under the current recall include a Non-Azide Inflator. These inflators can explode or underinflate during a deployment event. The nature of this recall is quite different from prior Takata airbag recalls. These inflators do not use ammonium nitrate, as did the prior bags, but the inflators can still erode and break down over time, largely because of inadequate seals, causing the inflator to explode. To date, at least one death and multiple serious injuries have been reported. Additional recalls are expected, bringing the estimated total recall of vehicles with Takata airbags closer to the 65- to 70-million mark.

Individuals who are driving 2001 to 2003 Honda and Acura vehicles, 2006 Ford Rangers, and Mazda B-Series trucks have been advised to immediately stop driving these vehicles because of the hazards that exist in the airbag system. The 1998 to 2000 Mitsubishi Montero will also be involved with this recall. BMW has warned drivers of 1999 to 2001 BMW 3-series vehicles that those vehicles may also include the defective inflators. According to BMW, of the approximately 116,000 vehicles covered by this time-range, at least 8,000 will have the dangerous inflators. Audi, Toyota and Honda expect other vehicles to be identified as including these inflators, which will mean more vehicles will be added to the recall list.

BMW has informed its vehicle owners that it will replace the faulty inflators if the customers bring the vehicles to a local dealer service center. Others are addressing what their remedies might be, since the former Takata company (now known as Joyson Safety Systems) sold the airbag business to Chinese-owned Key Safety Systems for $1.6 billion.

The long history of failures in the Takata airbag saga highlights a serious issue with automotive safety in this country. All too often, people must die or be seriously injured before recalls are instituted for defective products.

If you believe your vehicle may be involved and have the defective airbag inflators, you are encouraged to take your vehicle promptly to a dealer service center. NHTSA has also provided a way that you can determine if your vehicle is involved in the recall. Consumers may go to https://www.nhtsa.gov/recalls and enter your vehicle VIN (vehicle identification number or serial number). Entry of your VIN should indicate whether your car is subject to a recall notification. The website is updated regularly.

If you need additional information, contact Ben Locklar, a lawyer in our firm, at 800-898-2034 or by email at Ben.Locklar@beasleyallen.com.

Sources: NHTSA.gov and USA Today

Marketing Safety On Autopilot?

In December 2019, a Tesla Model 3 collided with a Connecticut state police car while a trooper was helping a disabled vehicle on Interstate 95. Even though the trooper’s vehicle, stopped in the left center lane, had its emergency lights on, the Tesla crashed into the rear of the police vehicle and then continued up the interstate. According to police, the operator of the Tesla stated that prior to the collision his vehicle was in autopilot mode and he was checking on his dog in the back seat. The National Highway Traffic Safety Administration (NHTSA) announced that it would conduct a special crash investigation into the incident.

In total, NHTSA’s special crash investigation team has inspected 12 crashes involving Tesla vehicles said to be in autopilot mode at the time of the incident. At least three such crashes in the U.S. have resulted in fatalities.

According to NHTSA, although an increasing number of vehicles on America’s roads and highways have some automated capabilities, there are no vehicles currently for sale that are fully automated or self-driving. Additionally, representatives from groups like Partners for Automated Vehicle Education have underscored the dangers of referring to current advanced vehicle technologies in terms that confuse public perception about vehicle capabilities.

Yet, information on the “Autopilot” page of Tesla’s website appears to offer ranging descriptions of what functions its vehicles can safely perform. In one area, Tesla states that “current Autopilot features require active driver supervision and do not make the vehicle autonomous.” However, a video on the same webpage demonstrating Tesla technology begins with a statement that “[t]he person in the driver’s seat is only there for legal reasons. He is not doing anything. The car is driving itself.” The video then continues to show a driver sitting in the front seat, riding through city streets, without his hands on the wheel. Additionally, Tesla CEO Elon Musk has tweeted videos of hands-free use of Tesla vehicles on public roads.

Tesla vehicles are equipped to trigger audio and visual warnings when drivers remove their hands from the wheel while in autopilot mode. Still, some members of the general public certainly seem to have embraced an idea that “autopilot” mode means something more like autonomous. A September NBC Nightly News report highlighted one video of a driver and passenger completely asleep in the front seats of their Tesla as it cruised down a highway near Boston, and another video of a driver asleep at the wheel on a highway near Los Angeles.

If you need additional information, contact Dan Philyaw, a lawyer in our firm’s Atlanta office, at 800-898-2034 or by email at Dan.Philyaw@beasleyallen.com.

AN UPDATE ON THE JUUL LITIGATION

Beasley Allen’s Joseph VanZandt Appointed To National JUUL Leadership Role

U.S. District Judge William Orrick of the Northern District of California in San Francisco has tapped the team of 21 lawyers to lead the national multidistrict litigation (MDL) against vape giant JUUL on behalf of Plaintiffs. Beasley Allen lawyer Joseph VanZandt was appointed to serve on the Plaintiff Steering Committee.

Since JUUL hit the market in 2015, e-cigarette usage among youth has skyrocketed. The latest numbers from the Centers for Disease Control and Prevention (CDC) show that 28% of high schoolers and 11% of middle schoolers self-report vaping; the actual numbers are likely much higher. That equates to more than 5 million teenagers vaping in 2019, up from 3.6 million in 2018. Most surveyed students admit that JUUL is their preferred vape brand. The U.S. Food and Drug Administration (FDA) and CDC have labeled this as an epidemic among youth and an addiction crisis; both agencies have attributed the rise of vaping among youth to JUUL.

The JUUL litigation is one of the most important and fastest growing litigations in the country and it will play a key role in addressing this public health crisis facing the nation’s youth. Hundreds of lawsuits have already been filed against JUUL on behalf of youth, parents, young adults, and school districts. The number of cases against JUUL is expected to rise significantly in the coming months. This litigation – much like the underlying public health crisis – is complex and urgent, requiring a comprehensive, cooperative, thoughtful, organized and powerful effort by Court-appointed Plaintiff leadership.

Beasley Allen has been on the forefront of the JUUL litigation. Joseph heads up our firm’s JUUL litigation team, which represents thousands of individual Plaintiffs and dozens of school districts. For months, Joseph has travelled the country meeting with countless individuals who have been impacted by JUUL – school boards, school superintendents, school principals, parents, teachers, and even multiple U.S. Congressmen and Congresswomen to gain a comprehensive understanding of this epidemic and what it will take to redress this problem on a national scale. Joseph has become a frequently invited speaker at national conferences about the JUUL litigation and has been appointed as a Co-Chair of the American Association of Justice’s JUUL Litigation Group.

Beasley Allen is committed to holding JUUL accountable for the damage it has done to teenagers, young adults, families, and schools through targeting minors with its dangerous and highly addictive vape products. If you have questions about the JUUL litigation, contact Joseph VanZandt at Joseph.Vanzandt@beasleyallen.com.

Beasley Allen Leads JUUL School District Litigation

Beasley Allen lawyers continue to lead the fight against JUUL and other vape product manufacturers to redress the nicotine addiction epidemic sweeping the country’s youth. In addition to representing thousands of individuals who have been severely impacted by JUUL, Beasley Allen also represents dozens of school districts around the country that are on the front lines of fighting this epidemic.

Over the past several years, JUUL’s products have infiltrated our communities and become a fixture in the lives of today’s children. JUUL engaged in a deceitful practice of designing and promoting its products so that they would be attractive to children. Everything about the product’s design – from its size and appearance, unique nicotine and flavored chemical formulation, and aggressive social media promotion – has been directed to teen and adolescent users. The JUUL nicotine delivery product has become ubiquitous. National surveys show that nearly 30% of high school students report vaping, but many educators say usage rates in schools are closer to 70%.

Over the past several months, Beasley Allen has been engaged in conversations with teachers, principals, superintendents, and school boards about the impact of JUUL and vaping on our children and our schools. Universally, our public schools have a mandate to deliver educational services in an atmosphere that is safe, healthy and conducive to learning. Because JUUL has exposed a new generation of children to record levels of nicotine addiction, schools are being uniquely impacted and have been forced to incur a multitude of costs to address this problem and are also faced with the challenge of how to remedy and abate the situation.

JUUL’s actions created a public nuisance and a threat to public health and safety, and school districts have been uniquely and disproportionately impacted by JUUL’s conduct. Educators are being forced to expend significant resources to combat JUUL use by students. JUUL use by students during school presents both a danger to students and increases the resources necessary to educate the students who use JUUL. It also detracts from educators’ limited time and resources to educate their student population generally.

Schools have installed sensors in bathrooms, removed bathroom doors, and banned USB flash drives, to name just a few of the steps taken. Some schools have hired extra security to monitor bathrooms and new health teachers to educate children on the dangers of vaping.

Rather than continue to be victimized by this JUUL addiction crisis, several school districts have turned to the legal system to hold JUUL accountable for the harm inflicted upon our educational environment. Beasley Allen is on the front line of this fight, having filed lawsuits on behalf of school districts in Arizona, Kansas, Missouri, New York, Pennsylvania and Florida, with plans to file cases on behalf of dozens other school districts around the country in the coming months.

Joseph VanZandt, a lawyer in our firm’s Mass Torts Section, is leading the firm’s efforts against vaping giant JUUL. Joseph has travelled the country meeting with students, teachers, and school administrators to learn more about the challenges schools are facing because of JUUL. According to Joseph:

It’s shocking to see the impact JUUL’s conduct has had on schools. School administrators are forced to spend most of their time dealing with this problem instead of focusing on education. Both vaping and non-vaping students are impacted. JUUL created this problem and should be required to provided schools with the financial resources necessary to solve this problem.

If you know or represent school districts that have been impacted by the JUUL epidemic, lawyers in our firm want to work with you. Contact Joseph VanZandt or Sydney Everett, lawyers in our Mass Torts Section, at 800-898-2034 or by email at Joseph.Vanzandt@beasleyallen.com or Sydney.Everett@beasleyallen.com.

MORE ON THE VAPING LITIGATION

Chinese Vaping Industry Under Scrutiny

For years, Chinese vape product makers had free rein to operate without regard to consumer safety. But new rules are set to change that. China has joined the United States and other governments in putting new pressure on vaping. Regulators have banned online sales of vaping products, and China’s major propaganda outlets have heaped on scrutiny, citing the potential health effects. The government is considering banning vaping in public places.

Beijing’s crackdown threatens an almost exclusively Chinese industry that had been counting on the country as a haven. Ninety percent of the world’s vaping devices are made in China, and most of them are produced in Shenzhen, a southern city that borders Hong Kong. The new scrutiny adds to the troubles for Chinese vape product exporters, already hammered by the vaping-related health crisis in the United States that has sickened at least 2,200 people and killed 47.

While exporters have long dominated China’s vaping industry, the domestic market took off only about three years ago. Euromonitor, the global market research consultancy, said China’s vaping market was worth $750.4 million in 2018, nearly triple the 2014 value. China has more than 300 million smokers, out of a population of nearly 1.4 billion. In the United States, 10.8 million adults vape.

Concerns are mounting about the hazards of vaping among the young, prompting many Chinese to call for regulations. A 2018 tobacco survey commissioned by China’s Center for Disease Control found that people 15 to 24 years old were the most avid vapers, with most buying their devices online.

For years, the Chinese government allowed the lucrative vaping industry to thrive with no supervision. There was never any consensus on whether vape products should be classified as tobacco, health or electronics products and which agency should regulate them. Part of the problem, too, is that China’s top tobacco authority is both a regulator and a producer of cigarettes. In an industry with low barriers to entry, manufacturers took advantage of this void. According to Tianyancha, a corporate database in China, the country has more than 9,500 vape manufacturing companies.

Many of these brands have haphazard quality controls that have resulted in knockoffs, unsafe ingredients and vape liquid leakage, but the authorities have rarely policed these companies. In March, CCTV said eight vape product companies made vaping oils with nicotine levels that were higher than what the package stated. Alarmed by these reports, the government is set to force producers to comply with standards on ingredients and manufacturing, according to a draft viewed by The New York Times.

Once the “national standard” is enacted, companies would be required to provide details on the number and dosage of ingredients, put warnings on packages and devise ways of testing vape products to ensure compliance.

Vape product manufacturing executives in China were unanimous in attributing the vaping-related illnesses in the United States to the use of THC, the psychoactive ingredient in marijuana, and vitamin E acetate. The majority of the American victims had vaped THC, but some say only nicotine was involved. 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@beasleyallen.com. Will handles vaping litigation for the firm.

MASS TORTS UPDATE

Xarelto Settlement Withstands Scrutiny, Moves Forward

The Xarelto multidistrict litigation (MDL) was centralized for pretrial proceedings in December 2014. After more than four years of intense litigation, including six bellwether trials, Plaintiffs and Defendants reached a private settlement worth $775 million in March 2019. The settlement has received overwhelming support, with more than 99% of the eligible claimants (28,000+ Plaintiffs) electing to participate in the settlement. Andy Birchfield, the head of Beasley Allen’s Mass Torts Section, continues to serve as Co-Lead Plaintiff Counsel for the Xarelto Multi-District Litigation (MDL No. 2592) and played a preeminent role in negotiating and overseeing the settlement process.

Despite overwhelming support for the Xarelto settlement, a small subset of 15 Plaintiffs filed a motion objecting to certain terms of the Xarelto settlement agreement in November 2019. The Xarelto Plaintiff Executive Committee, led by Andy, strongly opposed the motion and defended the settlement in a hearing in front of U.S. District Judge Eldon Fallon in December 2019. The Defendants likewise opposed the motion and defended the settlement.

Judge Fallon issued an order on Dec. 17, 2019, soundly rejecting the movants’ arguments and denying their motion. In doing so, Judge Fallon acknowledged the Plaintiff Steering Committee’s efforts in this litigation and the ultimate settlement. Judge Fallon’s order clears the way for the Xarelto settlement to be finalized, implemented, and paid in 2020, ensuring that thousands of individuals injured by Xarelto receive just compensation for their injuries.

Andy Birchfield, Head of our Mass Torts Section and serving as co-lead counsel for the Xarelto MDL, has done an outstanding job in this matter. This was a tremendous settlement for the Plaintiffs and it is heading toward completion.

AN UPDATE ON SECURITIES INSURANCE AND FINANCE LITIGATION

Workers And Investors Are Big Losers In Celadon Group Bankruptcy Caused By Fraud At The Top

Celadon Group, once one of the largest trucking, shipping, and logistics companies in the U.S., filed for Chapter 11 Bankruptcy protection on Dec. 9, 2019. Just days before the bankruptcy filing, on Dec. 5, the U.S. Securities and Exchange Commission (SEC) announced an enforcement action against Celadon’s former President, William Eric Meek Jr., and former CFO, Bobby Lee Peavler, charging them with securities fraud.

At the same time, the U.S. Department of Justice (DOJ) announced that Meek and Peavler had been indicted in the Southern District of Indiana on 12 criminal charges each relating to the fraud, which resulted in a loss of more than $60 million to shareholders. Celadon had reached a settlement with the SEC and DOJ in April 2019 and agreed to pay $42.2 million to investors. Now, $33 million of that settlement is listed as an unsecured debt in the bankruptcy filing.

At its peak, in 2015, Celadon employed more than 6,400 people in North America, including about 4,500 drivers. In 2016 Celadon generated more than $1 billion in revenue and operated or leased over 15,000 trucks. From 2013 to 2016, Celadon rapidly expanded its truck leasing business, run through a subsidiary, Quality Companies, LLC. During that time, the number of trucks owned by Quality went from approximately 750 to more than 11,000. Due to market conditions, many of those trucks ended up idle. At the same time, this high number of idle trucks created an oversupply of used trucks for sale, which caused the value of trucks to drop. Celadon carried those trucks on its books at the purchase price minus depreciation, which was higher than what they could be sold for at the time. Accounting rules permit this, until the trucks are held for sale, at which time they must be carried at market value.

Meek and Peavler, among other Celadon executives, were aware of this, but continued carrying the trucks at inflated values: some at 400% of their market value. This overstated assets by at least $20 million. The drop-in value created a major problem for Celadon, which had covenants with its creditors that limited the amount of debt Celadon could carry compared to its earnings. Celadon had to certify this ratio to lenders at the end of each quarter. Even with the overstated values, in September 2016 Celadon was dangerously close to breaching its debt covenants, which would have enabled creditors to call in their loans. To avoid this, Celadon committed at least two fraudulent acts.

  • First, Celadon, through Quality, engaged in a series “swaps” of trucks with Stoops Freightliner, a truck dealer. Quality and Stoops agreed to buy trucks off of each other at the inflated values. This allowed Celadon to dump the overvalued trucks and “fix” the books for a time. To mislead its creditors, Quality structured the fourth swap deal so that the payments straddled the quarterly reporting time. On Sept. 29, 2016, Quality made a payment of $5.9 million to Stoops, which then sent $30.9 million to Quality. Quality characterized the $5.9 million as a stand-alone payment, when, in fact, it was only partial payment under the contract. Quality paid the remaining $27 million to Stoops on Oct. 3, 2016, after the quarterly report. Using this gap in payment, Quality reported on Sept. 30, 2016, with an extra $25 million on its books, even though it was obligated to pay Stoops within days. This overstatement was not only provided to lenders, but also to investors in Celadon’s 10-Q and Celadon’s auditors.
  • Second, Celadon’s swap with Stoops had only provided a short-term fix. It had gotten past the quarterly reporting deadline, but Celadon had simply traded one set of overvalued trucks for a new set of overvalued trucks. To avoid reporting the loss on these new trucks, Celadon entered a joint venture to form 19th Capital, LLC. In return for its ownership interest, Celadon agreed to transfer money and equipment into 19th Capital. To meet this obligation, Celadon contributed…you guessed it…many of the trucks it acquired in the swaps, at inflated values. By doing so, Celadon avoided having to recognize the losses on the trucks on its financials, which overstated profits. Estimates put this overstatement at around $219 million.

Celadon stock (formerly listed on the New York Stock Exchange as CGI) peaked in value at around $30 per share in 2015. It was trading around $9 per share when news of the fraud first began to surface online in late 2016. After the full breadth of the fraud became clearer in early 2017, the stock crashed to $1.85. Trading was halted on the NYSE in April 2018 due to the accounting fraud, and now that bankruptcy has been filed it is trading at $0.02 per share. The bankruptcy is putting nearly 3,000 truck drivers out of work, some of whom are away from home on routes and unsure how they will be able to get back.

It’s possible Celadon was destined for bankruptcy without the fraud, but we will never know for sure. Perhaps an honest leadership group could have weathered the storm and returned the company to profitability, saving at least some of the employees’ jobs. However, the corrupt management at the helm focused only on the short-sighted goal of fraudulently propping up the financials. In doing so, they kept further depreciating assets on the books, worsening the blow that was destined to come when those losses were realized. Certainly, investors would not have been so blind-sided had executives truthfully reported the finances. But such is commonplace in modern corporate governance, where too much focus is placed on increasing and maintaining stock price in the near term, instead of on steady performance and longevity.

