An Update On The Opioid Litigation
The State of Alabama’s case against Endo Health Solutions and McKesson Corporation is currently on track for a trial in May of 2021. The State of Georgia’s case against Opioid manufacturers Endo, Actavis, Teva, and Mallinckrodt and opioid distributors McKesson, Cardinal Health, AmerisourceBergen, and Smith Drug, has been delayed until May 2022. Beasley Allen represents both the State of Alabama and the State of Georgia in these cases. Upcoming Opioid Epidemic trials include State Court trials in New York, Tennessee, and Ohio, and a multidistrict litigation (MDL) bellwether trial in Cabell County, West Virginia.
Opioid MDL negotiating Class Struck Down By 6th Circuit
The Court of Appeals for the Sixth Circuit on Sept. 24 reversed Judge Dan Polster’s decision to certify a novel negotiating class aimed at resolving the opioid multidistrict litigation (MDL), finding the class isn’t authorized by the federal rules for class actions.
The panel said in a 2-1 majority decision that when a court certifies a class action under Rule 23 of the Federal Rules of Civil Procedure, it must find that questions of law or fact among the class members predominate over individual questions. However, the rules don’t mention class certification for the negotiation of a settlement, the panel said.
The negotiation class is a novel mechanism designed to help more than 30,000 local governments pursue deals with pharmaceutical companies accused of fueling the opioid crisis. As envisioned, the negotiation class would have tried to craft settlements with individual drug companies, and any settlement would be put to a vote and require approval by 75% of voting governments.
Judge Polster signed off on the negotiation class in September of last year, finding the procedure was legitimate and that the process is likely to aid a global settlement of the cases. The panel noted that Judge Polster certified the class based on the federal Racketeer Influenced and Corrupt Organizations (RICO) Act and Controlled Substances Act claims brought by many of the municipalities.
The cases are In re: National Prescription Opiate Litigation (case numbers 19-4097 and 19-4099) in the U.S. Court of Appeals for the Sixth Circuit, and In re: National Prescription Opiate Litigation (case number 1:17-md-02804) in the U.S. District Court for the Northern District of Ohio.
New York Files Charges Against J&J Over Opioid Marketing
The New York Department of Financial Services has filed insurance fraud charges against Johnson & Johnson (J&J) over opioid marketing that downplayed the risks of addiction. J&J is the fourth manufacturer charged by the state over marketing of opioids. New York Gov. Andrew Cuomo announced the filing on Sept. 17.
The department claims J&J has had a long and leading role in creating a dangerous market for opioids for the treatment of chronic pain. The company’s misleading marketing boosted the medical community’s willingness to prescribe the drugs, according to Gov. Cuomo, who said in a statement:
The opioid crisis has taken too many lives and New York State will continue to take action against those who helped fuel this public health catastrophe and bring a measure of justice to families who have lost loved ones. Misrepresentation of opioids to consumers for profit is inexcusable and we will use every tool necessary to help ensure those responsible are held fully accountable.
The financial services department said in its statement of charges that between 2007 and 2014, private insurance claims related to opioid dependence diagnoses rose by more than 3,000% nationally and by almost 500% in the state of New York.
In the past decade, the department said the rise in claims paid by health insurers as a result of the opioid crisis caused New Yorkers who have commercial health insurance to overpay about $1.8 billion in premiums.
According to the statement of charges, J&J subsidiary Janssen cited various studies in marketing its Duragesic patch as having less potential for addiction, even as its label cautioned that high fentanyl content may make the patches “a particular target for abuse and diversion.”
One of the studies came from the Drug Abuse Warning Network (DAWN), which collected data from emergency rooms about overdoses. However, that data didn’t show whether a drug is more or less addictive than others, but instead showed whether it is abused more or less often in a certain region. That’s according to a 2004 letter sent by the U.S. Food and Drug Administration (FDA) ordering the company to stop making those claims. The Department said:
In addition to DAWN, Janssen also cited numerous studies that claimed to find low addiction potential and high efficacy for Duragesic. Many of these studies, however, have been found to be so flawed that their findings are useless, and internal emails show knowledge on the part of Janssen executives that such studies were not effective measures of the drug’s safety or efficacy.
Janssen also developed a poppy in the 1990s that facilitated the supply of widely used opioids including oxycodone, according to the department. There will be a hearing Jan. 25, 2021, on the matter, the department said. A J&J spokesman told Law360 that its conduct was “appropriate and responsible.”
The case is In the Matter of: Johnson & Johnson (case number 2020-0034) in the New York State Department of Financial Services.
Teva’s $23 Billion Opioid Litigation Settlement Faces New Wave Of Attacks
Teva’s offer to settle thousands of opioid-crisis lawsuits by donating enough opioid-dependence drugs to satisfy most U.S. demand for 10 years is now receiving sharp new criticism from a bipartisan assortment of public officials. Those officials are warning this settlement could crush a vital and highly competitive corner of the pharmaceutical industry.
It was claimed earlier in opposition to the proposal that Teva Pharmaceutical Industries Ltd. had inflated the value of the proposal. Now attacks on the proposed $23 billion drug donation are different. Teva floated the settlement last year to resolve allegations of illicit painkiller marketing. Teva says it can’t afford a massive cash settlement of coast-to-coast opioid litigation.
Opponents are voicing several concerns, including unease about signing a long-term agreement with a company that is under federal indictment on price-fixing charges and saddled with more than $20 billion in debt. It’s those latter concerns that is prompting the new opposition.
But it appears the primary concern is that Teva’s colossal contribution of buprenorphine-naloxone tablets – the most popular drugs for treating narcotic painkiller addiction – would make it virtually impossible for other pharmaceutical companies to sell the drugs and would vaporize incentives for them to research and develop new addiction-treatment medications that could be safer and more effective. Ohio Attorney General Dave Yost, a Republican whose state has one of the highest rates of opioid overdoses, told Law360:
That level of a commitment would in essence eliminate the competitive market for any of these products, and for future development of any future products, because who’s going to pay a dime for anything when you get it for free?
A similar assertion appeared in an Aug. 17 letter to the U.S. Food and Drug Administration (FDA) from Reps. David B. McKinley, R-W.Va., and Marcy Kaptur, D-Ohio. The lawmakers wrote that a flood of free pills could disrupt patient treatment and upend a robust segment of the pharmaceutical industry, adding that any disturbances could be especially harmful amid spiking opioid abuse during the coronavirus pandemic. Reps. McKinley and Kaptur asked the agency: “Does FDA need additional authority to ensure that this untested settlement provision does not disrupt patient care or result in shortages?”
The settlement is meant to end roughly 3,000 lawsuits filed by cities and counties in multidistrict litigation (MDL) and by state attorneys general. Most of the suits target numerous companies in the pharmaceutical industry and seek money for expenses related to health care and law enforcement. Teva’s settlement would resolve cases involving generic oxycodone and allegedly illicit marketing and distribution of the fentanyl painkillers Actiq and Fentora.
The attorneys general of North Carolina, Pennsylvania, Tennessee and Texas brokered Teva’s settlement agreement which also includes $250 million in cash over 10 years – as part of a larger effort to reach global settlements with several companies, including drugmaker Johnson & Johnson and drug distributors McKesson Corp., Cardinal Health Inc. and AmerisourceBergen Corp. None of those agreements have been finalized. All have faced opposition from a sizable contingent of attorneys general and MDL Plaintiffs lawyers who have called them inadequate.
Apprehension about Teva’s settlement stretches beyond its potential impact on the market for addiction-treatment drugs. Settling for pills instead of dollars doesn’t reimburse governments for past expenses tied to the opioid crisis. It’s also said that this approach only solves one issue going forward with rampant addiction.
As of 2017, roughly 2 million nonelderly adults had an opioid use disorder, and nearly 40% of them were covered by state Medicaid programs, according to a Kaiser Family Foundation report last year. The costs of addiction treatment frequently stem not just from medications but also mental health, educational and vocational services. Opioid addiction is also linked to costly hospitalizations and higher rates of HIV and hepatitis C.
The MDL is In re: National Prescription Opiate Litigation, (case number 1:17-md-02804), in the U.S. District Court for the Northern District of Ohio.
Purdue CEO Bonus Called An ‘Affront’ To Opioid Victims
Several U.S. Senators have urged a New York bankruptcy judge to reject a compensation proposal that could see Purdue Pharma CEO Craig Landau receive a bonus of up to $3.5 million. The bonus was called an “affront” to victims of the opioid crisis. A hearing on the bonus plan was set for Sept. 30, but since this issue was sent to the printer on Sept. 28 we had no information on the outcome.
U.S. Bankruptcy Judge Robert Drain was told by the Senators they were “extremely concerned” about the proposed payout to Landau, which they said comes as the Purdue CEO has recently been implicated in “significant criminal activity” at the drugmaker. Purdue entered bankruptcy last year.
“This proposed incentive structure represents an affront to the thousands of families that have been harmed by the opioid crisis, and an entirely inappropriate exercise given the impact of Purdue’s continued recklessness,” said the letter signed by Sens. Tammy Baldwin of Wisconsin, Joe Manchin of West Virginia, Maggie Hassan of North Carolina, Tina Smith of Minnesota and Richard Blumenthal of Connecticut.
The possible $3.5 million payout to Landau is part of a larger $9.87 million proposal for executive bonuses that Purdue submitted to the court Sept. 9.
The states and municipalities are represented by their respective attorney general offices. The committee of unsecured creditors is represented by Edward Drummond of Bedell Cristin Jersey Partnership. The case is In re: Purdue Pharma LP (case number 7:19-bk-23649) and the adversarial case is Purdue Pharma LP et al. v. Commonwealth of Massachusetts et al. (case number 7:19-ap-08289) in the U.S. Bankruptcy Court for the Southern District of New York.