If you are aware of securities law violations at companies, such as fraudulent financial reporting, the SEC has a whistleblower program to reward those who report fraud. Persons who come forward with high-quality original information can receive a monetary award if it leads to an enforcement action in which more than $1,000,000 in sanctions is ordered. The monetary award can range between 10% and 30% of money collected, and you do not have to be an employee or insider to qualify.

An experienced whistleblower lawyer is an important ally in bringing wrongdoers to justice. A whistleblower lawyer can help navigate a potential claim, guide you through what is often a long process, and help you obtain whistleblower protections available to you under the law. If you have any questions or need additional information, contact James Eubank, a lawyer in our firm, at 800-898-2034 or by email at James.Eubank@beasleyallen.com. James handles securities litigation for our firm.

EMPLOYMENT AND FLSA LITIGATION

Riot Games Reaches $10 Million Settlement In Workers’ ‘Bro Culture’ Lawsuit

Riot Games will pay $10 million to settle a gender discrimination and sexual harassment proposed class action over the League of Legends maker’s “bro culture.” Melanie McCracken, a current employee, and former worker Jessica Negron sued Riot Games in the proposed gender discrimination and sexual harassment class action in November 2018. It was alleged in the lawsuit that the company fostered a “men-first” culture that puts women at a disadvantage during the hiring process and in the workplace. Ms. McCracken settled her individual claims. Another worker, Gabriela Downie, is now serving as a class representative instead, according to the motion filed for preliminary approval of the agreement.

Under the proposed agreement, Negron and Downie will each get $10,000. Class members will get paid based on how long they worked for Riot Games, with payments starting at $2,500 or $5,000, pursuant to the settlement agreement. Temporary contractors will get a minimum payment of $500. Negron and Downie requested certification of a settlement class that includes all current and former female California Riot Games employees who worked at the company between November 2014 and now.

Ryan Saba of Rosen Saba, representing the workers, said in a statement that this is one of the largest ever settlements in California for a gender inequality suit. In the suit, the women alleged violations of the California Equal Pay Act and discrimination, retaliation and harassment because of their gender. Women at the company were paid less than men, they said. And the men grabbed their crotches, air humped, and discussed via email what it would be like to “penetrate” women working at the company, according to the suit.

The complaint described dozens of instances of abuse, including an ongoing internal email that ranks “Riot Games Hottest Women Employees” and jokes about sex, rape, masturbation, torture and defecation. The suit looked to represent a class of potentially hundreds of women who have worked at Riot who were harassed, discriminated against, passed up for promotions or experienced other issues.

The workers are represented by Ryan D. Saba and Tyler C. Vanderpool of Rosen Saba LLP. The case is McCracken et al. v. Riot Games et al., (case number 18STCV03957), in the Superior Court of the State of California, County of Los Angeles.

Source: Law360.com

Oracle Settles 401(k) Participants’ ERISA Suit On Day Of Trial

A lawsuit filed by a group of its 401(k) plan participants against Oracle Corp. has been settled. A bench trial was avoided after the two sides told U.S. District Judge Robert E. Blackburn they had agreed to settle the group’s Employee Retirement Income Security Act (ERISA) class action. Judge Blackburn stopped what would have been the first day of trial just five minutes after it started. Lawyers for both sides notified the court of a preliminary settlement agreement. The trial was vacated pending further order.

The issue before Judge Blackburn was whether Oracle’s 401(k) savings and retirement plan made imprudent investments in a pair of funds. A group of plan participants filed suit against the company in early 2016, alleging that its 401(k) committee breached a fiduciary duty to tens of thousands of people and retained three poorly performing funds – a PIMCO fund, a TCM fund and an Artisan fund – at their expense.

A proposed class of participants and beneficiaries in the plan since January 2009 was certified in early 2018, but last March, Judge Blackburn granted Oracle summary judgment on claims that it paid excessive record-keeping fees to plan trustee Fidelity Management Trust Co., finding that the group hadn’t shown the fees were unreasonable.

The participants are represented by Jerome J. Schlichter, Michael A. Wolf and Kurt C. Struckhoff of Schlichter Bogard & Denton LLP. The case is Troudt et al. v. Oracle Corp. et al., (case number 1:16-cv-00175) in the U.S. District Court for the District of Colorado.

Source: Law360.com

PREMISES LIABILITY UPDATE

$13.5 Billion PG&E Settlement With Wildfire Victims Wins Bankruptcy Approval

Pacific Gas and Electric (PG&E) Co. received good news last month when a federal bankruptcy judge approved its $13.5 billion settlement with wildfire victims. This approval came on the same day the utility announced a $1.68 billion settlement with the California Public Utilities Commission (CPUC). Nearly a year after the solvent utility filed for Chapter 11 bankruptcy protection, citing tens of billions of dollars in liabilities as a result of the fatal Northern California wildfires sparked by its equipment, PG&E is beginning to show signs that it may meet a June 2020 deadline to exit bankruptcy in order to qualify for the $21 billion state wildfire insurance plan created by Assembly Bill 1054.

Upon receiving a letter from California Gov. Gavin Newsom on Dec. 13 stating that PG&E’s bankruptcy reorganization plan “falls woefully short” of the requirements needed to qualify for the state’s wildfire insurance fund, PG&E amended its plan to no longer require the governor’s sign off. U.S. Bankruptcy Judge Dennis Montali on Dec. 17 approved PG&E’s proposed restructuring support agreement with the tort claimants. The judge also approved the ad hoc subrogation group’s restructuring support agreement, saying he’s “comforted” by the existence of a backup plan.

U.S. District Judge James Donato, who is tasked with estimating wildfire liabilities in PG&E’s bankruptcy proceedings, said at the hearing that the proposed settlement is akin to an estimation of liability and that he’s not really needed anymore. “Settlement or not, you have both estimated the value to be $13.5 billion,” Judge Donato said.

PG&E also reached a $1.6 billion wildfire settlement agreement with the California Public Utilities Commission that prohibits the utility from seeking rate recovery of certain wildfire-related expenses and capital expenditures totaling $1.625 billion. It requires PG&E to undertake 21 shareholder-funded system enhancements totaling $50 million, including enhancing its tree-trimming and vegetation management programs and bolstering oversight. PG&E is also required to hire an independent wildfire safety auditor, according to the company’s filing with the CPUC.

The utility’s settlement with the official committee of tort claimants and firms representing individual victims who sustained losses during 2017 and 2018 wildfires include ones allegedly ignited by PG&E equipment. The settlement also covers claims related to the 2015 Butte Fire, the 2016 Ghost Ship Fire and the 2017 Tubbs Fire, although PG&E didn’t admit fault in the latter two fires.

Judge Montali lifted a stay on the litigation surrounding the fatal Oakland Ghost Ship warehouse fire, saying he will “allow them to have their day in court,” telling survivors and family of the victims, “I can’t imagine the horror you’ve been though.”

The tort claimants are represented by Robert A. Julian, Cecily A. Dumas, Eric E. Sagerman, David J. Richardson and Lauren T. Attard of BakerHostetler. The case is In re: PG&E Corp., (case number 3:19-bk-30088) in the U.S. Bankruptcy Court for the Northern District of California.

Source: Law360.com

AN UPDATE ON MOTOR VEHICLE LITIGATION

$3.5 Million Settlement In Tractor Trailer Death Case Where Truck Driver Claimed A Syncope Medical Event

A woman (hereinafter referred to as “our driver”) was killed in 2016 in a motor vehicle accident on her way home from work. We can’t use the decedent’s name. Pursuant to the settlement of the wrongful death case, her name is confidential. She was driving her vehicle eastbound on an interstate in North Alabama at the time of the accident. Our driver had just started a new job and had been married for less than a year. She and her family were relocating from Georgia to Alabama to begin a new chapter in their lives.

Our driver was properly wearing her seatbelt and obeying all traffic laws when a commercial motor vehicle operator traveling on the opposite side of the interstate lost control of his 18-wheeler and crossed the median into our driver’s lane, hitting her vehicle head-on. Unfortunately, she died at the scene of the accident after attempting an evasive maneuver to avoid the 18-wheeler by steering to her right. Neither the truck driver nor the trucking company corporate representative was aware of anything our driver could have done to avoid the crash. The Defendants’ accident reconstructionist agreed and said that there wasn’t anything reasonable that our driver could have done to avoid this crash.

The truck driver claimed that he experienced a syncope event causing him to pass out. Contradicting his claim, he was seen by multiple paramedics and EMTs and at no point told anyone he passed out or had a medical event. Nine hours later, at the suggestion of his insurance company representative, the truck dirver was driven to the hospital where he told the hospital that he suffered from a medical event and passed out at the wheel. The hospital diagnosed the driver with a possible syncope event with unknown etiology but did not do any testing nor did the doctor consider that he may have fallen asleep. There was no objective evidence at all that the truck driver experienced a medical event.

Our investigation revealed that there was substantial evidence that the truck driver fell asleep while driving. His daytime sleepiness was so severe that he complained of that fact 25 times in the three months leading up to the accident. The driver had even experienced a sleep-related driving incident shortly before the crash. He testified that he often got sleepy on days after he did not sleep well because his refrigerator unit on his truck wasn’t operating. The night before the crash the driver’s refrigerator unit was not working. The key testimony came from two motorists who saw this truck driver nodding off at the wheel in the miles leading up to this crash.

The circumstances of the crash reflect that it was the prototypical sleep-related incident. There are numerous articles on the characteristics of crashes that occur when drivers fall asleep. Our lawyers and investigators did extensive investigation. Top notch experts were hired to disprove the medical event claim. This incident fits squarely within those criteria even down to the time of day it occurred. Trucking companies and their insurers claiming that drivers experience medically related events to avoid liability is getting far too common. Many times, as was the case here, these incidents are caused by driver fatigue, distraction or inattention.

The case was settled for $3.5 million. Chris Glover, the managing attorney in our Atlanta office, handled this case through its entirety. Chris says he was humbled at the opportunity to help this family. As stated above, the name of the decedent cannot be discussed pursuant to the settlement agreement. If you have a question about a trucking case, contact Chris Glover at 800-898-2034 or by email at Chris.Glover@beasleyallen.com.

Alabama Supreme Court Sides With Family Of Man Killed By Drunk Driver In Its Recent Interpretation Of The Alabama Dram Shop Act

Drunk drivers claim the lives of 29 people every day and more than 10,000 lives every year. Between 2003-2012, drunk drivers killed 3,190 people on Alabama highways. Alabama’s Dram Shop Act is designed to prevent drunk driving deaths by holding establishments that continue to serve intoxicated customers strictly liable for death and injuries that are subsequently caused by those intoxicated customers. The Dram Shop Act provides:

(a) Every wife, child, parent, or other person who shall be injured in person, property, or means of support by any intoxicated person or in consequence of the intoxication of any person shall have a right of action against any person who shall, by selling, giving, or otherwise disposing of to another, contrary to the provision of law, any liquors or beverages, cause the intoxication of such person for all damages actually sustained, as well as exemplary damages.

Proof of a claim under this Act requires proof of three elements: The sale must have (1) been contrary to the provision of law; (2) been the cause of the intoxication; and (3) resulted in the Plaintiff’s injury. The ABC Board regulations prohibit establishments from serving any person who “appears, considering the totality of the circumstances, to be intoxicated.” Therefore, a Plaintiff must prove that the drunk driver was visibly intoxicated to hold an establishment liable under the Dram Shop Act.

Interestingly, establishments have started to argue that visible intoxication may only be proven with direct eyewitness testimony from the server. The Alabama Supreme Court recently rejected this argument in one of our cases, Wiggins v. Mobile Greyhound Park, 2019 WL 1975407 (Ala. 2019). In Wiggins, a drunk driver struck our clients from behind while driving his vehicle on I-10 in Mobile County. One person (Turner) was killed; two others (Wiggins and her minor child, D.T.) were seriously injured. The drunk driver was arrested at the scene and charged with DUI. He pled guilty to reckless murder as a result of the death of Turner.

The facts presented in opposition to summary judgment showed that the drunk driver had been drinking and gambling at the Mobile Greyhound Park for almost three hours before the wreck. The drunk driver testified that he drank two 12-ounce cans of Budweiser shortly before leaving the track. He then crashed into our clients within 15 minutes of consuming those two beers. Other drivers on the interstate observed him driving at a high rate of speed. The computer module in his vehicle showed that, prior to the wreck, the drunk driver was travelling at 97 mph. On the scene, the driver was stumbling around, smelled of alcohol and slurring his speech. His eyes were bloodshot. He was so intoxicated that when the officers put him the patrol car, he urinated in the backseat. The officers on scene confirmed that his intoxication would have been visible to anyone.

The drunk driver’s blood alcohol content (BAC) was at .202 initially and .183 a couple of hours later. Dr. Jack Kalin, a forensic pathologist, opined that he believed the driver may have consumed as many as 12 to 14 12-ounce beers or other alcoholic beverages, based upon his level of intoxication, BAC, etc. Dr. Kalin later testified that the driver ingested as many as 20 to 23 beers that night.

The trial court judge found that Plaintiff had produced no evidence that the driver was visibly intoxicated at the dog track. In addition, the trial court struck plaintiff’s claim for wrongful death damages. The dog park boldly argued that it could never be liable for death under the Dram Shop Act.

The Alabama Supreme Court reversed, holding that while there was no direct evidence that the driver appeared visibly intoxicated when he was served alcohol, there was sufficient evidence to find that he appeared visibly intoxicated minutes after leaving the dog track. The Court set out all of the evidence regarding the driver’s actions and concluded that Plaintiff “presented substantial evidence creating a genuine issue of material fact regarding whether McMillian appeared visibly intoxicated while purchasing alcohol from MGR.”

The Court reasoned that the trial court should have considered the totality of the circumstances, as required by the ABC regulation, in determining whether the drunk driver was visibly intoxicated. The Court further explained that circumstantial evidence of the driver’s “intoxication at the dog-racing track is entitled to the same weight as would be direct evidence regarding the same factual issue.”

In addition, the Court found that a Plaintiff must bring an action for death caused by the unlawful dispensing of alcohol under the Dram Shop Act and not under Alabama’s Wrongful Death Statute. This will allow Plaintiffs to recover both actual and exemplary damages when an establishment violates the Dram Shop Act instead of only punitive damages under the Wrongful Death Act. In addition, since the Dram Shop Act is a strict liability statute, there is no requirement to prove the exemplary damages by clear and convincing evidence.

Graham Esdale, Cole Portis, Kendall Dunson and Stephanie Monplaisir from Beasley Allen are handing this case, including the appeal. If you need more information contact Graham at 800-898-2034 or by email at Graham.Esdale@beasleyallen.com.

Sources: Drunk Driving, Nat’l Highway Traffic Safety Admin., nhtsa.gov; Sobering Facts: Drunk Driving in Alabama, Centers for Disease Control and Prevention, cdc.gov

Mercedes Reaches $20 Million Settlement With NHTSA Over Recalls

The National Highway Traffic Safety Administration (NHTSA) has reached a $20 million settlement with Mercedes-Benz USA to end its yearlong investigation into the automaker’s recall practices for more than 1.4 million vehicles. Mercedes-Benz will pay $13 million and another $7 million fine if it does not comply with the terms of the settlement, which requires the German automaker to meet with the regulator to discuss how it conducts recalls.

Last year, NHTSA opened an investigation after the automaker allegedly failed to make timely notifications about several recalls and was repeatedly late in providing relevant information to government authorities. NHTSA acting administrator James Owens said in a statement:

Safety is NHTSA’s top priority, and the agency’s reporting requirements help ensure that consumers are protected and given important information about how to get recalls repaired. These laws are critical to ensure NHTSA’s ability to provide oversight, and we expect manufacturers to follow their legal obligations to the agency and to consumers in carrying out safety recalls.

For some recalls, NHTSA said Mercedes didn’t notify drivers in a timely manner, didn’t submit all reports and didn’t initiate at least two recalls quickly enough. Although NHTSA determined that Mercedes didn’t intend to mislead the agency, it had informed customers after a 60-day deadline had passed in six recalls.

In determining the settlement amount, the agency said it weighed “the substantial financial investment” that Mercedes had made in developing its automated recall management tool, as well as its hiring of more personnel and ongoing training.

In a letter to Mercedes-Benz last year, NHTSA said the carmaker had numerous disruptions with the service. NHTSA said in the letter:

MB USA’s [vehicle identification number] service experienced approximately 49,000 failures in the first half of 2018. In addition, there have been search result discrepancies and quality concerns.

The agency also had concerns about the efficacy of the automaker’s vehicle information lookup tool, which allows car owners to enter their vehicle identification number to see if their vehicle is subject to a recall, according to the settlement agreement. Mercedes-Benz is developing more robust procedures for reporting noncompliance concerns, according to the agreement. It is also reviewing recent compliance issues.

Source: Law360.com

TOXIC TORT LITIGATION CONCERNS

Alabama Supreme Court Holds Jurisdiction Is Proper Over Out-Of-State Polluters

Personal jurisdiction has been a hot-button issue in courts throughout the country over the past several years because, as any lawyer knows, where you can file a lawsuit may be one of the most important factors in your case. Many personal jurisdiction decisions, however, have involved personal injury or product liability actions where the development, marketing, and sale of a product are key in the jurisdictional analysis. In such cases, a defendant’s intended market, and consequently, where it could anticipate being sued, is more readily apparent than other cases with markedly different facts.

Late last month, the Supreme Court of Alabama held that Alabama courts had jurisdiction over two lawsuits filed by the Water Works and Sewer Boards for the City of Gadsden and Town of Centre against numerous out-of-state companies who sell or use the chemicals per- and polyfluoroalkyl substances (PFAS) in their operations. These cases were originally filed in the Circuit Courts of Etowah County and Cherokee County against PFAS manufacturers and the carpet industry who uses them to impart stain, water, and soil-resistance to their flooring products.

The lawsuits allege that the defendants sold PFAS or discharged wastewater contaminated with PFAS despite knowing it would survive treatment by the local water treatment facility in Dalton, Georgia and ultimately contaminated the Conasauga River which is an upstream tributary of the Coosa River which provides water to each municipality. The Defendants’ activities allegedly caused the high levels of numerous PFAS compounds, which have been linked to various health issues, found at Gadsden and Centre’s water intakes.

Defendants sought dismissal on various grounds, but most argued that Alabama courts lacked personal jurisdiction to hear the cases, claiming that the “suit-related activity” (i.e. the sale or discharge of PFAS) occurred in Georgia rather than Alabama. The Etowah County and Cherokee County circuit courts disagreed, holding that personal jurisdiction was proper in Alabama because the Defendants “purposefully directed” water contaminated with PFAS at downstream users, including the water treatment facilities in Gadsden and Centre.

A total of eleven defendants filed petitions for writ of mandamus to the Alabama Supreme Court and asked the Court to overturn the trial courts’ decisions. The Court consolidated the eight separate petitions and heard oral arguments on June 4, 2019. The Court’s opinion discussed two issues on appeal: (1) whether the Defendants made a prima facie evidentiary showing in support of their motions to dismiss that required the Plaintiffs to substantiate the jurisdictional allegations in their complains; and (2) if so, whether specific jurisdiction was proper in Alabama when the use and discharge of these chemicals occurred upstream of Gadsden and Centre in Georgia.

In support of their motions to dismiss for lack of personal jurisdiction, most defendants submitted affidavits detailing their alleged lack of business contacts with Alabama and/or claiming they did not sale or use PFAS in their operations. The Court found that the Gadsden or Centre failed to substantiate their jurisdictional allegations against three defendants (Milliken & Company, Indian Summer Carpet Mills, and Kaleen Rugs, Inc.) and granted their petitions to have the complaints dismissed against them.

The bulk of the opinion focused on whether Alabama courts could exercise specific personal jurisdiction over the remaining defendants. This analysis examines whether an out-of-state defendants’ minimum contacts with the forum state justify haling it into the forum state. Unlike other states, Alabama’s long-arm statute does not provide a laundry list of activities that would subject a foreign defendant to jurisdiction there. Instead, Ala. R. Civ. P. 4.2(b) permits jurisdiction as long as it is consistent with both the Alabama and United States’ constitutions. Therefore, the court must closely examine the facts in each case to determine whether jurisdiction is proper.

The Defendants argued that personal jurisdiction was proper in Georgia because that is where the activities giving rise to this lawsuit (i.e. the sale or use of PFAS) occurred. Gadsden and Centre argued that the jurisdictional analysis used in the cases cited by the Defendants should be distinguished based on the unique facts of their cases currently before the Court; specifically, when a foreign upstream polluter knowingly impacts a downstream local water user.

The Supreme Court acknowledged that it had not been “presented with a factual scenario in which out-of-state defendants are alleged to have caused environmental pollution in another state but where the consequences of those acts caused harm in Alabama.” Being a case of first impression, the Court reviewed decisions issued by state and federal courts in Washington, Mississippi, and Ohio for guidance. Each of those courts held that personal jurisdiction was proper over an out-of-state defendant who committed an act which ultimately harmed a downstream user located in the forum state.

The Court agreed that the analyses used in those analogous cases was more applicable to the facts alleged by Gadsden and Centre than the cases cited by the Defendants. It favorably cited reasoning used by the Ohio Court of Appeals in Triad Hunter, LLC v. Eagle Natrium, LLC, 132 N.E.3d 1272 (2019):

Continuing to release a substance while knowing it travels to a jurisdiction is considered purposeful direction of efforts toward that jurisdiction…The aim can involve a forum resident or the forum state in general.

Applying this reasoning, the Court held that the remaining defendants “purposefully directed their actions at Alabama” and injured in-state residents. It further stated that “the physical entry of the pollution into Alabama’s water source creates the relationship among the remaining defendants, Alabama, and the actions”, thereby making jurisdiction proper. The Court concluded that it would not be burdensome for the defendants to litigate a case that was less than 100 miles away from Dalton. If you need more information on this decision, or on the cases in general, contact Rhon Jones, Section Head of our firm’s Toxic Torts Section, at 800-898-2034 or by email at Rhon.Jones@beasleyallen.com.

EPA Seeks Information On PFAS

This month, the U.S. Environmental Protection Agency (EPA) published an advance notice of proposed rulemaking seeking public comment by Feb. 3, 2020, on whether to add certain per- and polyfluoroalkyl substances (PFAS) to the list of toxic chemicals in the Toxic Release Inventory (TRI). This proposal is an important step under the EPA’s 2019 PFAS Action Plan to provide the public with more information on the use of these chemicals in various industries throughout the country.

Although PFAS have been linked with various health concerns, they currently are not regulated under the Safe Drinking Water Act. Instead, the EPA issued a lifetime health advisory in 2016 that offers a margin of protection throughout a person’s lifetime for adverse health effects resulting from exposure to these chemicals. Adding PFAS in the TRI would be a significant step toward regulating these chemicals because it would require certain purchasers to report how much they are using in their manufacturing operations.

The EPA is considering establishing a reporting threshold that is lower than the usual statutory thresholds (25,000 pounds for manufacturing or processing and 10,000 pounds for otherwise using listing chemicals) due to concerns over the compounds’ environmental persistence and bioaccumulation in humans and wildlife. Perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) have been the most widely studied PFAS compounds, but the PFAS chemical family contains up to 4,000 individual chemicals. Consequently, the EPA will also have to determine which specific PFAS could be subject to the TRI’s threshold reporting requirements. A bill approved by the House Energy and Commerce Committee seeks to add at least 13 PFAS compounds to this list, but this legislation has not been enacted.

One of the most common sources of potential exposure to PFAS is from industrial facilities that manufacture, process, or otherwise use PFAS. The EPA states that information on the releases and waste management quantities from such facilities could help it and the public identify some potential sources of exposure to PFAS. This would help individuals and water systems determine whether they should take appropriate actions to protect themselves from these chemicals.

Many states are not waiting on the EPA to enact the measures set forth in its Action Plan. Earlier this month, Ohio announced that it will test nearly 1,500 public drinking water systems that supply water for approximately 90% of the state’s population. Sampling is expected to be complete by the end of 2020. Ohio is among a growing list of states to file suit against companies that manufacture PFAS, which ultimately has contaminated property throughout a state. Last year, Ohio sued chemical giant DuPont, alleging that its plant near Parkersburg, West Virginia, dumped the PFAS chemical known as C8 into the Ohio River since the 1950s despite knowing of the associated health risks.

Unfortunately, those impacted by these chemicals have had to file lawsuits against polluters seeking compensation for the installation of filtration systems capable of removing these contaminants or switching water sources altogether. Rhon Jones from our firm, along with Roger H. Bedford of Roger Bedford & Associates, is proud to represent 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 lawyers are investigating other PFC contamination cases. If you have any questions on 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.

Sources: Cleveland.com

Honeywell Sued by Spinoff Garret Motion Over Asbestos Liabilities

Garret Motion says its indemnification agreement with Honeywell is “so one-sided as to be manifestly unconscionable.” The turbocharger maker that was spun off from Honeywell last year has sued the conglomerate over asbestos liabilities it says could drive it into “severe financial distress.”

Garrett Motion had agreed to reimburse Honeywell for 90% of liabilities arising from exposure to asbestos in Bendix automotive brake linings, with payments being limited to a maximum of $175 million a year. Thousands of individuals have filed Bendix-related claims. At the time of the spinoff, the liabilities were estimated at more than $1.3 billion.

In court papers filed on Dec. 2, 2019, Garrett alleged the indemnification agreement, which expires in 2048, is “unlawful, so one-sided as to be manifestly unconscionable, and thus unenforceable” and that Honeywell has materially breached the agreement.

Honeywell assumed asbestos liabilities after merging with Bendix’s former owner, Allied Signal, in 1999. It spun off Garrett in October 2018 as part of an effort to focus on its more consistent aerospace, non-residential construction, and industrial software markets. According to Garrett, Honeywell has forced Garrett to pay the asbestos bill “under the threat of improperly triggering a cascade of defaults on Garrett’s debts [arising from the spinoff] and driving Garrett into severe financial distress.”

Honeywell, however, says the spinoff of Garrett into a standalone company fully complied with applicable law. Honeywell said:

Contrary to Garrett’s assertion, the Bendix asbestos liabilities covered by the agreement in question originated in Honeywell’s former transportation systems business. That business sold Bendix automotive brake pads among other products and eventually became the Garrett spinoff. The agreement was structured and sized to enable Garrett to generate sufficient cash flow to make the required payments, subject to a cap and other protections, and operate in the marketplace as a standalone company. We remain confident that Garrett’s obligations to Honeywell are reasonable and the agreement is fully enforceable. We believe Garrett’s claims are meritless and will respond to them directly as appropriate in upcoming court filings.

Garrett also accuses Honeywell of materially breaching the indemnification agreement by failing to establish the merits of settlements it has reached with claimants.

Honeywell announced in August that the U.S. Securities and Exchange Commission had closed an investigation into its accounting for Bendix-related liabilities and had not recommended any enforcement action.

Source: https://www.cfo.com/legal/2019/12/spinoff-sues-honeywell-over-asbestos-liabilities/

An Update On The Roundup Litigation

Former Monsanto CEO Ordered To Testify At Roundup Trial

Former Monsanto Chairman and CEO Hugh Grant will have to testify in person in a St. Louis-area case that is to be tried this month. The suit is brought by a cancer-stricken woman who claims her disease was caused by exposure to the company’s Roundup herbicide and that Monsanto covered up the risks instead of warning consumers.

Grant, who led St. Louis-based Monsanto from 2003 until the company was sold to Bayer AG of Germany in June of 2018, spent a total of 37 years working for Monsanto. He was subpoenaed by lawyers for Plaintiff Sharlean Gordon to testify at a trial slated to begin on Jan. 27 in St. Louis County Circuit Court. Grant did not have to testify live at the three Roundup cancer trials that have taken place so far because they were all held in California. But because Grant resides in St. Louis County, Plaintiffs’ lawyers saw an opportunity to get him on the stand in person.

Lawyers for Grant have been fighting the subpoena, arguing that he is not a scientist or regulatory expert and he has already provided information in deposition testimony. Grant has also argued that he should not have to testify because he plans to be out of the country starting Feb. 9. But in a decision handed down on Dec. 5, a special master appointed to the case sided with Gordon’s lawyers and ruled that Grant was not entitled to an order quashing the subpoena for trial testimony.

The Special Master noted that: “Mr. Grant appeared for interviews on public radio representing that Roundup is not a carcinogen; in earnings calls for investors Mr. Grant personally responded that the classification of glyphosate as a probable carcinogen was ‘junk science;’ in 2016 Mr. Grant personally lobbied the Environmental Protection Agency (EPA) Administrator and the Agricultural Committee Chair of the topic of glyphosate,”

The Special Master further noted:

Although Mr. Grant does not have scientific knowledge that doubtless will be a significant component to this lawsuit, he was CEO of Monsanto for 15 years and took part in presentations, discussions, interviews and other appearances for Monsanto as CEO in which the topics of Roundup and glyphosate were explained, discussed and defended.

The Gordon trial was originally scheduled for August of this year, but was delayed as part of an effort to undertake settlement talks between Bayer and lawyers for tens of thousands of Plaintiffs who are suing Monsanto with claims similar to Gordon’s. Two other trials set for January, both in courts in California and both involving children diagnosed with cancer, were recently postponed due to continued settlement talks.

Gordon developed non-Hodgkin’s lymphoma after using Roundup herbicides for 25 years at her residence in South Pekin, Illinois, and has suffered extensive debilitation due to her disease. Gordon’s stepfather, who also used Roundup at the family home where Gordon lived into adulthood, died of cancer. The Gordon case is derived from a larger case filed in July 2017 on behalf of more than 75 Plaintiffs. Gordon is the first of that group to go to trial.

Source: US Right to Know

Roundup Litigation Team

Beasley Allen lawyers are currently representing hundreds of clients who have been exposed to Roundup and developed non-Hodgkin’s lymphoma. Our Roundup Litigation Team would welcome the opportunity to speak with you regarding a potential claim. 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.

UPDATE ON NURSING HOME LITIGATION

Nursing Home Update

Arbitration clauses are a tool used by companies to prevent individuals from using their seventh amendment right to jury trials. Most nursing homes require individuals to sign arbitration agreements – agreements to bring personal injury claims in arbitration instead of in court – before they will allow the resident to move in. Sometimes these agreements are signed by the individual whether they are mentally fit to sign them or not, and sometimes they are signed by family members.

Either way, they’re often signed out of fear of being rejected from the facility at a time when they are vulnerable and desperately need help for themselves or their loved one. Congress is considering whether these forced arbitration clauses should be allowed to exist, and in September the House of Representatives voted to pass the Forced Arbitration Injustice Repeal Act (FAIR Act).

This bill would stop companies from forcing their customers – like nursing home residents – to sign agreements that say private arbitrators rather than judges must handle their personal injury claims (or other disputes). In November, leading technology firms like Amazon and Google provided statistics showing that forced arbitration clauses build barriers to the fair resolution of claims, and that very few individuals actually come forward to arbitrate claims.

In the nursing home area, arbitration clauses and hearings reduce options available to injured individuals and grieving family members. If the FAIR Act passes through the Senate, that could mean positive change for individuals hurt or killed due to the negligence of nursing homes.

The Beasley Allen Nursing Home Litigation Team

Alyssa Baskam in our Atlanta office heads Beasley Allen’s Nursing Home Litigation Team. Currently, Susan Anderson also serves 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 says she became a trial lawyer so she could help people get through unimaginable hardships. She is 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, Alyssa would like to talk with you about working together on the case. You can contact Alyssa or Susan at 800-898-2034 or by email at Ayssa.Baskam@beasleyallen.com, or Susan.Anderson@beasleyallen.com.

An Update On Class Action Litigation

GM 2.4L Oil Consumption Class Action Settlement Approved

U.S. District Judge Robin L Rosenberg of the Southern District of Florida recently approved a proposed settlement for owners and lessees of 2010-2013 Chevrolet Equinox and GMC Terrain SUVs equipped with 2.4-liter Ecotec engines. The class action alleged defective piston rings wore prematurely and caused excessive engine oil consumption, which led to engine damage.

The consolidated class action lawsuit arose from three separate actions: Berman v. General Motors, Hindsman v. General Motors and Sanchez v. General Motors. GM instituted “special coverage adjustments” (SCAs) for 2010-2012 Terrain and Equinox models, then made a design (vehicle production) change in May 2013.

For model 2010-2012 SUVs, GM’s previously issued SCAs provided free piston assembly replacement for vehicles diagnosed with high oil consumption within specified time and mileage limitations, and also allowed then-current owners and lessees to submit reimbursement claims for out-of-pocket costs. However, no adjustment was issued for 2013 Chevy Equinox and GMC Terrain SUVs, and the SCAs for 2010-2012 models expired years ago.

According to the settlement, customers with the affected vehicles that were included in the previous 2010-2012 SCAs will be contacted with offers to submit claims for reimbursement for expenses previously incurred. Those expenses include items such as replacement of piston assemblies for excessive oil consumption and related car rental charges.

Time and mileage limitations for 2010 vehicles are 10 years or 120,000 miles after initial retail sale or lease, whichever comes first, and for 2011 and 2012 vehicles the limitations are seven years and six months or 120,000 miles after initial retail sale or lease, whichever comes first.

The limitations for the 2013 SCA are seven years and six months or 120,000 miles, whichever comes first. According to GM, the automaker believes a little more than 7% of model year 2013 customers will participate in the SCA.

The approved settlement also says customers who previously paid out-of-pocket for piston assembly replacements due to excessive oil consumption or other repairs solely required due to excessive oil consumption due to piston ring wear may file claims for reimbursement of expenses.

The settlement was put into a holding pattern when several customers objected to the terms and complained the settlement was unfair or unreasonable because it did not compensate them for all costs related to oil consumption. Objectors said the settlement didn’t compensate them for “reimbursement for engine repair or replacement, diminution in value at resale, and routine maintenance and repairs (such as oil changes).”

Judge Rosenberg rejected the proposed settlement due to objector claims, causing the parties to modify the proposed final settlement to include clarifying language that provides “reimbursement for repairs and/or replacement of engine components that are or were required and solely caused by excessive oil consumption due to piston ring wear.”

More than 14 months prior to the Equinox and Terrain action, Beasley Allen lawyers filed Monteville Sloan, Jr. et al. v. GM 16-cv-07244-EMC, a class action concerning defective piston rings installed in GM’s 5.3L V8 powered pickups, vans and full-sized SUVs (2010-2013 Avalanche, Colorado, Express, Silverado, Suburban, Tahoe, Canyon, Savana, Sierra, Yukon and Yukon XL). Our lawyers fully developed this theory – deposing GM engineers, hiring engine experts to identify the root cause of the defect and testing actual class vehicles. Our class action case is pending in federal court in the Northern District of California, before Judge Edward M. Chen. Class certification arguments are set for Jan. 16, 2020.

While our firm’s 5.3L class action will likely deliver relief similar to that offered in the 2.4L vehicle proposed settlement, the case allegations are distinct and the actions are not affiliated. Beasley Allen lawyers Clay Barnett, Mitch Williams, Leslie Pescia and Dee Miles are handling the 5.3L V8 class action in California.

The 2.4L GM oil consumption settlement is proceeding in the U.S. District Court for the Southern District of Florida – Berman, et al., v. General Motors, LLC.

If you need any more information contact Clay Barnett at 800-898-2034 or by email at Clay.Barnett@beasleyallen.com.

Honda Accused Of Hiding Acceleration Defect In Acura SUVs

A proposed class action lawsuit has been filed against Honda in federal court in Miami. It’s alleged the company has knowingly concealed an acceleration defect affecting several recent models of the carmaker’s luxury Acura line. Coral Gables, Florida, resident Sandra M. Ferrera’s complaint describes what she called a frightening and potentially dangerous safety flaw in which Acura MDX and RDX sport utility vehicles have allegedly responded unexpectedly when the driver steps on the accelerator pedal. Instead of speeding up, the vehicles decelerated rapidly and stalled before suddenly regaining power, accelerating and resuming normal performance. The complaint stated:

This dangerous issue can arise at high speeds, such as when changing lanes or passing other vehicles on the highway, when reliable acceleration is required for driver and passenger safety.

The complaint alleges further that the issue, said to affect 2016 to 2019 model year Acura MDX and RDX vehicles, leaves “drivers and passengers in a vehicle travelling [sic] at unexpected speeds in scenarios that may lead to loss of control, collision, bodily harm, and potentially death.” Thus far there have been no known deaths or injuries.

In the brief time that she has owned her 2019 MDX, Ms. Ferrera said she has experienced rapid deceleration twice while driving on a highway. The first time, she was changing lanes and her vehicle seemed to shut down then regained power, although the electronics and air conditioning kept working the whole time, she said. The second time, she was driving straight and not changing lanes, she said. Ferrera claims her husband has experienced similar issues while driving the vehicle.

Ms. Ferrera’s complaint also includes several examples of more than 50 complaints that she said had been filed with the National Highway Traffic Safety Administration (NHTSA) as of Friday by drivers of 2016-20 Acura MDX and RDX vehicles who described similar deceleration issues. She alleges that Acura owner American Honda Motor Co. Inc., which is based in Torrance, California, had exclusive knowledge of the defect but knowingly concealed it from her and other consumers and failed to issue a vehicle recall. The complaint said:

Plaintiff and other owners and lessees of the class vehicles have been misled by Acura’s long-term advertising and marketing campaigns regarding its vehicles’ exemplary safety, and omissions as to this defect.

The proposed class action is intended to compel Acura to issue a recall for all the class vehicles – which the complaint estimates number in the tens of thousands nationwide, including thousands in Florida – to fix the deceleration issue and also seeks compensation to owners and lessors for monetary losses. Ferrera claims that she and other potential class members have been deprived of the benefit of their bargain in buying or leasing their Acura MDX and RDX vehicles, saying she would not have paid the price she did had she known of the alleged defect and that the vehicles’ resale values will be damaged.

The suit is also seeking to recover damages for out-of-pocket expenses that owners incurred paying for repairs for the issue and for rental cars or other alternative transportation. The suit includes claims for violation of Florida’s Deceptive and Unfair Trade Practices Act for Ferrera and a proposed subclass of Florida Acura owners and lessors, and for claims of fraud by concealment, violation of the Magnuson-Moss Warranty Act and unjust enrichment for a nationwide class.