The Beasley Allen Opioid Litigation Team
Beasley Allen’s Opioid Litigation Team includes Rhon Jones, Parker Miller, Ken Wilson, David Diab, Rick Stratton, Will Sutton, Jeff Price and Tucker Osborne. This team of lawyers represents the State of Alabama, the State of Georgia, and numerous local governments and other entities, as well as individual claims on behalf of victims. If you need more information on the opioid litigation contact one of these lawyers at 800-898-2034 or by email at Rhon.Jones@beasleyallen.com, Parker.Miller@beasleyallen.com, Ken.Wilson@beasleyallen.com, David.Diab@beasleyallen.com, Rick.Stratton@beasleyallen.com, William.Sutton@beasleyallen.com, Jeff.Price@beasleyallen.com or Tucker.Osborne@beasleyallen.com.
Update On Georgia Courts And The Judicial Emergency Order. “When Will We Resume Jury Trials?”
Courts in all states are having to deal with the COVID pandemic and it has caused considerable problems. On March 14, 2020, due to the pandemic, the Supreme Court of Georgia issued an order declaring a Statewide Judicial Emergency. In that original order, civil jury trials, statutes, deadlines, discovery and filing requirements were suspended. The order states that courts “should remain open to address essential functions, and in particular courts should give priority to matters defined as those necessary to protect health, safety, and liberty of individuals.”
The order lists the matters courts should prioritize, which include domestic abuse restraining orders, juvenile court delinquency detention hearings and emergency removal matters, mental health commitment hearings, and cases “where an immediate liberty or safety concern is present requiring the attention of the court as soon as the court is available.” On April 6, the original order was extended until May 13, 2020.
On May 11, the Supreme Court of Georgia, after consulting with the Judicial Council of Georgia, and “recognizing that most in-court proceedings compel the attendance of various individuals rather than allowing them to decide how best to protect their own health”, extended the original order with some clarifications and modifications as well as directions regarding efforts to resume. This extension applied through June 12, 2020.
Civil Jury trials remained suspended but courts were urged to develop plans for building back non-critical operations that can be conducted remotely by videoconferencing or by maintaining adherence to public health guidelines. The order encouraged an increase in the use of technology to conduct remote judicial proceedings where legally permitted as a preferred alternative to in-person proceedings. The stated goal was to “help limit the backlog once the emergency is terminated.” Chief Justice Harold D. Melton announced the creation of a special task force to develop plans for the safe resumption of more extensive in-court proceedings. He stated:
The task force will include judges representing every class of court, who will obtain input from prosecutors and public defenders, civil trial attorneys, court clerks, and sheriffs.
On June 12, the Supreme Court of Georgia again extended the original order until July 12, 2020. This extension outlined a plan to allow more pending and newly filed cases to move forward by re-imposing as of July 14, 2020, all legal deadlines on litigants in civil and criminal cases, except for deadlines related to jury trial and grand jury proceedings. Although deadlines imposed on courts remained suspended, the order urges courts to “work diligently to clear the backlog and to comply with usual deadlines and timetables to the extent safe and practicable.” The order also authorized judges to reimpose deadlines before July 14 on a case-by-case basis.
On July 12, the Supreme Court of Georgia extended the original order until August 11, 2020. This extension authorized courts to move forward with all judicial proceedings except criminal and civil jury trials and most grand jury proceedings, as long as the courts can legally, safely and practicably do so. The order continued the prohibition on jury trial proceedings and most grand jury proceedings and stated “it is unlikely that any jury proceedings will begin until September or later.”
The July 12 extension order included stronger and more mandatory language than in past orders to make clear that as Georgia’s courts move to conduct more proceedings, judges have an increased obligation to look after the safety of all involved. The order stated:
Courts have discretion to conduct in-person judicial proceedings, but only in compliance with public health guidance and with the requirements of the United States and Georgia constitutions and applicable statutes and court rules, including the public’s right of access to judicial proceedings and a criminal defendant’s rights to confrontation and an open courtroom. No court may compel the attendance of any person for a court proceeding if the court proceeding or the court facility in which it is to be held is not in compliance with this order, including in particular large calendar calls.
On Aug. 11, the Supreme Court of Georgia again extended its judicial emergency order through Sept. 10, 2020. As previously, Chief Justice Melton stated that jury trial and most grand jury proceedings are still prohibited. However, the order makes clear, stating:
This broad prohibition cannot last too much longer, even if the pandemic continues, because the judicial system, and the criminal justice system in particular, must have some capacity to resolve cases by indictment and trial. Accordingly, the COVID-19 Task Force is focusing on how grand jury and jury trial proceedings could safely be conducted even where levels of COVID-19 are high, including the possibility of conducting grand jury proceedings and jury selection remotely.
On Sept. 10, the Supreme Court of Georgia extended the judicial emergency order, for a sixth time, until Oct. 10, 2020. This time, the Court announced that grand jury proceedings may resume. Under this most recent order, the chief judge of each superior court is authorized to resume grand jury proceedings “if doing so can be done safely and in compliance with public health guidance based on local conditions.” In exercising his or her discretion to resume grand jury proceedings, “the chief judge must consult with the local district attorney and follow guidelines developed by the Judicial COVID-19 Task Force for conducting safe grand jury proceedings.”
With this most recent order, jury trials remain suspended in Georgia. However, to prepare for their resumption, the order directs the chief judge of each superior court to convene for each county in his or her judicial circuit a local committee made up of judicial system participants to develop detailed guidelines for safely resuming jury trials. Each committee is directed to use the safe jury trial guidelines developed by the Judicial COVID-19 Task Force. This extension order states that “the goal is to authorize the resumption of jury trials in the next 30-day extension order, which will be issued around Oct. 10.”
However, due to the time required to summon potential jurors for service, the order notes that grand jury hearings and jury trials likely will not begin until a month or longer after they are authorized. The emergency order states:
It also should be recognized that there are substantial backlogs of unindicted cases, and due to ongoing public health precautions, these proceedings will not occur at the scale or with the speed they occurred before the pandemic. Thus, while our justice system must resume moving cases to indictment and trial as rapidly as can be done safely, statutory deadlines based on indictments and jury trials will remain suspended and tolled.
It does seem like there is now at least a light at the end of this tunnel. If you have any questions, contact Rob Register, a lawyer in our firm’s Atlanta office, at 800-898-2034 or by email at Rob.Register@beasleyallen.com.
Source: Supreme Court of Georgia
Jury Trials Will Resume In Alabama
By Order of the Alabama Supreme Court, jury trials were allowed to re-start on Sept. 14, 2020; however, the Supreme Court has put specifics on how and when each circuit will re-start jury trials into the hands of each circuit’s presiding judge. Nearly every circuit in Alabama has indicated jury trials would start back at some point between Sept. 14 and late October 2020. Only a few circuits have not announced re-start dates for jury trials, and these include Circuits 1, 11, 15, 20, 25 and 40; however, all circuits are working on plans to re-start jury trials as soon as possible. The Supreme Court has retained retired Circuit Judge Lane Floyd to help coordinate COVID-related needs between circuits in an effort to assist jury trials in re-starting.
Additionally, the Alabama State Bar, under past President Christy Crow, instituted a COVID Task Force consisting of lawyers representing various areas of practice along with sitting trial and appellate judges to make recommendations to the Supreme Court for re-opening courts. Bob Methvin, who was recently installed as the new Alabama State Bar President, has reactivated this COVID Task Force and added additional lawyers to assist the Bar and the Supreme Court with recommendations for safely re-opening the state’s courts and re-instituting jury trials.
Part of the Task Force’s responsibilities included providing recommended form scheduling orders and pretrial orders to help the Courts continue moving cases forward toward new trial dates. For Alabama lawyers, if your local circuit or district judges do not have these forms available to them, you may request a copy of them from the Alabama State Bar.
In a recent meeting among the Bar, trial judges and the appellate judges, the trial judges highly recommended lawyers use these forms to develop schedules that worked for their filed cases and file them into the judge’s proposed order queue so that the court can take the necessary action on moving cases forward during the pandemic.
If you have any questions, contact Ben Baker, a lawyer in our Personal Injury & Products Liability Section, at 800-898-2034 or by email at Ben.Baker@beasleyallen.com.
THE WHISTLEBLOWER LITIGATION
DHS To Probe Forced Hysterectomy Claims At Georgia ICE Facility
The U.S. Department of Homeland Security (DHS) is investigating a whistleblower’s allegations that women at a Georgia immigrant detention facility underwent hysterectomies without their consent. In a statement, an Immigration and Customs Enforcement (ICE) official said the branch would comply with an investigation by the DHS Office of the Inspector General following complaints the office received from advocacy groups on behalf of ICE detainees at Irwin County Detention Center (ICDCO and nurse Dawn Wooten, a former employee who blew the whistle on what appears to be troubling medical practices at the facility.
As well as allegations of gynecological surgeries performed without consent, the whistleblower’s declaration said:
- ICDC’s warden transferred and deported detainees after they tested positive for COVID-19;
- water was denied to those who staged a hunger strike in protest of conditions at the facility amid the pandemic;
- there are unsanitary conditions at the facility, which is run by LaSalle Corrections, such as inadequate amounts of soap and toothpaste for detainees in isolation and a medical unit that’s dirty and infested with insects.
The inquiry follows mounting pressure from lawmakers on DHS Inspector General Joseph Cuffari to investigate claims by Ms. Wooten and detainees.
Reportedly, there may be at minimum 17 to 18 women who were subjected to unnecessary medical gynecological procedures from just this one doctor, often without appropriate consent or knowledge, and with the clear intention of sterilization, calling the alleged acts “the most abhorrent of human rights violations.”
The conduct described above is reprehensible and cannot be tolerated. Hopefully, justice will be done in the lawsuit and an investigation of the matter will continue to completion.