Ms. Ferrera is represented by Benjamin Widlanski, Harley S. Tropin, Gail A. McQuilkin and Robert J. Neary of Kozyak Tropin & Throckmorton LLP. The case is Ferrera v. American Honda Motor Co. Inc., (case number 1:19-cv-25153) in the U.S. District Court for the Southern District of Florida.

Source: Law360.com

Bausch Will Pay $1.2 Billion To End Valeant-Era Stock Suit

Bausch Health Cos. Inc. will pay $1.2 billion to settle a proposed securities class action accusing its former leaders of fraudulently inflating its stock when the Canadian company was known as Valeant Pharmaceuticals International Inc. The company assumed the Bausch name in 2018. The settlement with investors must be approved by U.S. District Judge Michael A. Shipp. The lawsuit claimed Valeant used a clandestine network of pharmacies to push high-priced drug prescriptions, sending the stock plummeting once price-gouging allegations surfaced.

Under the settlement, payouts will begin this month and will be funded by cash and revolving credit. The stock-drop litigation represents consolidated claims by investors who saw Valeant’s stock price fall from more than $250 a share in 2015 to below $10 two years later. The company has been fined by regulators and sued by investors who said it defrauded the market.

The investors alleged that Valeant had employees work under aliases for a company called Philidor Rx Services LLC that used deceptive practices to block generic alternatives from competing with Valeant’s branded drugs. Valeant duped insurers by changing prescription codes to ensure they were filled with Valeant-branded drugs and making claims for unrequested refills. Valeant also covered up the scheme by lying about the pharmacies’ ownership and issuing a series of false statements to investors.

The Plaintiffs are represented by Darren Robbins, James Barz, Frank Richter, Robert Robbins and Kathleen Douglas of Robbins Geller Rudman & Dowd LLP. The case is In re: Valeant Pharmaceuticals International Inc. Securities Litigation, (case number 3:15-cv-07658) in the U.S. District Court for the District of New Jersey.

Source: Law360.com

$8 Million Target Cardholder Settlement Over Hidden Fees Gets First Approval

An $8.2 million settlement between a class of Target cardholders and the retail giant won initial approval in California federal court last month, resolving fraudulent marketing claims over undisclosed card fees for failed transactions. Target Corp. agreed in June to pay $5 million in cash and offer a debt reduction of about $3.2 million, for a total settlement of $8.2 million, to all Target debit card holders in the U.S. who have incurred at least one returned payment fee since June 29, 2012.

U.S. District Judge M. James Lorenz signed off on the agreement, calling it “fair, reasonable and adequate.” He also certified the consumer class for settlement purposes. The June 2016 suit alleges that Target misrepresented the nature of its store debit card, and that the card agreement fails to properly describe how the card works, including the risk of fees when cardholders try to buy items with insufficient funds.

Target debit card transactions are processed differently than a traditional bank-issued debit card in that a regular bank card immediately approves or denies transactions based on available account funds, consumers said. But Target charges surprise fee penalties when customers try to buy things without enough money in their account, the complaint said. The retailer also doesn’t notify the cardholder’s bank about those failed transactions for several days after an attempted purchase, according to consumers.

Under the settlement agreement, class members will automatically receive cash without having to submit claims to the settlement administrator. In addition to monetary relief, Target will not charge returned payment fees for transactions less than $7 and will make efforts to inform cardholders about the risk of returned payment fees or overdraft fees from their bank.

The class is represented by Jeff Ostrow and Joshua R. Levine of Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Jeffrey Kaliel and Sophia Goren Gold of Kaliel PLLC and Hassan A. Zavareei, Andrea Gold and Andrew Silver of Tycko & Zavareei LLP. The case is Walters v. Target Corp., (case number 3:16-cv-01678) in U.S. District Court for the Southern District of California.

Source: Law360.com

DeVry Investors’ $27.5 Million Stock-Drop Settlement Gets Final Approval

An Illinois federal judge has given final approval to a $27.5 million settlement involving DeVry Education Group Inc.’s allegedly inflated graduate data. The class action settlement ends litigation over a group of DeVry investors’ allegations that the for-profit college intentionally mischaracterized its graduates’ career outcomes, causing inflated stock prices. U.S. District Judge Mary Rowland said the settlement was fair and reasonable.

No settling class member objected to the settlement. Other awards granted by the judge included $10,000 to reimburse lead Plaintiff Utah Retirement Systems for the time it spent helping to prosecute its claims and $184,192.62 in expenses. The full settlement will be funded by the company’s insurance carrier, and the company, now known as Adtalem Global Education Inc., will agree to the parties’ settlement while denying any wrongdoing. The settlement came after the investors interviewed 68 former DeVry employees and other knowledgeable people, requested details of Federal Trade Commission (FTC) and U.S. Department of Education investigations of DeVry, and got an economist to do a damages analysis.

The investors initially filed their suit in May 2016 against DeVry and some of its former officers, alleging that the college, then one of the largest postsecondary institutions in the country, mischaracterized the jobs and salaries its graduates achieved. The investors said:

These metrics were allegedly critical to DeVry’s investors who viewed superior outcomes as a sign of DeVry’s financial health and stability. When the truth regarding the company’s education metrics was allegedly disclosed to the market, the price of DeVry publicly traded common stock declined, causing damages to the proposed class

DeVry also settled a derivative suit involving some of the same allegations in court in Delaware.

The investors are represented by Carol C. Villegas, Nicole M. Zeiss, Mark Miller, Theodore Hawkins and Mark Willis of Labaton Sucharow LLP and Kenneth A. Wexler and Mark R. Miller of Wexler Wallace LLP. The case is Pension Trust Fund for Operating Engineers v. DeVry Education Group Inc. et al., (case number 1:16-cv-05198) in the U.S. District Court for the Northern District of Illinois.

Source: Law360.com

Milk Producers Agree To Pay $220 Million To End Price-Fixing Suit

Dairy producers and buyers have reached a $220 million settlement to end class action claims in Illinois federal court accusing the producers of orchestrating a price-fixing scheme through a now-canceled program to slaughter dairy cows. The settlement comes after several years of litigation in a case that had been set to go to trial in October. A successful mediation eventually led to a settlement that requires National Milk Producers Federation to gradually make payments totaling $220 million into a fund for its members’ consumers.

The lawsuit alleges Cooperative Working Together’s herd retirement program was portrayed to the public as an effort to sell dairy cows for beef, as a way to decrease an overabundance of milk in the nation’s marketplace. In actuality, the class claims, the program only suppressed the supply of raw milk, butter and cheese, driving up prices on those products as a result.

Although consumers are typically prohibited from bringing lawsuits alleging price fixing when the government is responsible for setting the price in certain industries – like public utilities – that rule doesn’t apply to the milk case, an Illinois federal judge said in an October 2016 ruling. The U.S. Department of Agriculture sets a minimum price for milk, but purchasers in the case claim the program to sell dairy cows to slaughterhouses caused prices to be inflated beyond that minimum, according to the judge.

In May, the producers told U.S. District Judge Nancy J. Rosenstengel in a summary judgment bid that the Clayton Act bars antitrust laws from blocking the existence and operation of not-for-profit agricultural organizations created for the purposes of mutual help. They also alleged the purchasers’ claim is blocked by the Capper-Volstead Act, which exempts all farm product marketing from antitrust liability. According to the proposed settlement, it was during the months-long mediation following that summary judgment motion that the producers decided to settle the case.

The dairy product purchasers are represented by co-lead counsel Don Barrett of Barrett Law Group PA, Dianne M. Nast of NastLaw LLC, Michael Roberts of Roberts Law Firm PA, Charles Barrett of Neal & Harwell PLC and Linda P. Nussbaum of the Nussbaum Law Group PC. The case is First Impressions Salon Inc. v. National Milk Producers Federation et al., (case number 3:13-cv-00454), in the U.S. District Court for the Southern District of Illinois.

Source: Law360.com

Endo’s $82.5 Million Settlement In Suit Over Opioid Drug Gets Final Approval

An $82.5 million cash settlement ending investors’ claims that pharmaceutical company Endo International PLC hid safety issues with an opioid drug received final approval in a Pennsylvania federal court last month.

The suit was filed in August 2017, alleging that Endo told the shareholders that clinical studies supported its U.S. Food and Drug Administration (FDA) application to label Opana – its second largest source of revenue – as “abuse-deterrent” when the data actually showed the drug was increasingly susceptible to abuse, court filings show. The lawsuit also said Endo hid the fact that injecting the drug sometimes led to fatal blood coagulation. Under the terms of the settlement agreement, the class is defined as people or entities that bought Endo shares between Nov. 30, 2012, and June 8, 2017. There are an estimated thousands of class members, and they have until Feb. 7, 2020, to submit their claims.

The investors say Endo used that cherry-picked data in conference calls and in U.S. Securities and Exchange Commission (SEC) filings, in violation of the Securities Exchange Act of 1934 and the Securities Act of 1933.

In August 2016, the FDA asked Endo to withdraw its supplemental application for Opana’s abuse-deterrent labeling, and the agency then urged the company to withdraw the drug from the market entirely in June 2017. Those two actions led company shares to fall about 5% and 19%, respectively, the investors said. When Endo pulled its drug from the market in July 2017, shares dropped another 2%. Shares of Endo fell from $34.97 to about $11.15 between May 2013 and July 2017, according to court filings.

The investor class is represented by Sharan Nirmul, Johnston de F. Whitman Jr., Michelle M. Newcomer, Margaret E. Mazzeo and Evan R. Hoey of Kessler Topaz Meltzer & Check LLP. The case is Bier v. Endo International PLC et al., (case number 2:17-cv-03711) in the U.S. District Court for the Eastern District of Pennsylvania.

Source: Law360.com

Volkswagen ‘Dieselgate’ Class Action Opens In United Kingdom

The biggest class-action suit started up last month in the United Kingdom (U.K.). Lawyers representing thousands of British drivers accused Volkswagen AG of misleading customers by installing emissions-cheating devices in diesel cars. The trial is in London’s High Court. Lawyers for nearly 100,000 motorists are asking the High Court to rule on whether software installed in the cars was a “defeat device” with the specific purpose of circumventing European Union emissions regulations.

The trial will also determine whether the High Court is bound by the finding of a German regulator that the software was a defeat device. “This trial will establish once and for all whether VW installed prohibited ‘defeat devices’ in affected vehicles and is a significant milestone in our clients’ attempts to hold VW accountable in the U.K.,” said Gareth Pope, head of group litigation at Slater and Gordon, which is representing more than 70,000 customers, in a statement. Volkswagen contends the drivers didn’t suffer any losses and that the software in question does not meet the legal definition of a prohibited device.

Also named in the class action are units of Volkswagen subsidiaries Audi, Skoda and SEAT. Volkswagen has faced numerous lawsuits after admitting in 2015 to manipulating millions of vehicles worldwide to fool emission tests. The company has said that 1.2 million of its vehicles in the U.K. were fitted with software that reduced readings of noxious car fumes and carbon dioxide pollution. So far, the “dieselgate” emissions scandal has cost Volkswagen billions of dollars, including in settlements with consumers and dealers in the U.S. and criminal and civil fines with countries worldwide. It has also led to arrests and guilty pleas from a number of Volkswagen executives and engineers responsible for implementing the widespread use of the defeat-device systems.

However, the automaker still denies that the software it used was an illegal defeat device in Europe and that it rolled out a fix to make cars in the U.K. compliant with emissions laws.

In April of 2019, former Volkswagen CEO Martin Winterkorn and four others were charged in Germany with fraud in connection with the emissions scandal. The claimants are represented by Tom De La Mare QC and Ben Jaffey QC of Blackstone Chambers instructed by Leigh Day and Slater & Gordon. The case is Anthony Crossley and others v. Volkswagen and others, (claim number: QB-2016-000011) in the High Court of Justice Queen’s Bench Division.

Source: Law360.com

THE CONSUMER CORNER

Senate Confirms MD Anderson’s Stephen Hahn As FDA Commissioner

The U.S. Senate has confirmed Dr. Stephen Hahn, chief medical executive of the MD Anderson Cancer Center in Houston, as the new Commissioner of the U.S. Food and Drug Administration (FDA). Dr. Hahn is board-certified as a radiation and medical oncologist and is widely esteemed in the U.S. medical community.

Dr. Hahn replaces Acting FDA Commissioner Dr. Ned Sharpless, who for months was considered the front-runner for the spot due to his experience and the continuity that his election would have brought.

Dr. Sharpless returned to his former position as director of the National Cancer Institute (NCI) on Nov. 1, which was the last day he could have served as Acting Commissioner under limitations set by the Federal Vacancies Reform Act.

The FDA has been under the reigns of Dr. Brett Giroir, assistant secretary for health at the U.S. Dept. of Health and Human Services, in the time between Dr. Sharpless’s departure and Dr. Hahn’s nomination.

As the top medical official at the University of Texas MD Anderson Cancer Center in Houston, Dr. Hahn managed a $5.2 billion operating budget, 20,300 employees, 7,000 trainees, and more than 3,000 volunteers. He has served in that role since 2018 and as the Gilbert H. Fletcher Memorial Distinguished Chair and professor of radiation oncology at MD Anderson since 2015.

U.S. News and World Report’s “Best Hospitals” survey ranked MD Anderson as the top U.S. hospital for cancer care in 2018. It is also one of the largest cancer hospitals in the world. Last year, MD Anderson’s cancer center treated more than 141,000 patients.

Dr. Hahn will manage a $5.7 billion budget and more than 17,000 people at the FDA, which is in line with his current experience. But his regulatory oversight will cover a spectrum of products including pharmaceutical drugs, pet food and veterinary products, medical devices, tobacco, alcohol, blood, bottled water, microwave ovens and nail polish, to name just a few.

Two of the biggest challenges Dr. Hahn faces are the national epidemics of opioid abuse and teen vaping. He will also manage an agency that is undergoing a seismic shift from slower, carefully considered reviews of new drugs and medical devices to speedy reviews – a change that many critics say is compromising public safety.

Sources: The New York Times, cancerhealth.com, foodsafetynews.com, fiercebiotech.com, U.S. News & World Report

Federal Legislation For Data Protection

The U.S. Senate conducted a hearing in December to discuss passing a federal privacy law. Two issues at the crux of the debate over the parameters of a federal privacy law were whether the legislation should override state protections and whether private citizens should be able to sue. Both Democrats and Republicans in Congress have agreed for months that they should pass America’s first comprehensive national privacy law, but questions have lingered over whether the law should include a private right of action, or preempt state laws.

Panelists from industry giants Microsoft Corp. and Walmart Inc., as well as two privacy advocacy groups, offered differing views on those issues in December at a hearing of the U.S. Senate Commerce Committee, whose chairman, Senator Roger Wicker, R-Miss., and ranking member, Senator Maria Cantwell, D-Wash., each recently circulated drafts of dueling privacy law proposals.

Laura Moy, associate professor at Georgetown Law’s Center on Privacy & Technology, argued that allowing both state attorneys general and private citizens to bring suits is essential for the new law to be meaningfully enforced. “It would be really problematic to rely on the FTC alone” to enforce privacy protections, particularly since the agency, which has repeatedly asked Congress for more resources, has admitted it only has 40 staff members working full-time on internet privacy and data security issues, Moy testified.

Michelle Richardson, director of privacy and data at the nonprofit Center for Democracy and Technology (CDT), suggested that there was room for a possible compromise on the issue. “We’d like to propose that the right solution probably lies somewhere between allowing individuals to sue over everything or sue over nothing,” she told lawmakers.

One of the proposals brought up at the two-hour hearing was allowing private citizens to sue for injunctive relief mandating business changes, but not for monetary damages. Microsoft’s Brill suggested she might be able to support such an idea. On the issue of preemption, industry representatives predictably said they would only support a federal law that replaces state protections, rather than a national standard that builds on state laws.

The CDT’s Richardson said her group would be willing to support a federal law that preempts state laws, so long as it is strong enough to justify that trade-off. “It took 15 years for all 50 states to eventually pass breach notification [laws], and that is a very narrow issue,” Richardson told lawmakers. “I’m concerned that if we have to go state by state to cover everyone in this country with a privacy law, we’ll be on the next version of the internet.”

The hearing came a week after Sen. Cantwell introduced a bill that, among other things, would create a new FTC privacy bureau that could seek fines for first offenses and allow both states and individuals to bring federal lawsuits. Senator Wicker has circulated a draft of his own version of the bill, which would preempt state privacy laws and does not include a private right of action.

Sen. Richard Blumenthal, D-Conn., said at one point during the hearing, “We have a lot of bills, but we have no federal law. I want a law. People are angry and scared more than ever before. They don’t care whether it’s a federal or state law, they want a law.” Given both parties’ interest in passing a federal privacy law, a federal law appears inevitable; however, it remains to be seen what the final version of that law will contain. If you need more information, contact Leslie Pescia, a lawyer in our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at Leslie.Pescia@beasleyallen.com.

Source: Law360.com

Arbitration Can Backfire On Corporate America

Arbitration clauses and class action waivers are often referred to as “a license to steal,” but in some cases, mass arbitration filings can be a tool to turn the tables on the proponents of class action waivers. The current rules of the American Arbitration Association essentially demand companies pay $1,900 to begin arbitrating with a single “Plaintiff.” When multiplied by thousands of Plaintiffs, the Defendant company is paying millions of dollars before any actual adjudication has begun. Defendant companies are quick to label this strategy as extortive and unethical, particularly when a mass of clients is represented by a single law firm, and seemingly have developed a novel strategy based on attorney-client ethics.

An example, the delivery food service DoorDash was recently embroiled in a mass arbitration campaign with more than 2,000 former employee couriers. DoorDash asserted to the American Arbitration Association (AAA) that it was not obliged to pay the $4.275 million in filing fees because it had “determined that there are significant deficiencies with the claimants’ filings,” according to an email attached as an exhibit to the employees’ motion. Because of DoorDash’s failure to pay the fees to launch the arbitrations drivers demanded in August, AAA terminated their cases on Nov. 8.

However, in late November, while arguing against a temporary restraining order filed by the employees after DoorDash required couriers to sign a new arbitration agreement with a different alternative dispute resolution forum (the International Institute for Conflict Prevention & Resolution (CPR) that would limit how many arbitration cases can move forward at once one day after AAA closed out thousands of cases, counsel for DoorDash raised the issue of how a singular Plaintiff’s firm can represent each of its thousands of employee clients.

In support, counsel for DoorDash submitted a declaration from University of California Hastings ethics professor Richard Zitrin narrating hypothetical ethical conflicts yet to materialize and recommending the court’s intervention in the employees’ representation. Importantly, Dr. Zitrin did not discuss any improper behavior asserted by counsel for the DoorDash employees.

DoorDash alleging unethical behavior against Plaintiffs’ counsel for the company’s employees while forestalling confrontation with their own allegations of unscrupulous conduct is bold and is highlighted further when DoorDash counsel informed the federal Court that DoorDash had just reached a class action settlement of employees’ claims in a separate state court action, thus negating the need to compel arbitration should an employee participate in the class action settlement.

As U.S. District Judge William Alsup pointed out, DoorDash imposed contracts requiring its workers to waive their right to sue or arbitrate as a class, yet the company was purporting to use a class action to settle the workers’ claims. Defendants deferred the question of how they could sidestep their own agreement to be answered by the presiding state-court judge.

DoorDash’s conflicting actions lead to the impression that companies like DoorDash are pitting state courts against new private arbitrators in order to determine how to most competitively undermine employee rights. Filings in the DoorDash case in federal court also suggest that AAA is thinking about changing its rules to reduce companies’ fees to $300 a case, rather than $1,900, when workers assert masses of arbitration demands. Other prospective Defendants may, like DoorDash, require workers to agree to arbitrate in forums with rules that curb mass filings.

Instead of challenging the ethicality of one law firm representing multiple clients in arbitration, the hypothetical conflict raised by DoorDash would ideally be relieved by a reversion back to adjudication of all claims in state court rather than a “recalibrating” against “mass arbitration schemes” defined and implemented by corporations partnered with private arbitration organizations. Support of this reversion was signaled from Judge Alsup’s California Court intent to authorize the petitioners to seek discovery from DoorDash on its access to signed arbitration contracts and whether the company worked with CPR in writing new arbitration rules to benefit itself.

Stay tuned on this issue, but at the risk of being repetitive, consumers should refuse to sign these oppressive agreements. Just draw a line through the arbitration language in whatever agreement when you sign it and you’ve likely done just enough to preserve your right to a trial by jury.

If you need more information on the subject, contact Lauren Miles, a lawyer in our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at Lauren.Miles@beasleyallen.com.

Legislation To Define ‘Natural’ For Cosmetics Marketing

On Nov. 5, 2019, Rep. Sean Patrick Maloney and Rep. Grace Meng, both from New York state, introduced the Natural Cosmetics Act in the U.S. House of Representatives. The objective of the Act is to formally define the terms “natural” and “naturally derived ingredient” as they pertain to beauty and personal care products.

The marketing of cosmetics and personal care products is largely unregulated. Cosmetic companies have essentially been allowed to regulate themselves and the Food and Drug Administration (FDA) has almost no authority to stop or prevent the distribution of misbranded cosmetic products. As Rep. Maloney pointed out in his announcement of the bill, “[r]ight now, the FDA doesn’t consider it misbranding for companies to label products as ‘natural,’ even if they contain toxins like coal tar, asbestos, and other harmful chemicals.” Rep. Maloney said that the bill would “set the standard for ‘natural’ personal care products and do right by American consumers by putting transparency first.”

The Natural Cosmetics Act would treat cosmetics with packaging or labeling using the term “natural” as misbranded unless the product meets certain standards. Additionally, the Act would allow the FDA to intervene when companies are found to be marketing, selling or distributing misbranded products.

The Act differentiates between products using the term “natural” pertaining to the cosmetic overall and products using the term “natural” to describe one or more of the products’ ingredients. As to products using the term “natural” pertaining to the cosmetic overall, the Act would consider the product as misbranded unless the product contains:

  • at least 70 percent natural substances (other than water and salt);
  • no fragrance ingredient other than a natural substance or naturally derived ingredient; and
  • other than natural substances and water, contains only naturally derived ingredients except to the extent a naturally derived ingredient is not available for a specific function or is otherwise not feasible.

With respect to products using the term “natural” to describe one or more of the products’ ingredients, the Act would consider the product as misbranded unless:

  • the ingredient statement identifies natural ingredients individually with the terms “natural” or “naturally derived ingredient”;
  • the listing of each such ingredient is followed by a reference mark; and
  • the labeling contains the definition of such terms below the ingredient statement.

In addition to these criteria, products using the term “natural” would be considered misbranded if made using any of the following:

  • Alkoxylation (including ethoxylation and propoxylation) using ethylene oxide, propylene oxide, or other alkylene oxides;
  • Deterpenation (other than with steam);
  • Halogenation as the main reaction;
  • Ionizing radiation;
  • Sulphonation as the main reaction;
  • Treatment with ethylene oxide;
  • Treatment using mercury.

The Act defines the term “natural” as any chemical substance that is naturally occurring and that is also unprocessed; processed only by manual, mechanical, naturally derived solvent or gravitational means; by dissolution in water or steam; by flotation, or by heating solely to remove water; or extracted from air by any means. The term “natural” does not include petroleum and petroleum derived ingredients.

The Act defines the term “naturally derived ingredient” as any substance where the starting material is of mineral, plant, microbe or animal origin but has been chemically processed, any substance where the starting material is of mineral, plant, microbe or animal origin but has been chemically processed and combined with other ingredients, excluding petroleum and fossil fuel-derived ingredients, or an ingredient that is derived from a plant feedstock and bio-manufactured using processes like fermentation, saponification, condensation or esterification in order to improve performance or make the ingredient biodegradable or sustainable.

As to enforcement, the Act would give the FDA authority to provide notice to consumers of misbranded products on the FDA website and request that a manufacturer or distributor voluntarily recall a misbranded product. Additionally, the Act would give the FDA authority to issue an order requiring any person distributing a misbranded cosmetic to immediately cease distribution.

A number of leading brands in the dubbed “clean beauty” space have also joined Representatives Maloney and Meng in supporting the Bill. Beautycounter founder and CEO Gregg Renfrew has been a vocal advocate and organizer for regulatory change in the cosmetics and personal care industry since 2013. According to Renfrew, “[w]hile words like ‘natural’ can signal a safer product, there are currently no industry standards. For years, Beautycounter has been asking Congress to create clear standards for marketing terms and so we are thrilled to support the Natural Cosmetics Act. This landmark bill sets clear and reasonable standards for companies which want to claim an ingredient or product is natural.”

If you need additional information, contact Beau Darley, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at Beau.Darley@beasleyallen.com.

Sources: HR 5017 IH; https://seanmaloney.house.gov/media-center/press-releases/maloney-introduces-landmark-cosmetics-reform-bill and https://www.cosmeticsdesign.com/Article/2019/11/06/Natural-Cosmetics-Act-to-set-legal-definition-of-natural

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

The following is the January update on the types of cases that Beasley Allen lawyers will start the new year 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. Information on the current litigation will be set out below for each Section.

Personal Injury & Products Liability Section

The personal Injury & Products Liability Section is handling cases in a number of areas. Currently, the Section has 18 lawyers and 31 support staff. Sloan Downes is the Section Director. The lawyers and support staff are working on the areas of litigation set out below. The primary lawyer contact will be listed for each type case. Following is the list of current activity in the Section.

Product Liability – We continue to focus on accident cases involving automobiles, heavy equipment and consumer products. Some of these auto cases involve single-vehicle crashes, while others involve multiple-vehicle accidents. We would like to review any case involving catastrophic injury or death. Contact: Cole.Portis@beasleyallen.com, Greg.Allen@beasleyallen.com, Ben.Baker@beasleyallen.com, Chris.Glover@beasleyallen.com, Mike.Andrews@beasleyallen.com, Graham.Esdale@beasleyallen.com, Labarron.Boone@beasleyallen.com or Rob.Register@beasleyallen.com.

Truck Accidents – There are significant differences between handling an interstate trucking case and other car wreck cases. It is imperative to have knowledge of the Federal Motor Carrier Safety Regulations, technology, business practices, insurance coverages, and to have the ability to discover written and electronic records. Expert testimony is of utmost importance. Accidents involving semi-trucks and passenger vehicles often result in serious injuries and wrongful death. Trucking companies and their insurance companies almost always quickly send accident investigators to the scene of a truck accident to begin working to limit their liability in these situations. Our lawyers, staff and in-house accident investigators immediately begin the important task of documenting and preserving the evidence. We would like to review any case involving catastrophic injury or death. Contact: Chris.Glover@beasleyallen.com, Mike.Crow@beasleyallen.com, Dan.Philyaw@beasleyallen.com or Donovan.Potter@beasleyallen.com.

On-the-job Product Liability – Many times product claims arise from worker’s compensation claims. After we investigate the circumstances that caused the injuries, many times we discover a defective machine may be the cause of the injuries. Contact: Kendall.Dunson@beasleyallen.com or Evan.Allen@beasleyallen.com.

Boeing Litigation – Lawyers in the Section, led by Mike Andrews, are investigating and filing suits arising out of the two crashes involving Boeing planes that have received tremendous public interest and concern. The first suit was filed on June 13. Mike is handling the litigation and has filed several other lawsuits. Others are being prepared for filing. Contact: Mike.Andrews@beasleyallen.com.

Aviation Accidents – Aviation litigation can be extremely complex and often involves determining the respective liability of manufacturers, maintainers, retrofitters, dispatchers, pilots and others. In some circumstances, the age of the aircraft involved can limit or completely preclude an injured party from compensation. Soaring through the sky hundreds of miles an hour, thousands of feet above the ground in an airplane or helicopter leaves little room for error. One small mechanical problem, misjudgment or faulty response in the air can spell disaster for air passengers and even unsuspecting people on the ground. We are handling cases involving all types of aircraft, military and civilian. Contact: Mike.Andrews@beasleyallen.com or Cole.Portis@beasleyallen.com.

Heavy Truck Product Liability Claims – Tractor trailer and other heavy trucks are not required to contain many of the same protections for occupants as smaller passenger cars. They can contain dangerous defects putting the truck driver or passengers at risk of serious injury or death. These trucks many times have particularly weak roofs that crush in rollovers. The passenger compartments are often not protected by effective cab guards, and this allows loads to shift into the truck cab. We would like to review any case involving catastrophic injury or death. Contact: Ben.Baker@beasleyallen.com or Greg.Allen@beasleyallen.com.

Defective Tires – Tire failure can result in a serious car crash and even a vehicle rollover accident, causing serious injury or death to vehicle occupants. Air, heat and sunlight can cause the rubber in tires to break down. When a tire is defective, potentially serious problems like detreads and blowouts can occur long before the tire would be expected to wear out. If the tire failure is the result of design or manufacturing defects, and the manufacturer is aware of the problem, they have an obligation to alert consumers to the potential danger. Contact: Ben.Baker@beasleyallen.com or Labarron.Boone@beasleyallen.com.

Premises Liability – In premises liability claims, patrons of establishments are often injured because the premises, for some reason, was unsafe. Premises liability claims can take many forms, including when severe injury or death results when a building or structure collapses, merchandise falls, during swimming pool accidents, due to poor lighting, falling debris, unsecured fixtures and furniture that falls or tips over, unsecure drainage that creates drowning or fall hazards, slippery surfaces, and inadequate maintenance. Beasley Allen has successfully handled a number of premises liability cases, and we would like to investigate any cases where severe injury or death results. Contact: Mike.Crow@beasleyallen.com, Ben.Locklar@beasleyallen.com, Warner.Hornsby@beasleyallen.com, or Ben.Keen@beasleyallen.com.

Negligent Security – Under the law, owners of establishments owe a duty to patrons and guests to ensure that the premises are reasonably safe and secure from anticipated dangers. These cases normally take the form of shootings, fights, stabbings, or other physical violence (including sexual assault) where severe injury or death occurs due to the establishment owner’s failure to take reasonable safety measures. When this occurs, the establishment owner, as well as those contractors charged with security, may be held responsible for the injuries suffered by individuals or groups of individuals on the premises. While the laws vary from state to state, our firm is actively investigating and litigating these cases where severe injury or death results. Contact: Parker.Miller@beasleyallen.com, Rob.Register@beasleyallen.com or Donovan.Potter@beasleyallen.com.

Nursing Home Abuse and Neglect – Nursing homes are supposed to be in the business of providing skilled nursing care to elderly and disabled residents. Unfortunately, statistics indicate residents in nursing homes suffer abuse and neglect more and more frequently at the hands of nursing home corporations. In many cases residents have died or have been severely abused as a result of neglect. They may suffer physical abuse, emotional or psychological abuse, or neglect. We are investigating cases involving serious injury or death resulting from nursing home abuse or neglect. Contact: Alyssa.Baskam@beasleyallen.com.

The Mass Torts Section

The Mass Torts Section is handling a number of cases involving pharmaceuticals and medical devices. Currently, there are 32 lawyers and 87 support staff in the Section. Melissa Prickett, a lawyer, serves as the Section Director. The lawyers and support staff are working in the areas of litigation set out below. The contact lawyer will be supplied in each case. The following are the current areas of litigation in the Section.

Talcum powder and ovarian cancer – As many as 2,200 cases of ovarian cancer diagnosed each year may have been caused by regular use of talcum powder. Talc is a mineral made of up various elements including magnesium, silicon and oxygen. Talc is ground to make talcum powder which is used to absorb moisture and is widely available in various products including baby powder and adult products including body and facial powder. Talc products used regularly in the genital area increase the risk of ovarian cancer. In February 2016, a jury found Johnson & Johnson knew of the cancer risks associated with its talc products but failed to warn consumers and awarded the family of our client $72 million. She died of ovarian cancer after using J&J talc-containing products for more than 30 years. This case was the start of the litigation that followed. Ted Meadows heads up our talc litigation team handling individual claims. Leigh O’Dell heads up the team of lawyers handling the talc multidistrict litigation (MDL). Contact: Ted.Meadows@beasleyallen.com, Leigh.Odell@beasleyallen.com, Brittany.Scott@beasleyallen.com or Melissa.Prickett@beasleyallen.com.

JUUL vaping devices – The use of JUUL and other vaping devices has reached epidemic levels, especially among teenagers and young adults. JUUL and other vape device manufacturers fueled this epidemic by targeting and deceiving youth and adolescents with misleading social media marketing and sweet, fruit-flavored pods containing high levels of nicotine. Use of these products has been associated with numerous adverse health effects, such as seizures, nicotine addiction, nicotine poisoning, breathing problems, behavioral and psychological problems, and other serious health conditions. Contact: Joseph.Vanzandt@beasleyallen.com, Sydney.Everett@beasleyallen.com or Melissa.Prickett@beasleyallen.com.

Bone Cement – The type of bone cement used during knee replacement surgery affects the outcome of that surgery. High viscosity bone cement (HVC) boasts shorter mixing and waiting times and longer working and hardening phases, meaning surgeons can handle and apply the cement earlier than with low- or medium-viscosity cements. Although HVC may be more convenient to use, there is mounting evidence that the bond it produces is not as strong. Researchers have observed more early failures with the use of HVC, even when used in combination with a previously well-performing implant. Complications associated with knee replacements performed with HVC include loosening and debonding (where the implant fails to adhere to the cement interface on the shin or thigh bone), which requires revision surgery. Other reported problems include new onset chronic pain and instability. Contact: Chad.Cook@beasleyallen.com, Ryan.Duplechin@beasleyallen.com or Melissa.Prickett@beasleyallen.com.

Zantac and cancer risk – For nearly four decades, tens of millions of consumers have used Zantac as an antacid to help treat symptoms of acid reflux. However, the public is now learning that studies have long shown that Zantac is linked to cancer in animals and humans. Lawyers at Beasley Allen are currently investigating claims of those who have used Zantac and have subsequently been diagnosed with cancer. Contact: Melissa.Prickett@beasleyallen.com, Matt.Munson@beasleyallen.com, or Frank.Woodson@beasleyallen.com.

Proton Pump Inhibitors – Proton pump inhibitors (PPIs) such as Nexium, Prilosec and Prevacid were introduced in the late 1980s for the treatment of acid-related disorder of the upper gastrointestinal tract, including peptic ulcers and gastrointestinal reflux disorders, and are available both as prescription and over-the-counter drugs. Beasley Allen is currently investigating PPI-induced Acute Interstitial Nephritis (AIN), which is a condition where the spaces between the tubules of the kidney cells become inflamed. The injury appears to be more profound in individuals older than 60. While individuals who suffer from AIN can recover, most will suffer from some level of permanent kidney function loss. In rare cases individuals suffering from PPI-induced AIN will require kidney transplant. Contact: Navan.Ward@beasleyallen.com or Melissa.Prickett@beasleyallen.com.

Metal-on-Metal Hip Replacement parts – The FDA has ordered a review of all metal-on-metal hip implants due to mounting patient complaints. Problems with metal-on-metal include, but are not limited to loosening, metallosis (ie: tissue or bone death), fracturing, and/or corrosion and fretting of these devices, which require revision surgery. Many patients that require revision surgery due to these devices suffer significant post-revision complications. We are investigating all cases involving metal-on-metal hip implants, including the DePuy Orthopaedics ASR XL Acetabular System and the DePuy ASR Hip Resurfacing System, recalled in August 2010; the Stryker Rejuvenate and ABG II modular-neck stems, recalled in July 2012; the Stryker LFIT Anatomic v40 Femoral Head (recalled August 29, 2016); the Zimmer Durom Cup, and the Biomet M2A “38mm” and M2A-Magnum hip replacement systems, which have not been recalled. Reported problems include pain, swelling and problems walking. Contact: Navan.Ward@beasleyallen.com or Melissa.Prickett@beasleyallen.com.

IVC Filters – Retrievable IVC filters are wire devices implanted in the vena cava, the body’s largest vein, to stop blood clots from reaching the heart and lungs. These devices are used when blood thinners are not an option. Manufacturers include Bard, Cook and Johnson & Johnson. While permanent IVC filters have been used since the 1960s with almost no reports of failure, retrievable IVC filters were introduced in 2003, promoted for use in bariatric surgery, trauma surgery and orthopedic surgery. Risks associated with the retrievable IVC filters include migration, fracture and perforation, leading to embolism, organ damage and wrongful death. Contact: Melissa.Prickett@beasleyallen.com.

Zofran – Manufactured by GlaxoSmithKline, Zofran (ondansetron) was approved to treat nausea during chemotherapy and following surgery. Zofran (ondansetron) works by blocking serotonin in the areas of the brain that trigger nausea and vomiting. Between 2002 and 2004, GSK began promoting Zofran off-label for the treatment of morning sickness during pregnancy, despite the fact the drug has not been approved for pregnant women and there have been no well controlled studies in pregnant women. The FDA has received nearly 500 reports of birth defects linked to Zofran. Birth defect risks include cleft palate and septal heart defects. Contact: Roger.Smith@beasleyallen.com or Melissa.Prickett@beasleyallen.com.

Physiomesh – Intended for hernia repair, Physiomesh is a flexible polypropylene mesh designed to reinforce the abdominal wall, preventing future hernias from occurring. Though there are several types of hernias, most occur when an organ or tissue protrudes through a weak spot in abdominal muscles. The condition often requires surgery where mesh, like Physiomesh, which is intended for laparoscopic use, is used to fill in a hole in the abdominal muscle or laid over or under it to prevent any further protrusions. Independent studies have found Physiomesh to lead to high rates of complications including hernia reoccurrence, organ perforation, mesh migration, sepsis and even death. In May 2016, Ethicon issued a market withdrawal of Physiomesh in the U.S. and recalled the product in Europe and Australia. We are currently investigating cases involving serious injury or death as a result of Ethicon’s Physiomesh. Contact: Melissa.Prickett@beasleyallen.com.