Two Analysts Earn $2.5 Million SEC Whistleblower Award In Accounting Fraud Case
On Sept. 1, 2020, The U.S. Securities and Exchange Commission (SEC) announced an award of more than $2.5 million to joint whistleblowers whose tip, based largely on highly probative independent analysis of a public company’s filings, led to several successful enforcement actions. The release also noted that the two Wall Street analysts provided helpful assistance early in the investigation, which the SEC stated saved the government time and resources. Their 2017 analysis of Texas-based medical device company, Orthofix, led to a multimillion-dollar settlement between the SEC and the company.
It’s significant that the whistleblowers were not company employees. According to Jane Norberg, Chief of the Office of the Whistleblower: “detailed analysis by outsiders of companies can have a significant impact on the enforcement of the federal securities laws.” She added, “Today’s award demonstrates the Commission’s commitment to awarding individuals who provide high quality independent analysis that leads to successful enforcement actions.”
The two whistleblowers are Wall Street investment advisors who are not affiliated with Orthofix. While looking at Orthofix’s publicly available information to evaluate the company, they noticed inconsistencies in the financial reports. After digging deeper and conducting modeling on the financials, the analysts realized the numbers did not make sense, so they contacted the SEC through counsel.
According to the award, the two whistleblowers “voluntarily provided original information” to the SEC that they described as “highly-probative independent analysis…that revealed possible accounting violations” at Orthofix.
The award also noted the two analysts’ “substantial, ongoing assistance which focused the investigation.” Based on the accounting violations the whistleblowers discovered, the SEC brought an enforcement action against Orthofix that resulted in the company agreeing to pay millions in disgorgement and penalties to the SEC.
Since issuing its first whistleblower award in 2012, the SEC has paid approximately $510 million to 92 individuals who provided tips and assistance resulting in successful enforcement actions. This includes awards to 25 individuals in this fiscal year, totaling approximately $123 million, which is nearly one fourth of the total awarded throughout the program’s history.
Whistleblowers may be eligible for an award when they voluntarily provide the SEC with original, timely and credible information that leads to a successful enforcement action. Whistleblower awards can range from 10% to 30% of the money collected when the monetary sanctions exceed $1 million.
In assessing the appropriate award amount, the SEC considers:
- the significance of information provided;
- the assistance provided in the enforcement action;
- the law enforcement interest in deterring violations by granting awards;
- participation in internal compliance systems;
- unreasonable reporting delay; and
- interference with internal compliance and reporting systems.
The award paid to these two whistleblowers was near the top of the SEC’s scale.
While it is rare that company outsiders serve as whistleblowers, it isn’t unheard of in today’s internet climate. Previous awards have been paid to analysts who uncover fraud in the accounting through examination of publicly available financial information. This shows the SEC’s intent to use the program to aggressively pursue fraud in securities markets.
Our firm has an experienced group of lawyers dedicated to handling consumer fraud cases, with extensive experience in whistleblower actions and securities fraud. If you need more information, or have comments, contact James Eubank, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at James.Eubank@beasleyallen.com. James, before joining our firm, worked for years as a securities regulator with the Alabama Securities Commission He is leading the Whistleblower team on securities fraud investigations.
DUSA Pharmaceuticals Settles Qui Tam Claims For $20.75 Million
Massachusetts-based DUSA Pharmaceuticals, Inc. (DUSA), a subsidiary of Sun Pharmaceutical Industries, Inc. (Sun Pharma), has agreed to pay the United States $20.75 million to settle claims that “DUSA caused physicians to submit false claims to Medicare and the Federal Employee Health Benefit Program by knowingly promoting an administration process for the drug Levulan Kerastick that contradicted the product instructions approved by the U.S. Food and Drug Administration (FDA) and was unsupported by sufficient clinical evidence.”
Levulan Kerastick is a prescription topical solution approved by the FDA to treat minimally to moderately thick actinic keratosis (AKs) of the face or scalp. The “Dosage and Administration” section of the drug’s FDA-approved instructions outlined a two-stage process that involved applying the topical solution to the target lesions and then illumination of the target lesion with blue light following an incubation period of 14 to 18 hours.
The United States, in its claims against the company, alleged:
- By January 2014, senior management at both DUSA and Sun Pharma knew that administration of Levulan Kerastick employing short incubation periods ranging from one to three hours resulted in AK clearance rates significantly lower than those achieved in clinical trials using 14 to 18-hour incubation.” From January 2014 to December 2016, DUSA encouraged physicians to use these demonstrably less effective short incubation periods through “paid physician speaker programs, paid physician peer-to-peer discussions, promotion by DUSA’s sales force, and the dissemination of incomplete or misleading responses to questions from prescribing doctors.”
- DUSA also failed to inform physicians that administering the drug using short incubation periods resulted in significantly lower AK clearance rates than achieved with the longer incubation period described in the FDA-approved instructions.
- DUSA falsely stated in some instances that AK clearance rates were the same for the shorter and less effective incubation periods.
DUSA and its parent company, Sun Pharma, have agreed to enter into a Corporate Integrity Agreement with Office of Inspector General, U.S. Department of Health and Human Services (HHS-OIG) as part of the settlement. “That agreement provides for procedures and reviews to be put in place to avoid and promptly detect conduct similar to that which gave rise to this matter.” DUSA’s settlement resolves a lawsuit filed under the whistleblower provision of the False Claims Act, which permits private parties to file suit on behalf of the United States for false claims and share in a percentage of the Government’s recovery. This lawsuit was filed by Aaron Chung, a former DUSA sales representative. As part of the settlement, Chung will receive approximately $3.5 million.
Fraud continues to be a huge problem in many industries in this country. Our firm has increased its whistleblower practice for this very reason with lawyers Lance Gould, Larry Golston, James Eubank, Paul Evans, Leslie Pescia, Leon Hampton, Tyner Helms, and Lauren Miles working in this area known as “qui tam” cases. These lawyers continue to pursue other cases throughout the country involving fraud on the government.
Source: DOJ press releases https://www.justice.gov/opa/pr/dusa-pharmaceuticals-pay-us-2075-million-settle-false-claims-act-allegations-relating
West Virginia Hospital Settles Whistleblower Lawsuit For $50 Million
The U.S. Justice Department (DOJ) announced on Sept. 9 that Wheeling Hospital has agreed to pay the federal government $50 million to resolve claims that the hospital had improperly issued payments and kickbacks to physicians. The settlement stemmed from a whistleblower complaint filed by Louis Longo, a former Wheeling Hospital executive vice president. Located in Wheeling, West Virginia, the 223-bed hospital is owned by the Roman Catholic Diocese of Wheeling-Charleston. Longo’s whistleblower lawsuit, filed under the federal false claims act, alleged that from 2007 to 2020 Wheeling Hospital’s physician compensation violated federal law by improperly paying millions in excessive compensation based on the volume or value of patient referrals.
The Stark Law prohibits hospitals from billing Medicare for service referrals from physicians the hospital has a financial relationship with, and the Anti-Kickback Statute bars payments or other incentives for referrals that are billed to Medicare. Assistant Attorney General Jeffrey Bossert Clark of the Justice Department’s Civil Division said in a statement:
Improper financial arrangements between hospitals and physicians can influence the type and amount of health care that is provided. The department is committed to taking action to eliminate improper inducements that can corrupt the integrity of physician decision-making.
The lawsuit alleges that the illegal compensation scheme occurred under the direction of the hospital’s prior management, R&V Associates Ltd., and Chief Executive Officer Ronald Violi, who retired in 2019. More specifically, the lawsuit alleges that some physicians received compensation of more than $1 million annually under the kickback scheme. Jeffrey Bossert Clark, Acting Assistant Attorney General of the Justice Department’s Civil Division, stated:
Improper financial arrangements between hospitals and physicians can influence the type and amount of health care that is provided. The department is committed to taking action to eliminate improper inducements that can corrupt the integrity of physician decision-making.
For successfully bringing the whistleblower lawsuit, by law Longo is allowed to share in the recovery and will receive $10 million, according to the Justice Department.
The United States is represented by Colin J. Callahan and Christy Wiegand of the U.S. Attorney’s Office for the Western District of Pennsylvania, Christopher James Prezioso of the U.S. Attorney’s Office for the Northern District of West Virginia and Laurie A. Oberembt and Rohith V. Srinivas of the U.S. Department of Justice. Longo is represented by Amy L. Easton and Jeffrey W. Dickstein of Phillips & Cohen LLP and Christina S. Terek of Spilman Thomas & Battle PLLC.
The case is United States ex rel. Longo v. Wheeling Hospital et al. (case number 5:19-cv-00192) in the U.S. District Court for the Northern District of West Virginia.
Source: ABC News
Gilead To Pay $97 Million To Resolve Copay Kickback Claims
Gilead Sciences Inc. has agreed to pay $97 million to settle claims that it violated the False Claims Act by using a foundation as a conduit to pay the Medicare copays for its pulmonary arterial hypertension (PAH) drug. The U.S. Department of Justice (DOJ) announced the settlement on Sept. 23.
Gilead, which is based in California, used the foundation Caring Voice Coalition (CVC) to pay the copay obligations of thousands of Medicare patients who took the company’s pulmonary arterial hypertension drug, Letairis, the DOJ alleged. But the anti-kickback statute prohibits pharmaceutical companies from paying any remuneration to induce Medicare patients to purchase the companies’ drugs, according to prosecutors.
Federal prosecutors said Gilead used the foundation to cover the patients’ copays to induce them to buy Letairis. The company knew the prices it set for the drug otherwise would have posed a barrier to those purchases, prosecutors said. U.S. Attorney Andrew E. Lelling said in a statement:
Gilead used data from CVC that it knew it should not have, and effectively set up a proprietary fund within CVC to cover the copays of just its own drug. Such conduct not only violates the anti-kickback statute, it also undermines the Medicare program’s copay structure, which Congress created as a safeguard against inflated drug prices. During the period covered by today’s settlement, Gilead raised the price of Letairis by over seven times the rate of overall inflation in the United States.