Opioids – Opioid abuse has reached epidemic proportions in the United States. According to the Department of Health & Human Services, 12.5 million people misused prescription opioids and 33,091 Americans died from opioid overdose in 2015 alone. These medications provide important pain relief for many. However, over the years, drug companies inflated the effectiveness of delayed-release medications like OxyContin and downplayed their addictive properties, creating conditions ripe for abuse. We are investigating cases involving opioid-related deaths and overdose requiring hospitalization, as well as cases involving treatment for addiction to prescription opioids. Contact: Melissa.Prickett@beasleyallen.com, Roger.Smith@beasleyallen.com or Liz.Eiland@beasleyallen.com.

Opioids and Infants – The opioid epidemic has also taken its toll on the most vulnerable among us. According to the National Institute on Drug Abuse, every 25 minutes, a baby is born addicted to opioids – a condition called Neonatal Abstinence Syndrome (NAS). Babies with NAS suffer painful symptoms of opioid withdrawal in the hours and days after they are born and are more likely to suffer long-term complications like developmental delays and hearing or vision impairment, compared to babies born to mothers who did not use opioids. We are investigating cases on behalf of children who were born with NAS after their mothers were prescribed opioids before or during pregnancy. Contact: Melissa.Prickett@beasleyallen.com, Roger.Smith@beasleyallen.com or Liz.Eiland@beasleyallen.com.

Consumer Fraud & Commercial Litigation Section

The Consumer Fraud & Commercial Litigation Section has 14 lawyers and 20 support staff. Michelle Fulmer is the Section Director. Lawyers and support staff in the Section are working on the litigation areas set out below. The primary lawyer contact will be supplied for each type case.

State and Municipalities Litigation – Our firm has represented numerous states throughout the country. These cases have been handled through the Attorneys General and have involved various civil actions. Many times, individuals are barred from bringing a consumer fraud type claim, but the state government is not. We recently concluded litigation in seven of eight states for a recovery dealing with Medicaid fraud. In addition, we are representing five states in related pharmaceutical pricing litigation. For more information, contact Dee.Miles@beasleyallen.com or Alison.Hawthorne@beasleyallen.com.

False Claims Act / Whistleblower- We are handling and investigating whistleblower claims of government fraud ranging from Medicare/Medicaid to military contracts, and any other type of fraud involving a government contract. Under the False Claims Act (FCA) the whistleblower is entitled to a percentage of the recovery. Studies show that as much as 10% of Medicare/Medicaid charges are fraudulent. Common schemes involve double-billing for the same service, inaccurately coding services, and billing for services not performed. Additionally, the Commission on Wartime Contracting has warned that the lack of oversight of government contractors has led to massive fraud and waste. Contact: Lance.Gould@beasleyallen.com, Larry.Golston@beasleyallen.com, Leslie.Pescia@beasleyallen.com or Tyner.Helms@beasleyallen.com.

Pension Plan Litigation (ERISA) – Many large corporations are improperly funding their Employee Benefit plans and / or transferring these Pension Plans to other entities that cannot properly fund the plans. The result is that employees’ life savings for retirement is either lost, compromised or reduced substantially. These transfers and inadequate funding measures are all designed to increase earnings for the corporations at the expense of its employees. Our firm is committed to pursuing the preservation of employee benefits / retirement by challenging these abuses through ERISA litigation and class actions. For more information contact Dee.Miles@beasleyallen.com, James.Eubank@beasleyallen.com or Rachel.Boyd@beasleyallen.com.

Auto Defect Class Actions – We are continuing to work on numerous auto defect class actions against many of the major automobile manufacturers like VW, Toyota, General Motors, Ford and even some suppliers. These cases continue to be filed because of corporate misconduct in designing and manufacturing unsafe vehicles that are purchased by consumers, corporations and state agencies. We continue to investigate these automobile problems for class relief treatment. Contact: Clay.Barnett@beasleyallen.com, Dee.Miles@beasleyallen.com or Leslie.Pescia@beasleyallen.com.

Life Insurance Fraud – We have uncovered alleged fraudulent accounting practices by life insurance companies concerning premium increases. The accounting method may result in the policyholder being charged excessive insurance premiums. A client that has a life insurance policy and has been notified of a substantial increase in premium payments, or if they have been told their policy’s “cost of insurance” has increased, may have a valuable legal claim that our firm would like to investigate. Contact: Dee.Miles@beasleyallen.com, Rachel.Boyd@beasleyallen.com, or Paul.Evans@beasleyallen.com.

Property Insurance Fraud – Insurance companies nationwide are unjustly depreciating labor costs on adjusted property claims (roof or fence damage for example). The depreciation of labor costs is contrary to many insurance policy forms and leads to policyholders either being undercompensated for their claims or not compensated at all as they fail to meet their deductible once labor costs are depreciated. If you have had an insurance claim on your property in the past six years, then we would like to review the adjuster’s estimate and your homeowner’s or manufactured home policy as you may have a case. Contact: Dee.Miles@beasleyallen.com, Rachel.Boyd@beasleyallen.com or Paul.Evans@beasleyallen.com.

Supplemental Disability Insurance Denial – We have successfully litigated bad faith denial of benefits cases for years in the disability insurance area and we are interested in reviewing cases involving denial of Individual and Group disability insurance. These cases can be either employee sponsored benefit plan policies (ERISA), individually owned policies or non-ERISA governed supplemental insurance. Contact: Larry.Golston@beasleyallen.com, Rachel.Boyd@beasleyallen.com, James.Eubank@beasleyallen.com or Paul.Evans@beasleyallen.com.

Health Care Fraud – We are looking into cases of fraud within the health care industry. These may include cases dealing with pricing, off-label prescriptions, or other health care abuse. Contact: Alison.Hawthorne@beasleyallen.com or Dee.Miles@beasleyallen.com.

Self-funded Health and Pharmacy Insurance Plans – Third Party Administrators and Pharmacy Benefit Managers may have been charging unauthorized fees to self-funded insurance health and pharmacy benefit plans. These extra fees may be in violation of the contracts with the self-funded plan and a breach of fiduciary duty under ERISA. We are looking into these cases on behalf of self-funded plans. Contact: Alison.Hawthorne@beasleyallen.com.

Pharmaceutical Pricing – We are continuing to handle claims involving chain pharmacies falsely reporting their generic pricing transactions to state Medicaid agencies. This misconduct has led to millions of dollars in overpayments by Medicaid agencies for generic drugs to the chain pharmacies. Contact: Alison.Hawthorne@beasleyallen.com or Leslie.Pescia@beasleyallen.com.

Antitrust – We are handling claims related to the violation of federal and state antitrust laws. We are currently involved in claims alleging a wide array of anticompetitive conduct, including illegal tying, exclusive dealing, monopolization, and price fixing. Contact: Dee.Miles@beasleyallen.com, Alison.Hawthorne@beasleyallen.com or Leslie.Pescia@beasleyallen.com.

Sexual Harassment – Sexual harassment is outlawed by Title VII of the Civil Rights Act of 1964 because it is a form of discrimination, as explained by the Equal Employment Opportunity Commission (EEOC). The agency states “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.” We are looking at any claim involving extreme sexual harassment or sexual assault. Contact: Larry.Golston@beasleyallen.com, Lauren.Miles@beasleyallen.com or Leon.Hampton@beasleyallen.com.

Employment Law – We are handling employment cases. Situations that may be addressed in this area include minimum wage and overtime pay, unfair labor practices, all types of discrimination, employee benefits, and whistleblower claims. Contact: Larry.Golston@beasleyallen.com, Lauren.Miles@beasleyallen.com or Leon.Hampton@beasleyallen.com.

Fair Labor Standards Act (FLSA) – We are working several cases involving Fair Labor Standards Act (FLSA) violations. The FLSA cases are brought on behalf of clients whose job title is misclassified by their employers so that employees are not compensated for overtime worked. Cases may also involve unequal pay, where women are paid less for doing the same job as men. Contact: Lance.Gould@beasleyallen.com, Larry.Golston@beasleyallen.com, or Lauren.Miles@beasleyallen.com.

Toxic Torts Section

The Toxic Torts Section has a number of ongoing projects at present. Currently, the Section has 10 lawyers and 27 support staff. Tracie Harrison is the Section Director. Lawyers and support staff are working on the areas of litigation set out below. The primary contact lawyer for each type case will be listed.

Roundup / glyphosate – Roundup is the most widely used herbicide in the world and the second-most used weed killer for home and garden, government and industry, and commerce. It was introduced commercially by Monsanto Company in 1974 and is used by landscapers, farmers, groundskeepers, and commercial gardeners. The primary ingredient in Roundup is glyphosate, a chemical that kills weeds by blocking proteins essential to plant growth. It has been linked to a type of cancer called non-Hodgkin lymphoma. We are investigating cases involving non-Hodgkin lymphoma related to the commercial application of Roundup/glyphosate. Contact: John.Tomlinson@beasleyallen.com, Danielle.Ingram@beasleyallen.com, Michael.Dunphy@beaselyallen.com or Rhon.Jones@beasleyallen.com.

State and Municipalities Litigation – Our firm is representing the States of Alabama and Georgia in the opioid litigation. We also represent states and certain local governments in environmental or toxic exposure claims. Many times, individuals are either barred from bringing an environmental claim or it is not a practical solution. These types of government cases may involve issues of environmental catastrophe, or some other type of pollution. One of the most notable cases handled by Beasley Allen on behalf of states for environmental issues is the BP Oil Spill litigation. For more information, contact Rhon.Jones@beasleyallen.com.

Opioids – Beasley Allen is representing Alabama and Georgia against both manufacturers and distributors of opioids for increased costs related to the opioid epidemic. These lawsuits allege the crisis was created by the pharmaceutical industry, which instead of investigating suspicious orders of prescription opiates, turned a blind eye in favor of making a profit. They intentionally misled doctors and the public about the risks of these dangerous drugs, and state governments are left struggling to cope with the consequences. Contact: Rhon.Jones@beasleyallen.com, Jeff.Price@beasleyallen.com or Rick.Stratton@beasleyallen.com.

Mesothelioma and asbestos-related diseases – Mesothelioma is a highly aggressive and rare form of cancer usually affecting the lining of the lungs (pleural) or abdominal cavity (peritoneal). Occasionally, it also may affect the lining of the heart (pericardial). The only known cause of mesothelioma is exposure to asbestos. About 2,000 new cases of mesothelioma are diagnosed in the United States each year. For years, asbestos was widely used in many industrial products and in building construction for insulation and fire protection. When asbestos is broken or disturbed it can release microscopic fibers that can be inhaled or ingested, posing a health risk, including the development of asbestos diseases and mesothelioma. Contact: Sharon.Zinns@beasleyallen.com, Ashtyne.Traylor@beasleyallen.com, or Rhon.Jones@beasleyallen.com.

Defective 3M Earplugs – Beasley Allen lawyers are investigating claims related to defective combat earplugs manufactured by Minnesota-based 3M Company. The earplugs were issued to thousands of military personnel serving in combat in Iraq and Afghanistan and used in training exercises in the United States. Numerous soldiers are now complaining of permanent hearing loss related to the defective ear plugs. Other soldiers have complained of tinnitus, commonly referred to as “ringing” in the ears. The dual-sided earplugs allegedly were improperly designed and manufactured so that the earplugs did not fit snugly in the wearer’s ear canal. Contact: Rhon.Jones@beasleyallen.com, William.Sutton@beasleyallen.com or Danielle.Ingram@beasleyallen.com.

Leukemia and Benzene exposure – Benzene is widely used in a number of industries and products, yet many people remain unaware of the toxic danger of this chemical substance. Exposure to products containing benzene, whether through inhalation or skin absorption, can cause life-threatening diseases including Acute Myeloid Leukemia (AML), Myelodysplastic Syndrome (MDS), lymphomas and aplastic Anemia. Some of these diseases do not manifest themselves until several years after exposure to benzene. Due to certain statute of limitations for bringing a claim of this nature it is important to contact an attorney as soon as possible if you believe your condition is a result of benzene exposure. Contact: John.Tomlinson@beasleyallen.com.

PFC Contamination in Water Systems – In May 2016, the U.S. Environmental Protection Agency (EPA) issued new lifetime health exposure guidelines for perfluorooctane sulfonate (PFOS) and perfluorooactanoic acid (PFOA) in the water supply. After the EPA issued the new exposure limits, Beasley Allen filed suit for two water systems impacted in Alabama. The EPA advisory focused on PFOA and PFOS, man-made chemical compounds that are used in the manufacture of non-stick, stain-resistant, and water-proofing coatings on fabric, cookware, firefighting foam, and a variety of other consumer products. Contact: Ryan.Kral@beasleyallen.com, David.Diab@beasleyallen.com or Rhon.Jones@beasleyallen.com.

E-cigarette Explosions – We are investigating cases involving severe injuries caused by exploding e-cigarette devices and exploding e-cigarette batteries. These explosions have been linked to faulty e-cigarette products, defective lithium-ion batteries, and insufficient warnings for users. These cases involve personal injury including serious burn injuries. Please contact our Toxic Torts section for assistance with cases you may have involving these devices. Contact: William.Sutton@beasleyallen.com.

You should have no difficulty in getting through to a lawyer in our firm on a specific case. However, if you do have difficulty reaching any of the lawyers listed above as the primary contact for a specific case, you can contact one of our four Section Directors and she will put you in touch with a lawyer in her Section who is working on the specific case you are asking about.

The Section Directors do a tremendous job for our firm. They 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. By choice, our firm does no defense work. 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 bi-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

We will include in this issue two practice tips for lawyers who receive this Report. Cole Portis, who heads up the firm’s Personal Injury & Products Liability Section, and Leon Hampton, a lawyer in our Consumer Fraud & Commercial Litigation Section, will give us some tips that will help lawyers who do trial work.

Cole Portis

Great trial lawyers dispute whether it is jury selection or opening statements that are the most important parts of a trial. Yet, lawyers should not forget that we can never deliver great opening statements without a jury seated to listen to it. Since a jury will decide the fate of the case either favorably or unfavorably, a lawyer must never select or present evidence to a jury haphazardly.

The ability to select a jury begins by watching and listening to people in everyday life. A lawyer should constantly hone his or her skills to understand people. Once the trial date arrives and the Judge calls citizens together who will be vetted for jury service then a lawyer must be fully prepared to evaluate the potential jurors, establish a rapport with them and put his or her case in the best light. Once the jury is seated then the lawyer presents evidence to these particular jurors who are unique from any other jury.

Lawyers should consider these jurors’ backgrounds, experiences and responses when asking questions to the witnesses and arguing before the Court. I personally think jurors will give the benefit of the doubt to a lawyer that they like. An old lawyer proverb is to “be the guide that the juror wants to follow.” The only way to be that guide is to be honest and trustworthy with them. Far too many lawyers disregard juries after the jurors are sworn in to consider the case. Lawyers should never forget that at the end of the case, they will appeal to these jurors for a favorable verdict.

Leon Hampton

As a young lawyer, it is tempting to become bogged down in nuanced legal theories and forget that opening statements are about people and their story. The purpose of any trial (no matter how complex) is simply to make your client whole for an injustice that the law recognizes. As such, the goal of trials for consumer lawyers is to convince jurors that 1) an injustice has taken place; 2) the Defendant is responsible for the injustice; and 3) they are empowered to redress the wrong. The opening statement is one of the first opportunities attorneys have to communicate the details of the Defendant’s unjust actions and how it affected your client.

While it is tempting to be formulaic in opening statements and merely state the elements of the claims and what you expect the evidence to show, the most impactful opening statements include the client’s story. A simple, plainly stated story will help the jury identify with your client and connect with their plight. Every good story has a beginning, a middle, and ending. Likewise, an opening statement should contain the same. While this may be an over-simplistic perspective, it will aid in telling your client’s story in a straightforward manner and in a way that will make the jury sympathetic toward your client’s position.

Developing a theme for the case will help keep the story in focus. An effective case theme helps shape the way jurors think about the evidence. The case theme should be summed up in a few sentences or less – some would even say a few words. Either way, developing a case theme is vital to telling a cohesive story. Further, it is helpful to think about potential themes throughout the litigation. I’ve found that the best themes develop organically as the evidence unfolds during the discovery phase. Once selected, a persuasive theme will help give structure and focus to your client’s story

Overall, the opening statement is an important part of any trial and should be given special attention. It is a time when you can make the jury like your client and their position. Alternatively, you can become overly bogged downed with convoluted legal points that a jury will lose and result in a misunderstanding of your client’s case. Ideally, the opening statement provides a road map for the evidence and persuasively telling your client’s story.

RECALLS UPDATE

We are again reporting a large number of safety-related recalls. We have included some of the more significant recalls that were issued in December. If more information is needed on any of the recalls, readers are encouraged to contact Shanna Malone, the Executive Editor of the Report. We would also like to know if we have missed any safety recalls that should have been included in this issue.

MOTOR VEHICLE RECALLS:

Ford Motor Company (Ford) is recalling certain 2006-2010 Ford Fusion, Mercury Milan, Lincoln Zephyr and MKZ vehicles. The valves within the ABS Hydraulic Control Units (HCU) may react with brake fluids containing specific corrosion preventative additives. This reaction may cause the valves to not close properly. If the valves do not properly close, additional brake pedal travel may be required to stop the vehicle, increasing the risk of a crash.

Ford Motor Company (Ford) is recalling certain 2017-2019 F-Super Duty F-250, F-350, F-450, and F-550 SuperCrew Cab vehicles with carpet flooring. If a front seat belt pretensioner deploys as the result of a crash, the sparks may ignite materials such as carpeting or insulation within the B-pillar area. A vehicle fire could result if materials ignite inside the vehicle.

Ford Motor Company (Ford) is recalling certain 2020 Explorer and Lincoln Aviator vehicles. Over time, the protective sleeve on the vapor fuel line may chafe through the plastic liquid fuel line and cause a fuel leak. A fuel leak in the presence of an ignition source increases the risk of a fire.

Ford Motor Company (Ford) is recalling certain 2018-2019 F-250, F-350 and F-450 Super Duty trucks. The Daytime Running Lights (DRL) may not dim when the headlight switch is moved into the “On” position. As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 108, “Lamps, Reflective Devices, and Associated Equipment.” DRL that cannot dim may reduce the visibility of other drivers, increasing the risk of a crash.

General Motors LLC (GM) is recalling certain 2019 Chevrolet Silverado 1500, Cadillac CT6, and GMC Sierra 1500 vehicles. Due to an Electronic Brake Control Module (EBCM) software error, the vehicle’s Electronic Stability Control (ESC) and Antilock Brake System (ABS) may become disabled. Furthermore, if this specific error occurs, the vehicle’s diagnostics will not illuminate the instrument cluster ESC and ABS malfunction warning lights. As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 126, “Electronic Stability Control” and 135, “Light Vehicle Brake Systems.” If the driver operates the vehicle unaware that ESC and ABS are not functioning, there is an increased risk of a crash.

General Motors LLC (GM) is recalling certain 2019-2020 Chevrolet Silverado 1500 and GMC Sierra 1500 trucks. The battery positive (B+) cable rings may have been manufactured with excessive glue, potentially causing an intermittent electrical connection between the B+ cable and alternator. An intermittent electrical connection between the B+ battery cable and the alternator could cause the vehicle to stall, increasing the risk of a crash. The intermittent connection could also lead to electrical arcing, which could generate sufficient heat to damage surrounding material, increasing the risk of a fire.

General Motors LLC (GM) is recalling certain 2020 Cadillac Escalade, Escalade ESV, Chevrolet Camaro, Silverado 1500, Suburban, Tahoe, GMC Sierra 1500, Yukon, and Yukon XL vehicles. The fuel pump may be missing a pressure regulator, allowing for over-pressurization of the fuel system. Over-pressurization can crack the fuel pump and cause leaks, increasing the risk of a fire in the presence of an ignition source.

BMW of North America, LLC (BMW) is recalling certain 2019-2020 M5 and 2020 M8 Gran Coupe, M8 Coupe, and M8 Convertible vehicles. The transmission wiring harness can become damaged, resulting in an electrical short circuit. An electrical short circuit can cause the transmission to shift to neutral resulting in a loss of propulsion, increasing the risk of a crash.

BMW of North America, LLC. (BMW) is recalling certain 2015-2019 X6 sDrive35i, X6 xDrive35i, X6 xDrive50i, and X6M vehicles equipped with rear seat lower anchor bars used in securing child restraint seats. The lower anchor bars may become damaged over time when used with an ISOFIX-type, rigid-style connector, child restraint system. Damaged lower anchor bars may increase the child’s risk of injury in the event of a crash.

BMW of North America, LLC (BMW) is recalling certain 2020 Z4 M40i, Z4 sDrive30i, 330i and 330i xDrive vehicles as well as 2020 Toyota Supra vehicles. The headlight control units may fail causing a loss of one or both of the headlights. Headlight failure can reduce the driver’s visibility, increasing the risk of a crash.

BMW of North America, LLC (BMW) is recalling certain 1999-2001 323i, 325i, 328i and 330i and 2000-2001 323Ci, 325Ci, 328Ci, 330Ci, 323iT, and 325iT vehicles equipped with Non-Azide Driver air bag Inflators (NADI) manufactured by Takata. These vehicles may have received a replacement driver air bag as part of a vehicle repair. Due to a manufacturing issue, the replacement NADI inflator may absorb moisture, causing the inflator to rupture or the air bag cushion to underinflate. In the event of a crash necessitating air bag deployment, an inflator rupture may result in metal fragments striking the driver or other occupants. An underinflated air bag may not properly protect the occupant. These scenarios increase the risk of serious injury or death.

BMW of North America, LLC (BMW) is recalling certain 1999-2000 323i and 328i and 2000 323Ci and 328Ci vehicles equipped with Non-Azide Driver air bag Inflators (NADI) manufactured by Takata. These inflators do not contain phase stabilized ammonium nitrate (PSAN) propellant. Due to a manufacturing issue, the NADI inflators may absorb moisture, causing the inflators to rupture or the air bag cushion to underinflate. In the event of a crash necessitating air bag deployment, an inflator rupture may result in metal fragments striking the driver or other occupants. An underinflated air bag may not properly protect the occupant. These scenarios increase the risk of serious injury or death.

BMW of North America, LLC (BMW) is recalling certain 1999 323i and 328i vehicles equipped with Non-Azide Driver air bag Inflators (NADI) manufactured by Takata at one specific inflator production facility. These inflators do not contain phase stabilized ammonium nitrate (PSAN) propellant. Due to a manufacturing issue, the NADI inflators may absorb moisture, causing the inflators to rupture or the air bag cushion to underinflate. In the event of a crash necessitating air bag deployment, an inflator rupture may result in metal fragments striking the driver or other occupants. An underinflated air bag may not properly protect the occupant. These scenarios increase the risk of serious injury or death.

Volkswagen Group of America, Inc. (Volkswagen) is recalling certain 2019 Jetta GLI, Golf Alltrack, and Golf GTI vehicles. The front wheel bearings may have been improperly machined, potentially causing excessive stress on the wheel, wheel bolts, or wheel bearings. The excessive stress can cause steering, traction or other stability issues or breakage relating to the front wheels, and increase the risk of a crash.

Volkswagen Group of America, Inc. (Volkswagen) is recalling certain 2012-2015 Passat, 2011-2014 Golf A6, and 2011-2013 Audi A3 diesel vehicles, thought to have been previously repaired under one of the Takata air bag recalls. The driver’s side air bag inflator may explode due to propellant degradation occurring after long-term exposure to high absolute humidity, high temperatures, and high temperature cycling. An inflator explosion may result in sharp metal fragments striking the driver or other occupants resulting in serious injury or death.

Volkswagen Group of America, Inc. (Volkswagen) is recalling certain 2013-2015 Jetta Hybrid vehicles equipped with a DQ200 7-Speed DSG Automatic Transmission. Hairline cracks can develop within the transmission electronic gearbox (mechatronic unit), causing an internal transmission oil leak and a decrease in oil pressure. A decrease in transmission oil pressure can cause the clutch to fail to engage, resulting in a sudden loss of drive power, increasing the risk of a crash.

Porsche Cars North America, Inc. (Porsche) is recalling certain 2020 911 Carrera S Coupe, Cabrio, Coupe, 4 Coupe, 4S Coupe, 4 Cabrio, 4S Cabrio, and S Cabrio vehicles. Due to a software error, the hazard warning lights may not function may when activated by an operator. As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 108, “Lamps, Reflective Devices, and Associated Equipment.” If the hazard warning lights cannot be activated, there is an increased risk of a crash in a hazard situation.

Porsche Cars North America, Inc. (Porsche) is recalling certain 2014 Cayman and Cayman S, 2014-2016 911 GT3, 2016 911 GT3 RS and 911 R, 2018 911 GT3 and 911 GT2 RS and 2019 911 GT3 RS, 911 GT3, and 911 GT2 RS vehicles. The Child Restraint System (CRS) instructions within the Owner’s Manual may not provide enough specificity for proper installation. As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 225, “Child Restraint Anchorage Systems.” Improper CRS installation increases the risk of an injury to the occupant in the event of a crash.

Toyota Motor Engineering & Manufacturing (Toyota) is recalling certain 2019-2020 C-HR and 2020 Corolla and Corolla Hybrid vehicles equipped with rear seat belt assemblies with a dual-mode locking mechanism. The seat belt webbing sensor locking mechanism may not lock as intended. In the event of a crash involving multiple impacts, the seat belt may not properly restrain the occupant, increasing the risk of injury.

Toyota Motor Engineering & Manufacturing (Toyota) is recalling certain 2019 Prius vehicles. An electrical short circuit in the combination meter could occur, causing the speedometer, the odometer, and the fuel gauge to go blank. As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 101, “Controls and Displays.” A blank main display will not show important information like vehicle speed or fuel level. Driving with an inoperative display can increase the risk of a crash.

Mercedes-Benz USA, LLC. (MBUSA) is recalling certain 2019 E53 AMG 4MATIC, E63 AMG 4MATIC Wagon, and E63S AMG 4MATIC Wagon vehicles. The incorrect driver air bag and software version may have been installed. Incorrect driver air bag and software version can cause the restraint systems to not function as intended during a crash, increasing the risk of injury.

Mercedes-Benz USA, LLC. (MBUSA) is recalling certain 2019 GLC300 and GLC300 4MATIC vehicles. The electrical connection between the power steering electric motor and the control unit may fail, resulting in the loss of electric power steering assist. A loss of power steering assist would require a greater steering effort to control the vehicle, increasing the risk of a crash.

Mercedes-Benz USA, LLC. (MBUSA) is recalling certain 2019 G550 4MATIC and G63 AMG vehicles. The front door wiring harnesses may have been improperly routed causing damage to the individual wires during opening and closing of the front doors. The damage to certain wires can impact safety features such as the side impact restraint system, the automatic unlocking of the door in the event of a crash, or the vehicle location in the event of an emergency call. These scenarios increase the risk of an injury in the event of a crash.

Mercedes-Benz USA, LLC. (MBUSA) is recalling certain 2018-2019 S560, S560 Cabriolet, and S560 4MATIC vehicles equipped with 8-cylinder gasoline engines. The threaded connection between the camshaft idler gear and the crankcase may be improperly tightened, possibly causing the idler gear to detach from the crankcase. A detached idler gear can damage the engine, resulting in a stall and increasing the risk of a crash.

Honda (American Honda Motor Co.) is recalling certain 2019-2020 CR-V vehicles. The rear subframe bolts were improperly manufactured and may loosen, allowing the rear subframe to separate. A separated rear subframe reduces vehicle handling and can suddenly disable the vehicle, increasing the risk of a crash.

Subaru of America, Inc. (Subaru) is recalling certain 2019 Crosstrek, Forester, and Ascent vehicles. The aluminum Positive Crankcase Ventilation (PCV) valve can separate, allowing the separated components to enter the engine, resulting in a loss of power while driving. An unexpected loss of power while driving can increase the risk of a crash.

Subaru of America, Inc. (Subaru) is recalling certain 2019 Ascent vehicles. The transmission hydraulic sensor may inaccurately measure the hydraulic fluid pressure. If the fluid pressure is measured higher than its actual value, the hydraulic pressure will be reduced. If this occurs, the transmission drive chain may not have the proper tension, resulting in a loss of drive power and an increased risk of a crash.

Volvo Car of USA LLC (Volvo) is recalling certain 2011-2017 S60, S60I, V60, S60CC and V60CC vehicles. A component within the door latches may break, making the doors difficult to latch and/or leading the driver or a passenger to believe a door is securely closed when, in fact, it is not. A door that is not securely latched could open while the vehicle is in motion, increasing the risk of injury to a vehicle occupant.

Takata (TK Global LLC) is recalling certain Non-Azide Driver air bag Inflators (NADI). These inflators were used in some brands of 1995-2000 vehicles and do not contain phase stabilized ammonium nitrate (PSAN) propellant. Due to a manufacturing issue, the NADI inflators may absorb moisture, causing the inflators to rupture or the air bag cushion to underinflate. In the event of a crash necessitating air bag deployment, an inflator rupture may result in metal fragments striking the driver or other occupants. An underinflated air bag may not properly protect the occupant. These scenarios increase the risk of serious injury or death.

Isuzu Technical Center of America, Inc. (Isuzu) is recalling certain 2017-2020 NPR-HD, 2019-2020 NPR-XD, NQR, NRR, Chevrolet 4500HD, Chevrolet 5500HD and Chevrolet 5500XD, and 2020 Chevrolet 4500XD vehicles. The lug nuts on the rear outer wheels may not have been properly tightened when installed onto the rear axles. If the lug nuts were not properly tightened, they can loosen, causing the wheel to separate from the vehicle, increasing the risk of a crash.

Daimler Trucks North America LLC (DTNA) is recalling certain 2020 Freightliner Econic SD vehicles. The vehicle certification label contains the incorrect gross axle weight rating (GAWR) information. As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 120, “Wheels and Rims- Other Than Passenger Cars.” The incorrect weight rating information can result in overloading of the axles, increasing the risk of a crash.

Chrysler (FCA US LLC) is recalling certain 2019 Ram 1500 trucks. These vehicles may have been built with a contaminated electric power steering (EPS) gear that may short circuit, potentially resulting in an intermittent loss of power steering assist. An intermittent loss of power steering assist may cause an inconsistent steering effort, especially during lower speed maneuvers, increasing the risk of a crash.

Chrysler (FCA US LLC) is recalling certain Mopar Steering Rack and Pinion Electric Gear Assemblies for Ram 1500 trucks (part number 68419897AB) sold as service replacement parts. The electric power steering (EPS) gears may contain a contaminated circuit card assembly that can short circuit. A short circuit can cause an intermittent loss of power steering assist, requiring an inconsistent steering effort to control the vehicle, increasing the risk of a crash.

Daimler Trucks North America LLC (DTNA) is recalling certain 2019 Freightliner Business Class M2 vehicles equipped with a certain PowerDrive EV electric drivetrain. Due to a software error, the VCU may activate the anti-roll back feature during slow moving or stop and go conditions, which can cause unexpected vehicle movement. Unexpected vehicle movement can increase the risk of a crash.

Mitsubishi Motors North America, Inc. (MMNA) is recalling certain 2012-2017 i-MiEV vehicles. Water may penetrate the brake assist vacuum pump, causing corrosion and a failure of the brake vacuum pump. Without the brake vacuum pump, the driver will experience a sudden loss of braking assist, lengthening the distance needed to stop the vehicle and increasing the risk of a crash.

TIRE RECALLS

Cooper Tire & Rubber Company Europe Ltd. (Cooper Europe) is recalling certain Avon Cobra Chrome motorcycle tires, size 240/50R16, manufactured April 8, 2018, through June 1, 2019 (DOT date codes 1418-2119). The innerliner gauge may be too thin, possibly resulting in a rapid deflation of the tire. Rapid tire deflation can reduce vehicle control and increase the risk of a crash.

Cooper Tire & Rubber Co. (Cooper Tire) is recalling certain Roadmaster RM852 EM tires, size 295/75R22.5, with DOT date codes 4618 through 4818. The innerliner gauge may be too thin, allowing the tire sidewall to fail. A sidewall failure may cause the tire to rapidly deflate, increasing the risk of a crash.

Cooper Tire & Rubber Co. (Cooper Tire) is recalling certain size 235/65R18 Cooper Discoverer SRX, Evolution H/T, Discoverer HTP, Adventurer H/T CUV, Big O Big Foot A/S, Les Schwab Back Country QS3 Touring HT, and Mastercraft Courser HSX Tour tires. The tires may have been improperly manufactured with a ply cord distortion. The distortion may cause parting of the lower sidewall compounds extending the cord material, increasing the risk of tire failure and a crash. For a full list of the Tire Identification Numbers (TIN) visit: https://static.nhtsa.gov/odi/rcl/2019/RCLRPT-19T005-5639.pdf

Sumitomo Rubber Industries, Ltd. (Sumitomo) is recalling certain Falken ZIEX CT50 A/S tires, size P255/50R20 104V, having date code 1619, Dunlop SP Sport 5000 tires, size 215/45R18 89W, having date code 0919, and Goodyear Eagle LS2 tires size P215/50R17 90V, having date code 0619. An incorrect rubber compound may have been used in manufacturing, which may allow sections near the tread surface to become partially detached. A detached tread can decrease vehicle stability thereby increasing the risk of a crash.

Toyo Tire Holdings Of Americas Inc. (Toyo) is recalling certain Proxes A27 tires, size P185/60R16 86H, produced from September 21, 2018 through September 25, 2018 (DOT dates codes 3718 and 3818). Prototype rubber compound was mixed with production compound, which may result in sections of the tire tread detaching. Sections of tread detaching can cause the tire to lose pressure, increasing the risk of crash.

Trans Texas Tire (TTT) is recalling certain Contender 5.70-8 tires sold exclusively through Discount Tire stores. The tire sidewalls are incorrectly labeled, in that each side of the tire may state different PLY and PSI markings. As such, these vehicles fail to comply with the requirements of 49 CFR Part 574, “Tire Identification & Recordkeeping.” The incorrect PLY and PSI markings may result in underflating or overloading the tires, increasing the risk of a crash.

Dynamic Tire Corp (Dynamic) is recalling certain Sailun tires, S698 157/154 L PR20, size 315/80R22.5, produced June 18, 2018-June 25, 2018. The TIN (Tire Identification Number) on the tire sidewall is incomplete and does not include the date of manufacture. As such, these tires fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 119, “New Pneumatic tires – other than passenger cars.” Tires with an incomplete TIN and subject to a safety recall would be impossible to identify as being affected by a safety recall. Using tires affected by a safety recall can increase risk of a crash.

Yokohama Tire Corporation (Yokohama) is recalling certain Yokohama RY023 tires, size 295/75R22.5 (14G), that have DOT date code 2318. The rubber compound may be incorrect, possibly resulting in the tread separating from the casing. As such, these tires fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 119, “New Pneumatic Tires-Other than Passenger Cars.” If the tread separates, the driver may experience a loss of control, increasing risk of a crash.

Pt.Multistrada Arah Sarana, TBK (Multistrada) is recalling certain Achilles Desert Hawk A/P LT tires, size LT215/85 R16 115/112R 10PR, with DOT date code 1915 through date code 3618. The lower sidewall of the tires may separate. As such, these vehicles fail to comply with the requirements of Federal Motor Vehicle Safety Standard (FMVSS) number 139, “New Pneumatic Radial Tires for Light Vehicles.” A sidewall separation can cause loss of air pressure, increasing the risk of a crash.

Continental Tire the Americas, LLC (Continental Tire) is recalling certain Conti Hybrid HS3 tires, size 11R22.5 LI 146/143, Load Range H with DOT codes A33TKWUY 0818 through A33TKWUY 1318. These tires may have cords visible through the innerliner. Tires that have cords visible through the innerliner can have sudden air loss, causing a loss of vehicle control, increasing the risk of a crash.

OTHER CONSUMER RECALLS

BCI Burke Recalls Merge Playground Climbers

BCI Burke recalls Merge Playground Climbers due to a welded rung opening on the sides of the climber poses an entrapment hazard to children. This recall involves the Burke Merge metal climbers used on playground equipment for children to climb up to access the play structure. “Burke” is printed on identification labels that are placed on the exterior of the play structure.

Consumers should immediately stop using the Merge Climbers and block them off from children’s use. BCI Burke is contacting all known owners directly by certified mail, and Burke representatives will inspect and replace climbers that are not compliant with the current voluntary standard for this product. Consumers contact BCI Burke at 800-356-2070 between 8 a.m. and 4 p.m. CT Monday through Friday or online at www.bciburke.com and click on the Recall Information tab for more information.

The playground equipment was sold through Burke sales representatives or Burke direct from November 2015 through August 2019 for about $1,460.

As you can see, there have been a large number of recalls since the last issue. We included many of them in this issue. Those we felt to be of the highest importance and urgency are included. If you need more information on any of the recalls listed above, visit our firm’s web site at BeasleyAllen.com. We would also like to know if we have missed any significant recall that involves a safety issue. If so, please let us know. As indicated at the outset, you can contact Shanna Malone at Shanna.Malone@beasleyallen.com for more recall information or to supply us with information on recalls.

FIRM ACTIVITIES

Employee Spotlights

Niall Davies

Niall Davies, who serves as the Mass Torts Section Project Manager, has been with the firm for 12 years. He works with a team of Medical Analysts who evaluate case inventories for internal and settlement valuation to maximize clients’ compensation. Niall performs settlement projects such as writing comprehensive guides for our lawyers and staff, and creates and prepares systems to manage and track Beasley Allen cases. He also provides analysis, metrics and projections of the Section’s case inventories.

Niall is married to Penny, who also works for the Firm and is the Mass Torts Operations Manager. They have been married for more than 12 years and their son, Benjamin, attends Auburn University and is studying Engineering. Niall enjoys spending time with his family, including his pets; Bella, Ninja and Bandit. He also enjoys reading, hiking, and is an avid runner.