The government alleged that from June 15, 2007, through Dec. 31, 2010, Gilead routinely obtained data from CVC detailing how many Letairis patients the foundation had assisted, how much CVC had spent on those patients and how much the foundation expected to spend on those patients in the future.
Gilead used the information to budget for future payments to CVC to cover the copays of patients taking its drug but not of patients taking other drug companies’ PAH drugs, according to prosecutors. The government also alleged that Gilead referred Medicare patients to CVC in order to generate revenue from the government program, which resulted in Medicare claims to cover the cost of Letairis.
The Beasley Allen Whistleblower Litigation Team
Beasley Allen’s Whistleblower Litigation Team has been hard at work handling cases under the False Claims Act (FCA). Fraud against the federal government by all too many industries in this country continues to be a huge problem. We expect the amount of fraud against the government to increase greatly during the coming months. Whistleblowers are the key to exposing corporate wrongdoing and government fraud and their role will intensify greatly.
A person who has first-hand knowledge of fraud or other wrongdoing may have a whistleblower case. Before you report suspected fraud or other wrongdoing – before you “blow the whistle” – it is important to make sure you have a valid claim and that you are prepared for what lies ahead. The experienced group of lawyers on our team are dedicated to handling whistleblower cases.
If you are aware of fraud being committed against the federal or state governments, you could be rewarded for reporting the fraud. If you have any questions about whether you qualify as a whistleblower, you can contact one of the lawyers on Beasley Allen’s Whistleblower Litigation Team for a free and confidential evaluation of your claim.
The following Beasley Allen lawyers are on the Whistleblower Litigation Team: Larry Golston (Larry.Golston@beasleyallen.com), Lance Gould (Lance.Gould@beasleyallen.com), James Eubank (James.Eubank@beasleyallen.com), Paul Evans (Paul.Evans@beasleyallen.com), Leslie Pescia (Leslie.Pescia@beasleyallen.com), Leon Hampton (Leon.Hampton@beasleyallen.com), Tyner Helms (Tyner.Helms@beasleyallen.com) and Lauren Miles (Lauren.Miles@beasleyallen.com). Dee Miles, who heads up our Consumer Fraud & Commercial Litigation Section, also participates in the whistleblower litigation and works with the Litigation Team. The lawyers can be reached by phone at 800-898-2034.
PRODUCT LIABILITY UPDATE
Beasley Allen Files Lawsuit In Motorhome Rollover Deaths
Beasley Allen has filed a lawsuit on behalf of the estate of Leland and Stephanie Courson, who were tragically killed when their motorhome overturned on Interstate 65 in May 2020. The defendants include Tiffin Motorhomes, Inc., Daimler Trucks North America, LLC, and Freightliner Custom Chassis Corporation. Beasley Allen lawyers Greg Allen, Jere Beasley, Kendall Dunson and Evan Allen are representing the estate.
The Coursons were travelling southbound in their 2017 Tiffin Allegro Red Motorhome on Interstate 65 when they attempted to change lanes and the vehicle became unstable and out of control, swerving off of the paved road. Mr. Courson attempted to pull the vehicle back onto the pavement when the motorhome began to roll, resulting in a roof crush that killed both Stephanie and Leland. Mr. and Mrs. Courson were both wearing their seatbelts. Greg Allen had this to say:
Tragically, the Coursons, like others, had no way of knowing how dangerous these very expensive vehicles can be. They are not subject to any Federal vehicle safety standards regarding roof strength or stability. If one rolls over the structure completely collapses and the weight of the frame and motorhome cause occupants to be crushed.
In the August issue of the Report, we wrote about how dangerous large motorhomes are. The case we just filed is a classic example of the hazards created by the design and manufacturing of a defective product. The fact that a huge motorhome is big and expensive creates a false image of safety.
The complaint was filed in The Circuit Court of Montgomery, Alabama. Bruce Hill v. Tiffin Motor Homes, Inc. et al 03-CV-2020-901156.00.
California Court Finds Amazon Liable For Defective Battery
A California appeals court has overturned a summary judgment in which a San Diego trial court found that Amazon could not be held responsible for a battery that injured the Plaintiff. According to the lawyers in the Plaintiff’s suit, she purchased a replacement laptop battery through the Amazon platform from Lenoge Technology Ltd., which sold products on Amazon as E-Life. She claimed that the battery exploded several months after she purchased it leading her to suffer severe burns.
The trial court originally found that Amazon was an “online marketplace” and could not be held liable. The appellate court ruled that Amazon.com LLC was liable for a defective battery that was sold on its website, saying that because the online retailer made itself part of the stream of distribution, it should be treated just like brick-and-mortar retailers in cases like these. In its 50-page opinion, the court stated that without Amazon’s intentional actions, the defective battery never would have landed in the hands of the Plaintiff. Accordingly, the court determined Amazon should be held responsible because of its “pivotal” role in bringing the product to the consumer.
The appellate court further held that Amazon was liable because it had gone beyond providing Lenoge space on its website, but it also took possession of the battery, stored the battery in its warehouse, took payment for the battery, and eventually shipped the battery using Amazon packaging. Even further, the appellate court reasoned that it was Amazon that set its terms with Lenoge, prohibited Lenoge from contacting buyers except through Amazon, and demanded indemnification fees for each purchase.
The court went on to say that, like a traditional retailer, Amazon can play a substantial role in ensuring the products it sells are safe by monitoring and tracking consumer complaints, and by removing dangerous products from its web pages. The court was careful to note that this decision applies to the facts of this case in particular, and may not necessarily apply to all websites that sell the products of third parties, or even other Amazon purchases.
It’s quite obvious that this ruling is very important. When asked, Jeremey Robinson, a lawyer with Casey Gerig, a San Diego area law firm, representing the Plaintiff, said, “It is impossible to overstate the magnitude of this ruling. Consumers across the nation will feel the impact of this.” I agree with this assessment.
Several Lawsuits Put More Pressure On Pressure Cooker Manufacturers
Yet another lawsuit has been filed against a pressure cooker manufacturer, this time in a Florida state court. The lawsuit against Tristar Products, Inc. includes claims of strict liability, negligence, failure to warn, and design defects.
Vanna Robinson states that, in 2018, she was injured when her Tristar pressure cooker allowed her to remove the lid, even though the unit was still under pressure. When a pressure cooker’s lid is removed while the contents are still under pressure, a mini explosion occurs, causing the scalding hot contents to spew from the cooker. Tristar markets that it is impossible to remove the lid while the cooker is under pressure, claiming that there is “no safer way to cook.”
This lawsuit comes on the heels of another pressure cooker suit, filed in New Jersey against Cuisinart (and parent company Conair), and an earlier settlement between Tristar and class members that resulted in $2,000,000 in class counsel fees and coupons for class members.
Despite Tristar’s claims of safety, there have been numerous recalls and incidents reported to the U.S. Consumer Product Safety Commission (CPSC), from brand names like Stihl and Double Insight. Considering the contents of a pressure cooker can reach temperatures in excess of 240 degrees Fahrenheit, it is critical that a pressure cooker manufacturer insures that the pot cannot be opened under pressure.
Other lawsuits alleging similar defects in pressure cookers note that complaints and injuries began occurring as early as 2016, with little to no change in the design of these quick-cooking products. Lawsuits in New Jersey center on the Cuisinart CPC-600 series.
If you have any questions, contact Warner Hornsby, a lawyer in our firm’s Personal Injury & Products Liability Section, at 800-898-2304 or by email at Warner.Hornsby@beasleyallen.com. Warner handles product liability cases for Beasley Allen.
Sources: Law360.com and Cpsc.gov
IMMI Recalls Harnesses Made For Polaris, Can-Am, And Kawasaki UTVs Due To Injury Hazard
Indiana Mills & Manufacturing, Inc., of Westfield, Indiana and IMMI de Mexico Production S. de R.L. de C.V., of Mexico, has recalled about 162,000 IMMI SubZero 4-point and IMMI Click6 6-point Utility Terrain Vehicle (UTV) harnesses. The harness can be missing stitching, posing an injury hazard to the occupant by failing to properly restrain them in the event of a crash.
This recall involves IMMI SubZero 4-point and Click6 6-point harnesses installed in Polaris Model Year 2015 and 2017-2020 RZR XP1000, RZR Turbo, RZR TurboS, and RZR Pro XP UTVs. “Polaris,” “Can-Am” or “Kawasaki” are printed on the harness. SubZero and Click 6 harnesses were also sold as aftermarket accessories compatible for the following UTV models: Kawasaki Teryx KRX®1000 SxS, Can-Am Maverick and Maverick X3, and Polaris RZR XP1000, RZR Turbo, RZR TurboS, and RZR Pro XP. IMMI reports that seven harnesses lacked stitching at one of multiple attachment points. No injuries or property damage have been reported.
The harnesses were sold at Polaris, Kawasaki and Can-Am dealerships nationwide from April 2014 through May 2020 for between $160 and $240 for Sub-Zero and between $250 and $550 for Click6 harnesses. Polaris dealerships installed the harnesses in Polaris Model Year 2015 and 2017-2020 RZR XP1000, RZR Turbo, RZR TurboS, and RZR Pro XP UTVs. Consumers should immediately stop using the recalled SubZero and Click6 harnesses until inspected by an authorized dealer.
Consumers with affected harnesses missing stitching will receive a free replacement harness. Contact IMMI at imminet.com/recall or imminet.com and click on Safety Recall Information or call IMMI toll-free at 877-255-4205 from 9 a.m. to 5 p.m. ET Monday through Friday for more information. Consumers can also contact their authorized dealer: Polaris at 800-765-2747 from 9 a.m. to 5 p.m. ET Monday through Friday, BRP/Can-Am at 888-272-9222 from 8 a.m. to 8 p.m. ET Monday through Friday, or Kawasaki at 800-802-9381 from 7 a.m. to 4 p.m. PT Monday through Friday.