Niall says his favorite thing about working at Beasley Allen is getting to work closely with a team of like-minded, hard-working people. Beasley Allen’s successes on behalf of our clients wouldn’t be possible without a full team effort from our staff and lawyers. Niall says that his goal is to help Beasley Allen “continue to be a leading Plaintiffs law firm in verdicts and settlements reached for our clients.”

Niall is a hard-working employee who is dedicated to the firm’s goal of helping those who need our help. We are fortunate to have Niall with us.

Paul Evans

Paul Evans is a lawyer in the firm’s Consumer Fraud & Commercial Litigation Section where he handles class actions, antitrust issues, whistleblower claims and Medicaid fraud litigation. Currently, Paul’s practice is focused on class action litigation filed on behalf of life insurance policyholders who have experienced unfounded premium increases. These lawsuits allege that the unfounded premium increases are implemented ultimately to benefit shareholders and rid the insurance companies of near-term liabilities they have accrued due to wrongful use of captive reinsurance companies. It is these types of cases that encouraged Paul to become a lawyer. Paul said:

Attorneys help people through hardships they face when they are wronged, and I have always wanted to be a part of a profession that seeks to serve others. Also, through their cases, attorneys can help to remedy and prevent corrupt practices existent among some businesses that physically or financially harm ordinary people.

Paul graduated summa cum laude with a B.S. in political science from Troy University in 2014. While at Troy, Paul was elected by the student body as Vice President of the Student Government Association in addition to serving as Vice President of the Sigma Chi Fraternity. He then earned his J.D. from Faulkner University’s Thomas Goode Jones School of Law three years later, graduating magna cum laude.

While in law school, Paul was an editorial board member of the Faulkner Law Review, President of the Student Bar Association, and a Walter J. Knabe Scholar. He also earned the Dean’s Award, five Best Paper awards, and a place on the Dean’s Honor Roll each semester. In addition, he was Regional Champion of the ABA National Appellate Advocacy Competition, was Best Brief Finalist and Semi-Finalist at Faulkner’s First-Year Moot Court Competition and was Semi-Finalist of Faulkner’s Greg Allen Mock Trial Competition. Paul also assisted with the Pro Se Litigation Assistance Program.

Paul says his favorite part of practicing law is that it is never monotonous, and he appreciates how different days require various tasks, whether it be taking a deposition, writing a legal brief, or discussing a potential case with another attorney. He says he also enjoys “that the practice of law presents me with the opportunity to constantly learn about the law and the facts of my cases as well as with the ability to help others.”

Before joining Beasley Allen full time, Paul interned with Justice Tommy Bryan of the Alabama Supreme Court and clerked with our firm. His experience as a law clerk and now an Associate attorney has allowed Paul to see the firm from different points of view. Paul says:

Beasley Allen is unique because of the firm’s culture that encourages attorneys and staff to prioritize their lives in the following order: God, family, and work. In addition to its priorities, the firm endeavors to maintain integrity in all of its interactions, such as with clients, judges, and other attorneys. Additionally, the firm is unique because attorneys and staff work together as a team towards the common goal of helping those who need it most.

Paul is a member of the Alabama State Bar, the Alabama State Bar Young Lawyers Section, the Montgomery County Bar Association, Emerging Leaders for Alabama Association for Justice, and Taxpayers Against Fraud. Paul also serves as a member of the Board of Directors for Catholic Social Services of Montgomery and the Middle District of Alabama’s Pro Se Litigant Assistance Program.

Paul is married to the former Jillian Jordan of Brewton, Alabama. Jillian is an Assistant Attorney General in the Criminal Trials Division of Alabama Attorney General Steve Marshall’s Office. They attend First Baptist Church.

Paul is a very good lawyer whose talents and drive will cause his practice to get even better in time. He is passionate about the cases he is involved in and makes the clients’ interest the top priority at all time. We are blessed to have Paul with us.

Laurie Little

Laurie has been with the Firm since January 2010 and is a Staff Assistant in the Mass Torts Section. She is currently working on the individual opioid litigation cases under Roger Smith and Liz Eiland, lawyers in our Mass Torts Section.

Laurie lives in Georgiana where she owns land that has been in her family since the mid-1800s. She has three daughters and one son. Her son John is in college at Troy University and is a member of the Army Reserves. Her oldest daughter, Rachel, is completing her Master’s degree. Her youngest daughter Lora lives in Woodlands, Texas. Kimberly, her middle daughter, lives in Opelika. Between all of her children, Laurie has five beautiful grandchildren. Laurie also has two dogs: Roscoe, a Great Dane, and Cooper, a Chihuahua.

Laurie enjoys spending time with and cooking for her children and grandchildren. She also enjoys watching old movies and football with Z. W. Little, her 81-year-old dad. When asked what her favorite thing is about working at Beasley Allen, Laurie says, “people, co-workers, attorneys, supervisors and most importantly, our clients. Being a small part of what the firm does, helping people who need it, makes this a very rewarding job!”

Laurie does good work and is a hard worker. She says she enjoys her work. We are fortunate to have her with us.

Ricky Moore

Ricky Moore, an Investigator in our Personal Injury & Products Liability Section, has been with Beasley Allen since 1995. In that capacity, Ricky investigates vehicle accidents, interviews first responders and witnesses and also documents and photographs accident scenes. Occasionally his work includes investigations involving air craft and water craft, as well as industrial accidents.

Ricky and his wife Kathy have been married 38 years. Kathy recently retired after being a teacher for 35 years. Ricky and Kathy have three children and two grandchildren. Their daughter, Melissa, and her husband Nick live in Alpharetta, Georgia. Ricky’s other daughter, Molly, and her husband also live in Alpharetta. Ricky’s son Will and his wife live in Pike Road where they both teach school.

In his spare time, Ricky enjoys hunting and fishing. But most of his spare time is spent visiting with children, grandchildren and other family members. When asked what his favorite thing is about working at Beasley Allen, Ricky says:

Traveling to different areas of the state as well as investigating product failure cases and seeing how they can be improved or corrected. Also working with fellow investigators that I have been friends with for many years.

Ricky has an extremely important position at Beasley Allen and he does excellent work. Having well-trained, experienced investigators in house is very important to the mission of our firm. We are most fortunate to have Ricky, who does exceptional work, with us.

SPECIAL RECOGNITIONS

Beasley Allen Selects Soo Seok Yang For Chad Stewart Award

Beasley Allen has recognized Soo Seok Yang as the winner of the 2019 Chad Stewart Award. This honor was created in memory of Beasley Allen lawyer Chad Stewart, who passed away unexpectedly in 2014 at the very young age of 41. The award was created to recognize the lawyer who best exemplifies Chad’s spirit of service to God, his family and the practice of law in the task of “helping those who need it most.” Soo Seok is a lawyer in the firm’s Mass Torts Section.

“Soo Seok embodies the spirit of the Chad Stewart award through his own dedication to clients and his involvement and leadership in the community,” said Tom Methvin, Beasley Allen’s Managing Attorney. “We are thankful for Soo Seok’s compassion, which is equally matched with his leadership and knowledge.”

A lawyer in the firm’s Mass Torts Section, Soo Seok has handled cases involving defective drug and medical device multidistrict litigations (MDLs) for Fosamax, metal-on-metal hip implant and transvaginal mesh cases. For the past few years, he has been focusing on a national MDL involving injuries related to a blood thinner. Soo Seok has served as a member of the trial team for multiple bellwether trials in both state and federal court in Louisiana, Mississippi and Philadelphia. He has been instrumental in helping the head of Beasley Allen’s Mass Torts Section and Co-Lead Plaintiff Counsel for the Xarelto MDL, Andy Birchfield, oversee the massive and complex settlement process on behalf of hundreds of the plaintiff firms so that thousands of consumers who have valid substantial claims can receive a fair and just resolution. Soo Seok had this to day about the award:

I feel utterly inadequate, knowing the life that Chad lived and the stellar example that he set, and the giant footsteps of the Beasley Allen attorneys who have received this award and their unmatchable love and excellence for the Lord, family and work. So, I interpret this award as a chastisement rather than a compliment on anything that I’ve done – a loving encouragement for me to do better in serving the Lord, family and work.

Soo Seok was born in Seoul, South Korea, and first came to the U.S. as part of the U.S. Congress-Korea National Assembly Exchange Program with a Congressional Internship in 2006. After graduating summa cum laude from high school, he attended Handong Global University, a pioneering Christian university, and later the Korean Air Force Officer Training School, finishing sixth among approximately 400 officer candidates. Soo Seok served in the Korean Combat Operations Intelligence Center (K-COIC) at the Osan Air Base and worked with the U.S. 7th Air Force to analyze North Korea’s military activities.

In 2007, Soo Seok graduated cum laude from Handong International Law School (HILS), a Christian law school that teaches U.S. common law in English, also located in South Korea. After graduation, Soo Seok came to Montgomery, Alabama. He clerked for Justice Tom Parker of the Alabama Supreme Court. He received his LL.M. degree in intellectual property law at the George Washington University Law School with an emphasis on trademark and copyright.

Pursuing his passion for human rights, Soo Seok was involved in a project commissioned by the U.S. Commission on International Religious Freedom (USCIRF). He served as the interview team leader. Soo Seok and his team successfully located and interviewed a number of North Korean defectors and contributed to a report regarding the status of religious freedom and political prison camps in North Korea, which was later published as A Prison Without Bars by the USCIRF in 2008.

Soo Seok was selected to the Alabama State Bar’s Leadership Forum (Class 13). Soo Seok and his wife, Doh Ah Kim, were selected by the Consul General and the Office of Consul General of South Korea in Atlanta, Georgia, to be part of the Next Generation Korean-American Leaders, which includes professionals in communities across the southeastern U.S. Doh Ah Kim is also a lawyer and Senior Community Liaison Specialist of Governor’s Office of Minority Affairs for the State of Alabama. Soo Seok also serves as the executive director at the Korean American Association of Greater Montgomery. He has been given three commendation awards by the Federation of Korean Associations of Southeast USA for serving the Korean community of Montgomery. Also, Soo Seok serves as a founding member of the Advisory Board for the James W. Wilson Jr. YMCA in Montgomery, Alabama.

Soo Seok and Doh Ah were among the first Korean Alabama lawyers. They live in Montgomery with their five children. They are members of the First Baptist Church in Montgomery, where Soo Seok serves as a deacon and a praise and worship leader for the international department.

Marking Milestones: The Folks Who Are Our Foundation

In the Capitol Comments Section, I reflected on the celebration of Beasley Allen’s 40th anniversary, which took place throughout 2019. As we begin our journey into the next 40 and beyond, I would be remiss if I didn’t note the key to our success – our people!

Back in 1979 when I started this firm as a solo practitioner hoping to help folks who needed justice to the best of my abilities, I could not in my wildest dreams have imagined where we are today. As I welcomed lawyers to practice with me, and we began to grow, I never would have thought we would one day have a team of more than 80 lawyers, over 200 staff, and two locations – here in Montgomery where it all began, and in Atlanta.

Whether someone has been with the firm from almost the very beginning – like Greg Allen – or if they just started on this path with us, I want them to know we appreciate what they do. This is a great team! I will now recognize all the employees who celebrated 5, 10, 15, 20 and 25-year milestones with Beasley Allen in 2019.

Administration 60
Julie Grimes 25
Angie Frazier 15
Kristen Piatek 10
Ashley Locklar 10
Consumer Fraud & Commercial Litigation Section 60
Michelle Fulmer 25
Ashley Pugh 20
Sue Scarborough 10
Whitney Gagnon 5
Mass Torts Section 80
Sandy Eiland 15
Maureen Manno 15
Jackie Johnson 15
Ellen Royal 15
Tammie Tyus 5
Amber Peden 5
Angela Byrum 5
Crystal Jacks 5
Personal Injury Section 50
Charles Duffee 20
Theresa Perkins 20
Melinda Henderson 10
Toxic Torts Section 40
Tracie Harrison 20
Kristi Smith 20

I appreciate all that our employees do! As we begin a new decade, we look forward to “helping those who need it most” together. We do things at Beasley Allen the right way and for the right reason!

Senate Confirms Austin Huffaker For Montgomery Federal Judgeship

Austin Huffaker, a Montgomery lawyer and former head of the Alabama Securities Commission, was confirmed by the Senate in a near-unanimous vote for a federal judgeship in the Montgomery-based Middle District of Alabama. Austin confirmed for the seat by an 89-4 vote in the Senate. It is significant that Alabama Sens. Richard Shelby, a Republican, and Democrat Doug Jones both voted to confirm Huffaker. Sen. Shelby said in a statement:

Austin is well respected in the community, and I know that he will uphold the rule of law with the utmost integrity and honor. I was proud to support his nomination and believe that he is the ideal candidate to serve in this prestigious position.

U.S. Senator Doug Jones had this to say about Austin and his confirmation:

Throughout his confirmation process, I have been proud to support Montgomery’s Austin Huffaker for the U.S. District Court for the Middle District of Alabama. In July, I joined my colleague Sen. Shelby to recommend Mr. Huffaker’s favorable consideration in the Senate Judiciary Committee and [Wednesday] I cast my vote in favor of his confirmation by the full Senate. Mr. Huffaker has an excellent reputation within the legal profession for his fairness, temperament and thoughtfulness. I believe he will serve with the utmost integrity on the bench and will represent Alabama with distinction.

Austin is a shareholder at the Montgomery firm Rushton, Stakely, Johnston & Garrett, P.A, where he focuses on civil litigation defense, including complex commercial, product defect, lender liability, and professional malpractice matters. Tommy Keene, that firm’s president, said:

Our firm is overwhelmed with joy as we announce the confirmation of Austin Huffaker to the prestigious Federal Court Judgeship in the Middle District of Alabama. While we will realize a great loss to our firm in his leadership and legal abilities, we recognize that he now answers a higher calling. He will serve the citizens of the Middle District in exemplary fashion, and we know that he will deliver justice in the most fair, intelligent, and even-handed manner possible. Austin brings twenty years of experience in the practice of law to his new position. We extend our warmest congratulations and wish him every success in his new duties.

Austin also served as commissioner of the Alabama Securities Commission. He earned his bachelor’s degree from Vanderbilt University and his law degree from the University of Alabama, where he was a Hugo Black Scholar and member of the Alabama Law Review. We at Beasley Allen are confident that Austin will be an outstanding judge and will serve with distinction. We wish him the very best.

FAVORITE BIBLE VERSES

Melissa Prickett, a lawyer in our Mass Torts Section, supplied three verses.

…but those who hope in the Lord will renew their strength. They will soar on wings like eagles; they will run and not grow weary, they will walk and not be faint. Isaiah 40:31

Trust in the Lord with all your heart and lean not on your own understanding; in all your ways submit to him, and he will make your paths straight. Proverbs 3:5-6

I have told you these things, so that in me you may have peace. In this world you will have trouble. But take heart! I have overcome the world. John 16:33

Heidi Bowers, a Legal Assistant in our firm’s Consumer Fraud & Commercial Litigation Section, sent in Mark 11:24 for this issue. Hedi says: “God wants us to live the kind of life where we are believing in him and thanking him in advance. There is such peace in knowing that his promises are far greater than any of our promises.”

Therefore, I tell you, whatever you ask for in prayer, believe that you have received it, and it will be yours. Mark 11:24

Temp Temple, a staff assistant in our Mass Torts Section, furnished Luke 1:78-78 for this issue. He says:

As is with the natural balance of all things on Earth, there is no life without death. There is no joy without pain. And there is no light without darkness. This common thread has connected us to humanity through the ages since the very dawn of time. But even in our darkest hour, the light of the Lord can always shine through – just as the sun rises to drive out the night. It merely depends on our own faith and understanding of His will for each of us that will grant us the strength to move past the inevitability of darkness and toward a life filled with the glow of everlasting light.

Because of the tender mercy of our God, by which the rising Son will come to us from heaven to shine on those living in darkness and in the shadow of death, to guide our feet into the path of peace. Luke 1:78-79 (NIV)

Soo Seok Yang, a lawyer in our firm’s Mass Torts Section, furnished Nehemiah 8:10. Soo Seok says:

Personally, this year God has blessed my family with our fifth child and we named him Nehemiah. God knew how challenging it would be, especially for my wife Doh Ah, to raise five children, and perhaps that’s why He gave us a very sweet and easy-going baby. Nehemiah seldom gets fussy, and rarely cries unless he’s hungry. He never fails to smile back at anyone who smiles at him. He reminds me of joy. Every time I hold him, I feel joy from deep within, which I cannot describe fully in words. This verse contains the secret to a happy and meaningful life and is an important conclusion to the Book of Nehemiah.

After Nehemiah and the people of Israel had finished rebuilding the broken wall of Jerusalem over many oppositions, they all came together as one, where God’s Word was read aloud by Ezra. They praised God and at the same time wept, because for a long time they did not have a chance to listen to God’s Word. The Bible says that all the people followed Nehemiah’s advice – they stopped grieving and instead celebrated with great joy; and it was because they now understood God’s Word that had been made known to them.

This joy is what I need every day. It is to know that there is a God who created us, to understand that He is a God who loves us and desires to have a personal relationship with us. This joy is what makes us keep going. Someone told me, what’s the point of doing great things if you lose joy? Yes, that is true. Let’s not lose joy as that’s what makes our life meaningful every day.

Nehemiah said, “Go and enjoy choice food and sweet drinks, and send some to those who have nothing prepared. This day is holy to our Lord. Do not grieve, for the joy of the Lord is your strength.” Nehemiah 8:10

CLOSING OBSERVATIONS

Several weeks ago, I was getting ready to talk to a national group representing all of the football bowl games in America. I was to speak at Troy University in Montgomery on an assigned topic, “ethical leadership.” As I was getting ready to leave the office that morning I also got my flu shot. As I was filling out a form, I was putting in my date of birth. The nurse saw the date and exclaimed, “Is that correct?” When I answered yes and her response was, “You could retire – why in the world are you still working?” that really got my attention.

This made me reflect on why, at my age, I am still working as a trial lawyer. I immediately thought first of the Spivey case where the work of our firm and the dedication of a grieving widow resulted in ROPs protection becoming the standard in the tractor industry. I also thought of Toyota and the sudden acceleration cases. GM and the Melton case, which involves the defective ignition switches that had been hidden from NHTSA for a decade, came to mind as did hundreds of others.

So, I discarded the notes I had for my talk. Instead, I told the group why I am proud and humbled to be a trial lawyer. I can say without hesitation that Beasley Allen has made a difference in how Corporate America operates. That is exactly what continues to motivate me and keep me working.

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

My wife Sara and I spent Sunday morning on Dec. 22 at The New Walk of Faith Church in West Montgomery. My friend Rev. Ken Austin asked me last year if we would read The Christmas Story as found in the Second Chapter of Luke to the children during the morning worship service. We accepted and received a tremendous blessing as we read to the children. We read to the children again this year and the number of children has grown since last year. Reading to the children was a highlight of my year. Seeing the children and realizing that they were hearing about the birth of Jesus, an event that literally changed the world, was gratifying beyond description. I can’t think of anything more important than telling children about Jesus, the Christ.