MWE Investments Recalls Westinghouse Portable Generators
MWE Investments, of Columbus, Ohio, has recalled about 7,500 Westinghouse WGen5300DFv Dual Fuel Portable Generators. The recalled portable generators can leak fuel, posing a fire and burn hazard. This recall involves Westinghouse WGen5300DFv Dual Fuel Portable Generators and Westinghouse iGen4500DF Dual Fuel Inverter Portable Generators with manufacture dates from October 2019 through December 2019. The dual fuel generators can run on gasoline or propane.
The WGen5300DFv has a bright blue and black metal exterior and has “Westinghouse” and “WGen5300DFv” printed in white lettering on the control panel on the side of the generator. The generator has a fold down handle and wheels for portability. The generator measures about 23.3 inches long by 20 inches wide by 19.29 inches tall without its wheel kit. It weighs about 129 pounds.
The iGen4500DF has a bright blue plastic cover and has “Westinghouse iGen4500DF” printed in white lettering on both side panels. The generator measures about 29.7 inches long by 19.7 wide inches by 22 inches tall. It weighs about 105 pounds. Affected units will have one of the following serial numbers, which can be found on the unit’s back panel (the “x” fields are specific to individual units): 04511A1019xxxxxxxxx, 04511A1219xxxxxxxxx, 5311A1219xxxxxxxxx. The company has received 26 reports of fuel leaking from the fuel valve. No fires, injuries, or property damage have been reported.
Consumers should immediately stop using the recalled generators and contact MWE Investments to arrange for a free repair. The WGen500DFv was sold at Sam’s Club nationwide and online at SamsClub.com. The iGen4500DF was sold online at amazon.com, homedepot.com, lowes.com, electricgeneratorsdirect.com, powerequipmentdirect.com, norwall.com, and other online locations. The generators were sold from January 2020 through May 2020 for between $450 and $1,050, depending on the model. Contact MWE Investments toll-free at 855-944-4796 from 9 a.m. to 5 p.m. ET Monday through Friday, email email@example.com, or online at www.westinghouseoutdoorpower.com and click on “Product Safety” located at the top of the page.
THE JUUL LITIGATION
Washington Attorney General Sues Juul Over Youth Marketing
The Washington state attorney general has filed suit against JUUL Inc. in state court alleging that JUUL knew that its marketing on social media targeted minors, but took no action to stop underage vaping.
The lawsuit, filed by Attorney General Bob Ferguson, alleges that when JUUL launched its e-cigarettes, the company flooded social media with brightly colored ads of young models and recruited brand ambassadors to push its products because they had established followings as youth trendsetters. The suit claims that JUUL violated the state’s consumer protection laws and failed to meet the state’s tobacco product licensing requirements, making sales of the vape products between August 2016 and April 2018 unlawful. Attorney General Ferguson said in a statement:
JUUL put profits before people. Pushing unfair and deceptive marketing strategies appealing to youth, the company fueled a staggering rise in vaping among teens. JUUL’s conduct reversed decades of progress fighting nicotine addiction, and they must be held accountable.
The state’s lawsuit is the latest legal setback for the embattled vaping company, which faces similar lawsuits from other state attorneys general, as well as multidistrict litigation in California alleging it hid the dangers of vaping in its marketing.
According to the Attorney General, a 2018 study of JUUL’s Twitter audience showed that 80% of followers are between the ages of 13 and 20. Although JUUL employees monitor its social media feeds and saw teenagers posting about vaping, the company did little to address the issue, the attorney general said. The state said in the suit:
Indeed, in a Sept. 11, 2018, interview with CNBC about how JUUL had so quickly achieved market domination and its high percentage of underage consumers, the defendants’ co-founder James Monsees admitted that JUUL’s success had been achieved ‘through a flawed marketing campaign, not the best one. The defendants’ marketing campaign was much more than ‘flawed,’ it was unlawful.
JUUL’s founders studied how Big Tobacco advertised and marketed traditional cigarettes through its company Pax Labs, according to the suit. “Pax did not set out to make a healthier alternative to cigarettes; it set out to revive cigarettes’ appeal for a new generation by making them cool again,” the state said in the suit. “One Pax engineer in 2015 said, ‘we’re not trying to design a cessation product at all,’ and ‘health is not on our mind.’”
JUUL’s tactics worked, the state argued, because while youth smoking is on the decline, underage vaping has risen rapidly in recent years. The attorney general said:
A staggering 27.5% of high school students had recently smoked electronic cigarettes in 2019, up from 1.5% in 201. And 10.5% of middle school students had done the same, up from 0.6% in 2011.
Youth vaping has also become a major problem for school administrators and teachers, as school bathrooms have become hangouts for teens to vape.
And for the first three years that JUUL was on the market, JUUL deceived consumers by failing to disclose that JUUL pods had addictive amounts of nicotine and made misleading claims about the amount of nicotine in its products, the suit says.
The state is represented by assistant attorneys general Rene Tomisser, Joshua Weissman, Breena Roos and Brendan Selby. The case is the State of Washington v. JUUL Labs Inc. in the King County Superior Court.
JUUL May Pull Out Of Global Markets
Vape product sales have taken a turn for the worse for companies like JUUL since the U.S. Food and Drug Administration (FDA) has cracked down on regulations. That’s clearly a good thing for all U.S. citizens, and especially for young people.
The COVID-19 pandemic, starting in March of this year, has made matters even worse. Meanwhile, traditional cigarette sales are only slightly down since the pandemic started and even higher than they normally would have been if not for the introduction of electronic cigarettes.
One professor at the University of Ottawa pointed out that the tobacco policies the FDA implemented regarding electronic cigarettes have led to more instances of smoking traditional cigarettes than would have been the case. He noted that the heightened regulations on e-cigarettes have actually been very beneficial to the traditional cigarette market. Overall, FDA restrictions seem to be working to reduce the sales of these products to young people as sales have steadily declined since last year, particularly since JUUL was forced to remove its flavored cartridges off the market, saving menthol and tobacco flavors.
In fact, vape device sales have declined such that JUUL has considered pulling out of other markets across the globe where it feels it is are not making enough return on its investments. Particularly, in some Asian Pacific and European markets sales have declined substantially enough for JUUL to consider not selling the devices there at all. JUUL did this earlier in South Korea after similarly failing in that market amidst strong government warnings against the product. Altria, owner of Marlboro cigarettes, purchased a $12.8-billion-dollar stake in JUUL in December 2018, an investment now worth only about a third of that at $4.2 billion dollars. JUUL has yet to make any definite decisions.
Sources: journalnow.com and Reuters
The JUUL Litigation Team
Beasley Allen lawyers Joseph VanZandt, Sydney Everett, James Lampkin, Beau Darley, Soo Seok Yang, and Mass Torts Section Head Andy Birchfield are currently representing a number of individuals who are suing the top U.S. vape maker JUUL for the negative impact its products have had on their lives. These lawyers currently make up our firm’s JUUL Litigation Team. Lawsuits have also been filed on behalf of school districts nationwide, which seek to protect students and recover resources spent fighting the vaping epidemic. If you have a potential claim or need more information on JUUL, contact any the lawyers on the team at 800-898-2034 or by email at Joseph.VanZandt@beasleyallen.com, Sydney.Everett@beasleyallen.com, James.Lampkin@beasleyallen.com, Beau.Darley@beasleyallen.com, SooSeok.Yang@beasleyallen.com or Andy.Birchfield@beasleyallen.com.
MASS TORTS LITIGATION
J&J Loses On Appeal In $70 Million Risperdal Case
The Pennsylvania Supreme Court will not hear an appeal from a Johnson & Johnson (J&J) unit seeking to avoid a $70 million verdict won four years ago by a man who grew breasts after taking the antipsychotic drug Risperdal as a child. The J&J subsidiary, Janssen Pharmaceuticals Inc., had asked the Supreme Court to review the case following a Pennsylvania Superior Court ruling rejecting arguments that the seven-figure verdict, which would compensate 20-year-old Andrew Yount for psychological and emotional damage he suffered as a result of his condition, was excessive. But in a one-page order on Sept. 1, the Supreme Court rejected Janssen’s appeal.
Yount and his family filed suit against Janssen in Philadelphia County in April 2013, alleging that the company failed to provide adequate warnings about the risk of gynecomastia, or the abnormal growth of breasts by men, that Risperdal carried for adolescent boys.
When he was 4 years old, Yount started taking Risperdal to combat psychiatric problems that included violent and erratic behavior. When he first started taking the drug in 2003, it was only approved for use in treating schizophrenia in adults. Warning labels indicated that gynecomastia was a “rare” side effect that occurred in fewer than one in 1,000 patients. The drug later won approval from the U.S. Food and Drug Administration (FDA) for use in treating symptoms of autism in adolescent patients. The label was subsequently updated to show that gynecomastia occurred in 2.3% of children who used it.
The Yount case was the fifth case over alleged Risperdal-related side effects in children to go to trial in Philadelphia as part of a mass tort program wound up with claims from more than 7,000 people. A jury awarded Yount and his family $70 million in noneconomic damages in the 2016 trial.
Janssen argued on appeal to the Superior Court that the FDA was solely responsible for requiring warnings related to off-label use of medications, and that, as a result, claims Yount and his family brought over the label under applicable law in their home state of Tennessee were preempted.
But the Superior Court rejected this argument as it noted that pharmaceutical companies always had the authority to provide additional warnings when additional risks about their drugs were discovered.
The panel also rejected claims that a $70 million award solely for psychological and emotional damage was excessive. The court’s opinion said:
[Yount] was just 4½ years old when first prescribed Risperdal, and he has never since known life without gynecomastia. At sixteen years of age when the jury considered its award, [Yount] was living with severe and permanent disfigurement. The undisputed record confirms he has been routinely bullied and teased by peers and is too humiliated to ever remove his shirt in recreational or social situations where it would be customary for boys to do so when enjoying ordinary pleasures of youth.
The case will now return to a Philadelphia County courtroom for a second trial on a potential punitive damages award. It will be interesting to see if Janssen will let that phase of the case go to trial.
The Younts are represented by Charles “Chip” Becker, Christopher Gomez, Thomas Kline and Ruxandra Laidacker of Kline & Specter PC, Jason Itkin and Cory Itkin of Arnold & Itkin LLP and Stephen Sheller of Sheller PC. They have done a tremendous job in what is considered a highly significant litigation.
The case is A.Y. et al. v. Janssen Pharmaceuticals Inc. et al. (case number 95 EAL 2020) before the Pennsylvania Supreme Court.
Bard Reaches $60 Million Multistate Settlement Over Pelvic Mesh Marketing
Medical device maker C.R. Bard Inc. has agreed to a $60 million settlement with the attorneys general of 48 states and Washington, D.C., to end claims the company deceptively marketed its transvaginal surgical mesh devices to patients by downplaying serious risks.
California Attorney General Xavier Becerra and Washington state Attorney General Bob Ferguson said in a statement on Sept. 24 that Bard misled women about the life-altering risks of the mesh devices, including chronic pain and recurring infection, as well as other serious complications.
Under the terms of the settlement, Bard will pay $60 million to the 48 states and the District of Columbia. Only Wyoming and Georgia did not participate in the case, which was filed just a day earlier in California state court. Becerra said:
Women should be able to trust that the health products they use are safe. Misleading patients and neglecting to disclose risks or side effects of medical products is dangerous, irresponsible, even deadly. Bard was caught engaging in these shameful practices, and for that, they now pay.
Bard stopped selling its surgical mesh products, which are intended to treat pelvic organ prolapse and stress urinary incontinence, in 2016. If Bard and its parent company, Becton, Dickinson and Co., choose to reenter the market, they must abide by the terms of the settlement, such as including a list of certain complications in marketing materials and making sure patients understand them.
The investigation was led by the California and Washington state attorneys general, along with those of Florida, Indiana, Maryland, Ohio, South Carolina and Texas.
California’s complaint, filed Wednesday in San Diego, said that Bard didn’t disclose that complications from its pelvic mesh devices could be permanent even after surgical intervention. The state said in the complaint:
C.R. Bard’s surgical mesh products are intended to be permanent implants and were designed for integration into the body and tissue ingrowth, making them difficult, if not impossible, to surgically remove. C.R. Bard misrepresented or failed to disclose that removal of one or more of its surgical mesh devices may not be possible, and that additional surgeries may not resolve complications.
The state also alleged that Bard misrepresented these risks occurred as the result of doctor error or surgical technique. The state said: “Thousands of women implanted with surgical mesh have suffered serious complications resulting from these devices.”
The case is People of the State of California v. C.R. Bard Inc. in the Superior Court of the State of California for the County of San Diego.
JUUL And Altria Face Multiple Shareholder Suits For Investor Losses Related To Marketing To Minors
JUUL Labs Inc. has been investigated by multiple government agencies and hit with scores of lawsuits regarding the safety of vaping products and its sales practices aimed at hooking American youth on nicotine with its vape devices. The marketing practices lawsuits, now consolidated into a multidistrict litigation (MDL) in the U.S. District Court for the Northern District of California, expose the company to massive liabilities.
There are also unconfirmed reports that the Securities and Exchange Commission (SEC) is investigating Altria’s investment in JUUL. But government investigations and the marketing litigation are not the only legal troubles facing the company. Several shareholder lawsuits against JUUL and tobacco giant Altria, Inc. allege that investors in the companies have lost millions over the scandal. Altria, owner of the Marlboro, Copenhagen, and Skoal tobacco brands, is part-owner of JUUL, and has previously faced scrutiny for marketing tobacco products to children.
In December 2018, Altria invested $12.8 billion for a 35% stake in JUUL. At the time, Altria valued JUUL, a privately held company not traded on stock exchanges, at $38 billion. As part of the deal, two directors from Altria were added to the board of directors for JUUL. Since the investment, JUUL has been subject to numerous government investigations, including U.S. Food and Drug Administration (FDA) investigations regarding seizures and lung failure, particularly in children and young adults, experienced after use of its products and an FTC investigation regarding its marketing practices using social media “influencers” to appeal to minors. Hundreds of lawsuits have been filed by proposed classes, individuals, state and local governments, and school districts.
Due to the investigations and litigation risks, in October of 2019 Altria wrote down the value of its JUUL stake by $4.5 billion, more than one third of its original price. At the close of 2019, Altria further wrote down the value by $4.1 billion. As of January 2020, JUUL was valued at around just $12 billion – less than what Altria had invested for just a 35% stake. The loss of so much on the books for Altria has caused the company’s stock to crater.
The drop-in value lead to class action suits by Altria shareholders, who allege the company’s leadership failed to serve the company’s best interest and did not perform adequate due diligence when valuing the JUUL investment. Every time news broke about a new investigation or drop in JUUL’s value, the stock saw massive losses. The combined value of the losses on the dates these stories were announced adds up to nearly $18 billion in market capitalization. Overall, from April 2019 to March 2020, Altria lost approximately $50 billion in market value.
The suits argue the company executives breached their fiduciary duties to shareholders by failing to properly evaluate the risks associated with JUUL as an investment. Even at the time Altria acquired its stake in JUUL, news about their marketing to minors was already widespread. In 2018 the FDA had already announced, pointing JUUL out by name, its intent to start new enforcement actions “to stop youth use of, and access to, JUUL and other e-cigarettes.” Just a month before the investment, JUUL agreed to stop selling certain popular flavors of vapes in response to regulatory pressure. Despite these very public warnings, Altria poured billions into JUUL. Altria is moving to dismiss a consolidated shareholder suit pending in the U.S. District Court for the Eastern District of Virginia, originally filed in October of 2019. (Klein v. Altria Group, Inc., et al., Case No. 20-cv-00075), and has yet to answer another shareholder complaint filed in the Northern District of California last month (Lorca v. Gifford, et al., Case No. 20-cv-06041).
JUUL’s founders have also been sued for the way they handled the investment from Altria. A minority shareholder has claimed that the company’s co-founders, Adam Bowen and James Monsees, and executives engaged in self-dealing when they paid themselves millions of dollars as a “special dividend/bonus,” while minority shareholders got no such payment.
The complaint further alleges Bowen and Monsees permitted themselves to sell $500 million in stock following the Altria deal while restrictions placed on other minority shareholders prohibited them from doing the same unless they received approval from the company’s board.
Minority shareholders in private companies often face great risk because they have no control over the management of the company and because, since the stock is not traded on any public exchange, it can often be difficult or impossible to sell the stock once it is acquired.
The case, Grove v. Bowen, et al., is pending in the Superior Court of the State of California for the County of San Francisco (CGC-20-582059). If you have any questions, contact James Eubank, who handles securities litigation for our firm, at 800-898-2034 or by email at James.Eubank@beasleyallen.com.
Daimler $19 Million Emissions Settlement Gets Initial Approval
U.S. District Judge Dale S. Fischer on Sept. 22 granted preliminary approval of a $19 million settlement between Daimler AG and its shareholders to settle class action claims that the company used cheat devices to fool emissions tests, inflating its stock and deceiving shareholders.
Judge Fischer said the “court will likely be able to approve the proposed settlement as fair, reasonable, and adequate” subject to further consideration at a planned Dec. 14 settlement hearing. At that time, the judge will certify the settlement class as those who bought Daimler shares from Feb. 22, 2012, through April 21, 2016. The $19 million settlement would be distributed pro rata to shareholders with valid claims based on their “recognized loss” as a result of Daimler allegedly inflating its stock prices, according to the April request for approval.
The suit was filed in April 2016 by shareholders who alleged in a consolidated suit that Daimler programmed the BlueTEC diesel technology in some vehicles made by Mercedes-Benz to perform much better during emissions testing than they did during actual driving.
The shareholders said that while the BlueTEC cars emit nitrogen oxides at levels many times higher than the U.S. Environmental Protection Agency (EPA) allows, Daimler marketed them as “clean diesel” vehicles. The suit, now with lead Plaintiff Public School Retirement System of the School District of Kansas City, Missouri, had alleged that Daimler inflated the prices of American depository receipts by claiming it never used so-called emissions testing “defeat devices” in those vehicles. Shareholders asked Judge Fischer to approve the settlement in April and to bring four years of litigation to an end.
The investors are represented by James W. Johnson, Michael H. Rogers, Irina Vasilchenko, James T. Christie and Margaret Schmidt of Labaton Sucharow LLP and Joshua L. Crowell of Glancy Prongay & Murray LLP. The case is Vancouver Alumni Asset Holdings Inc. v. Daimler AG et al. (case number2:16-cv-02942) in the U.S. District Court for the Central District of California.
INSURANCE INDUSTRY LITIGATION
Business Interruption Litigation Update
As the Covid-19 pandemic continues to negatively impact our nation, firms across the country – including Beasley Allen – have been taking a stand against insurance companies denying business interruption insurance coverage claims. Numerous cases have been filed and courts are forced to wrestle with whether business interruptions due to an unpredictable virus and subsequent government-forced shutdowns are covered causes of loss. Much of the dispute arises from whether there is an exclusion for viruses in the policy and the meaning of “physical loss or damage” in policies.
The Western District of Missouri recently denied two motions to dismiss involving Cincinnati’s denial of coverage for COVID-19 losses, holding that the Plaintiffs in those cases adequately alleged direct physical loss under the business income and civil authority order provisions of their policies. In Studio 417, Inc. v. Cincinnati Ins. Co., No. 20-CV-03127-SRB, 2020 WL 4692385, at *4 (W.D. Mo. Aug. 12, 2020), the court made clear that the Plaintiffs “plausibly alleged that COVID-19 particles attached to and damaged their property, which made their premises unsafe and unusable,” such that dismissal was unwarranted. Additionally, the court rejected Cincinnati’s argument that physical alteration or structural damage is required to alleged physical loss or damage.
In Studio 417, the court applied Missouri interpretation principals that “rely on the plain and ordinary meaning of the phrase[s]” to interpret the Covered Cause of Loss language of a Cincinnati entity’s policy requiring physical loss or damage. When interpreting the policy, the court recognized “Defendant conflates ‘loss’ and ‘damage’” in arguing that the Policies require a tangible, physical alteration” of property to allege physical loss or damage. The court further emphasized the “or” in Cincinnati’s definition of loss as “accidental physical loss or accidental physical damage.” As such, the court held that, because the Court must give meaning to both terms, a physical alteration or structural damage was not required to adequately plead a Covered Cause of Loss. The court ultimately held that the business’s allegations that COVID-19 “attached to and deprived Plaintiffs of their property, making it ‘unsafe and unusable’” were sufficient to allege physical loss or damage. Id.
In a case decided by the same judge as Studio 41, the court in K.C. Hopps, Ltd. v. Cincinnati Ins. Co., No. 20-cv-00437-SRB (W.D. Mo. Aug. 12, 2020), held that “[f]or substantially the same reasons as those in the Studio 417 Order, the Court finds that Plaintiff’s claims against Defendant are adequately stated.”
A New Jersey court in Optical Services USA/JC1 v. Franklin Mutual Insurance Company, No. BER-L-3681-20 (N.J. Super. Ct. Aug. 13, 2020), additionally denied an insurer’s motion to dismiss. The business alleged that it lost functionality of its property due to COVID-19 and the related closure orders. Id. at p. 25. Just as the court in K.C. Hopps and Studio 417, the court in Optical looked to the plain meaning of these terms and found that the “pivotal issue before this Court is the parties’ interpretation of the subject policy language and . . . the interpretation of a direct covered loss under the policy and whether or not there was physical damage to the Plaintiffs’ business.” The court found compelling the argument that “the term ‘physical’ can mean more than material alteration or damage . . . .”
However, other courts have dismissed of granted summary judgment in the context of business interruption claims arising from the COVID-19 pandemic and related government orders. In Diesel Barbershop, LLC v. State Farm Lloyds, No. 5:20-CV-461-DAE, 2020 WL 4724305, at *5 (W.D. Tex. Aug. 13, 2020), the court held that a barbershop’s allegations that government orders caused physical loss failed to plead an “accidental direct physical loss” under its policy, in light of precedent from its circuit and its sister district court in Texas requiring “distinct, demonstrable physical alteration of the property.”
The policy at issue in Diesel Barbershop defined loss as only “accidental direct physical loss[,]” such that the Diesel Barbershop court could construe loss to mean solely physical damage without rendering any terms superfluous, unlike Studio 417. Further, the barbershop’s policy had a virus exclusion, which the barbershop attempted to plead around by alleging it was the government “[o]rders that caused the direct physical loss” and “that it is not COVID-19 within Plaintiffs’ Properties that caused the loss directly.” This virus exclusion and the limited definition of loss contained within the policy were decisive on the issue.
Further, in Rose’s 1, LLC. v. Erie Ins. Exchange, No. 2020 CA 002424 B, 2020 WL 4589206, Dkt. 26-3 at 6 (D.C. Super. Aug. 06, 2020), the court granted summary judgment because restaurants did not offer any evidence that the virus was present at their premises and because the government orders alone could not constitute physical loss. Plaintiffs attempted to argue that their loss of use was “direct” because the closures were the direct result of the mayor’s orders, their losses were “physical” because the virus is material and tangible, and that “loss” encompasses loss of use. However, the court rejected the restaurants’ argument, holding the words “direct” and “physical” in the restaurants’ policies modified the word “loss.” In reaching its holding, the court in Rose’s 1 relied on case law from its jurisdiction for the proposition that “the term ‘direct loss’ implies some form of direct physical change.”
Lastly, in The Inns by the Sea v. California Mut. Ins. Co, Case No. 20-CV-001274 (Cal. Super. Ct., Monterey Cty. Aug. 6, 2020), the court granted dismissal without leave to amend. Plaintiffs argued precedent where there was smoke damage, E. Coli, gas vapors and carbon monoxide to demonstrate that insurance coverage is appropriate because the air within the insured property is part of the physical premises of the property. Plaintiff analogized those cases with the COVID-19 virus by saying those cases hold that when there is a “physical change or physical invasion of a harmful substance that renders a space functionally useless, you have direct physical loss of or damage to property.” In rejecting its arguments, the court noted that the government mandated shutdown was not necessarily due to COVID being present at the insured premises, but rather was to avoid the spread of the virus from people moving around the state.
In addition to state and federal courts around the court deciding motions to dismiss and for summary judgment, the Judicial Panel on Multidistrict Litigation (JPML) issued an order on Aug. 12, 2020, directing specific insurers to show cause why actions involving business interruption claims should not be centralized into multidistrict litigations (MDLs). Specifically, the order was directed to The Hartford, Cincinnati Insurance Co., Certain Underwriters at Lloyd’s of London, and Society Insurance Co. These matters are set for consideration by the Panel at its hearing scheduled for Sept. 24, 2020; as such, we do not have the information from that hearing at time of publication.
Beasley Allen lawyers are actively investigating and filing claims against various insurance companies for denial of business interruption coverage during the COVID-19 pandemic. Dee Miles, head of our Consumer Fraud & Commercial Litigation Section, Rachel Boyd and Paul Evans, lawyers in the Section, are spearheading this litigation for our firm and are monitoring all MDL developments as they arise. If you have any questions, or you would like to discuss potential claims, contact Dee, Rachel or Paul at 800-898-2034 or by email at Dee.Miles@beasleyallen.com, Rachel.Boyd@beasleyallen.com, or Paul.Evans@beasleyallen.com.
Chubb Must Defend Rite Aid In Opioid Suits
The Delaware Superior Court ruled on Sept. 22 that Chubb must defend Rite Aid Corp. in hundreds of suits alleging it improperly distributed opioids, finding that alleged economic losses in the underlying litigation were caused by “bodily injury” covered by Chubb’s policy. Judge Eric M. Davis said in the order that the multidistrict litigation (MDL), which alleged that Rite Aid “caused a public health epidemic” by “knowingly” passing out prescription opioids to its customers, was seeking damages covered by the policy, adding that the economic costs alleged in the MDL were incurred “because of bodily injury” from the opioid crisis. He said further that it is “undisputed” that the MDL alleged that “there was physical harm from opioid addiction and that such harm constitutes bodily injury under the policy.”
Rite Aid has been sued in more than 1,143 lawsuits by government agencies and institutions paying medical care seeking billions of dollars of damages for costs resulting from Rite Aid’s distribution of the highly addictive painkiller. In December 2017, the U.S. Judicial Panel on Multidistrict Litigation (JPML) began consolidating federal opioid suits in Ohio federal court. The government agencies and organizations claimed that they had to incur huge economic costs in providing health care and public services to those suffering from opioid abuse, addiction, and resulting injuries or deaths. They alleged that Rite Aid improperly distributed the painkillers to its local pharmacies and customers, fueling the opioid epidemic.
Rite Aid sought defense from Chubb in April 2018 and sued the insurer a year later after it was denied coverage. “Some of the economic losses sought by the governmental entities are arguably because of bodily injury,” Judge Davis said in his order, adding:
All the opioid lawsuits alleging similar claims are potentially covered under the policy, because the court interpreted insurers duty to defend ‘broadly in favor of the policyholder.
The case is Rite Aid Corp. et al. v. ACE Insurance Co. et al. (case number N19C-04-150) in the Superior Court of the State of Delaware.
CONSUMER MONEY MATTERS
Settlement Reached In Pay-For-Delay Antitrust Litigation
In September, United States District Judge William E. Smith granted final approval to three settlements in pay-for-delay antitrust litigation involving Lupin Pharmaceuticals and Allergan subsidiaries Warner Chilcott and Watson Pharmaceuticals. The three settlements total approximately $183.5 million. “Pay-for-delay” is a term describing a pharmaceutical industry practice that involves brand-name drug makers compensating their generic counterparts for delaying marketing their versions of brand-name drugs, causing longer delays in getting more affordable, generic drugs to the market.
In 2013, direct purchasers including retailers, drug wholesalers, insurance companies and other drug purchasers sued Warner Chilcott and Watson for allegedly cutting a decade-old deal that drove competitors of its drug Loestrin off the market. The lawsuit claimed Warner Chilcott entered into agreements with Watson and generic drugmaker Lupin Pharmaceuticals to delay a generic version of Loestrin 24 FE from coming to market, which allowed Warner Chilcott to stave off generic competition and continue demanding a premium for its brand-name contraception.
Warner Chilcott also allegedly used a false patent as a basis for “sham lawsuits” against generic manufacturers of Loestrin 24 and switched the market from Loestrin to Minastrin – “a nearly identical product,” according to the lawsuit – in an effort to get doctors to prescribe the newer drug.
The lawsuit also alleges that Warner withheld from the U.S. Patent and Trademark Office a study that either was not sufficient or would have proved Loestrin 24 FE had been in public use for a year, making it ineligible for a patent.
At the end of last year, the day the trial was supposed to begin, Allergan announced it had agreed to settle the litigation, though the deals included no admissions of wrongdoing. Classes of direct purchasers, end purchasers – including cities and unions as well as other employee benefits administrators – and third-party purchasers all asked for approval of the deals.
Specifically, the judge approved a $1 million settlement between Lupin and a group of end payors of the drug, a $62.5 million deal between third-party purchasers and the Warner Chilcott Defendants, and a $120 million settlement between Warner Chilcott and Watson with a group of direct purchasers.
This case is one of several containing allegations that pharmaceutical companies with name-brand drugs paid generic companies to delay introduction of a generic version so that they can continue to charge name-brand prices for as long as possible.
This “pay-for-delay” scheme is only one of the many gross abuses that occur in the marketplace with pharmaceutical company pricing. Beasley Allen lawyers have been representing state attorneys general and their Medicaid agencies for years fighting similar kinds of false pricing and abuses.
Beasley Allen lawyers hope to continue to lead the charge against these continued drug pricing abuses through the firm’s representation of states and their Medicaid divisions. For more information on this topic, contact our Consumer Fraud & Commercial Litigation Section lawyers Dee Miles, Alison Hawthorne or Leslie Pescia at 800-898-2034 or by email at Dee.Miles@beasleyallen.com, Alison.Hawthorne@beasleyallen.com or Leslie.Pescia@beasleyallen.com.
$187 Million Libor Settlements Approved
U.S. District Judge Naomi Reice Buchwald has approved $187 million of settlements between seven megabanks – including Deutsche Bank – and futures traders who say big banks rigged a global rate.
Investors who dealt in Eurodollars futures or options on the Chicago Mercantile Exchange are in line for a cut of the settlements in the 2011 lawsuit, which alleges that seven settling banks and others – like UBS AG and Rabobank, which have not settled – conspired to violate the Sherman Act as a group and violated the Commodity Exchange Act individually by gaming the London Interbank Offered Rate (Libor).
Joining Deutsche Bank, which is paying the most into the $187 million settlement fund with $80 million, are Citibank, Barclays, JPMorgan & Chase, Bank of America, HSBC, and Societe Generale. Judge Buchwald preliminarily approved the seven banks’ settlements in March. Judge Buchwald, in previous decisions, had dismissed both SocGen and HSBC from the case. The judge had also denied the exchange-based Plaintiffs’ class certification request. Those decisions were on appeal at the time of the settlement.
Judge Buchwald had problems with the fee request from Lovell Stewart Halebian Jacobson LLP and Kirby McInerney LLP, the terms leading the litigation on behalf of a settlement class led by trading companies including Metzler Asset Management and Atlantic Trading USA. That issue will be dealt with later before final approval.
The judge noted that the two lead firms’ requests encompass work done by 12 firms in total and bills for some 80,000 hours. The judge did approve $5.6 million of expenses for the Plaintiffs’ firms, as well as $25,000 bonus payments for named Plaintiffs including Metzler and Atlantic Trading.
Some entities have opted out of the settlement class, including Salix Capital US, the City of Philadelphia, a group of Prudential investment portfolios and Freddie Mac.
The settling Plaintiffs are represented by Lovell Stewart Halebian Jacobson LLP and Kirby McInerney LLP.
The case is In Re: Libor-Based Financial Instruments Antitrust Litigation (case number 1:11-md-02262) in the U.S. District Court for the Southern District of New York.
$122 Million Settlement For Consumers Defrauded By TD Bank’s Overdraft Service Fees
The Consumer Financial Protection Bureau (CFPB) concluded summer 2020 with a $122 million victory for more than 1.4 million clients of New Jersey-based TD Bank for its illegal overdraft fee practices, charging customers illegal fees without obtaining appropriate consent for its debit card overdraft service. The settlement for In the Matter of TD Bank NA, case number 2020-BCFP-0007 provides $97 million in restitution accompanied by a $25 million civil penalty for violations of the Electronic Fund Transfer Act (EFTA), Regulation E and Consumer Financial Protection Act of 2010 (CFPA), committed by TD Bank from January 2014 through December 2018.
CFPA recognizes bank “overdraft protections” as a convenience service, thus only allows banks to provide “overdraft protections” to customers who specifically enroll in a service authorizing their bank to cover transactions. TD Banks’ overdraft protection program, “TD Debit Card Advance” (DCA) charges $35 for each overdraft transaction paid through DCA by more than $5 and levies up to five of these charges per day to customers.
TD Bank flouted its duty to secure customers’ affirmative consent by means of various obfuscating practices: TD Bank presented the program as a “free” service feature accompanying a new checking account to lure new customers to the bank; TD Bank also enrolled new customers in the DCA without addressing the service at all, instead presenting paperwork to a customer with “enrolled” option pre-checked, or without requesting the customer’s oral enrollment decision; “deliberately obscured” or “attempted to obscure” the overdraft notice to prevent a customer reviewing a pre-marked enrollment status; TD Bank enrolled some consumers in DCA over the phone, describing the DCA as covering transactions not likely to be covered by DCA; in other instances, TD Bank materially interfered with customer’s ability to understand DCA’s terms and conditions.
In addition, TD Bank violated the Fair Credit Reporting Act (FCRA) and Regulation V by failing to implement “reasonable written policies and procedures” to ensure the accuracy of information sent to consumer reporting agencies and failed to conduct timely investigations of indirect consumer disputes concerning its furnishing to one of those agencies.
The settlement agreement includes exigency that TD Bank “correct” its DCA enrollment practices by obtaining customer consent, stopping use of the pre-marked overdraft notices, and adopting policies and procedures that ensure compliance with laws concerning consumer reporting agencies. Although TD Bank agreed to settle the case, it refused to admit any wrongdoing and will continue to offer the DCA overdraft service, stating that it is “valued by customers and helps them avoid declined transactions due to insufficient funds.”
The dispute between TD Bank and the CFPB follows a similar disagreement filed in January of this year between the bureau and Citizens Bank where the CFPB accused the Rhode Island-based bank of a series of failures in relation to credit card disputes. Specifically, Citizens “automatically denied consumers’ billing error notices and claims of unauthorized use in certain circumstances” and “failed to fully refund finance charges and fees when consumers asserted meritorious disputes or fraud claims”. https://files.consumerfinance.gov/f/documents/cfpb_citizens-bank_complaint_2020-01.pdf
U.S. banks like T.D Bank and Citizen collect billions in finance charges and fees from their customers per year, thriving on consumers’ inadequate understanding of their services. Every customer suffers when a bank acts to fraudulently gain, and still bank finance charges and fee collections target the most vulnerable customers who can least afford to pay them. When we are all already enduring the financial strain consequent to a pandemic outside of our control and when every penny especially counts, pursuing actions on behalf of the consumer against all fraudulent actors and practices is imperative.
If you have any questions, contact Lauren Miles, a lawyer in our Consumer Fraud and Commercial Litigation Section, at 800-898-2034 or by email at Lauren.Miles@beasleyallen.com.
PREMISES LIABILITY LITIGATION
Troubled Apartment Complexes Are A Threat To Our Communities
Beasley Allen lawyers are handling a variety of significant negligent security cases, including multiple shooting cases in Georgia. Many of these cases involve apartment complexes, where security at the complexes has deteriorated to the point where residents live in constant fear of violence. Worse, the violence is spilling over from the complexes to neighboring locations, including strip malls, gas stations and parking lots.
Apartment complexes should be some of the safest locations in our communities, but they present some of the best opportunities for criminals if a complex owner or occupier fails to adequately secure them. Think of an apartment complex as a home safe. If the home safe is properly secured and reinforced, a criminal cannot break into it and steal what’s inside. In fact, with only a limited amount of time to complete a theft, a criminal could be caught before he or she is able to compromise the safe. On the other side of the spectrum, a safe can be the most important discovery a criminal makes in a home because a safe normally contains all of a person’s most valuable possessions, albeit all in one place.
Apartment complexes are much like a home safe but on a larger scale. They should be secured with proper lighting, onsite security staff, a robust neighborhood watch program, good policies and procedures, and proper maintenance. If the complex takes these measures, a criminal will have little to no opportunity of a successful heist, and the more likely scenario is they will be caught – which will cause the criminal to choose another location instead. On the flip side, if the complex is poorly maintained or secured, then the opportunities are limitless for a criminal. Essentially, complexes are small homes stacked together, which means just like a home safe, they will have all of a person’s prized possessions confined to one place. Without proper lighting, maintenance, or onsite security, the buildings in a complex (coupled with the vegetation existing there) provide plenty of cover for a criminal to gain access, remain on the property, target residents, conduct a crime and then escape without being seen.
We also are finding that the owners of the most troubled complexes do not actually reside in the same state as the complexes they own or oversee. Instead, they are oftentimes far removed from their residents’ suffering, and they are more concerned with collecting rents and subsidies than about safety. They are further oblivious to the costs and risks local law enforcement endures when they are called out to resolve an active shooting event in a complex.
Just like the civil justice system has served to improve the safety of cars and other consumer products over time, the civil justice system is essential to ensuring our communities are safe. Property owners should take reasonable measures to ensure their properties do not become a haven for crime and victimization.
Most apartment complex owners try to do the right thing, but some owners and occupiers couldn’t care less about their residents. In these circumstances, it is not just the residents that suffer – the entire community does, whether through the loss of life, property values, or the impact to surrounding businesses.
If the system fails to hold these owners accountable, the taxpayers are forced to pick up the tab when a child’s parents are killed, or when law enforcement is called to respond. Considering how poor Alabama’s laws are on this subject, it is no surprise that many apartment complexes in the state are some of the most violent in the nation with no hope of being made safe.
Parker Miller and Donovan Potter, lawyers in our Atlanta Office, are actively working on cases where people are severely injured or killed in apartment complexes. They are passionate about improving the living conditions in our communities. If you have any questions about these cases, contact Parker at Parker.Miller@beasleyallen.com and Donovan at Donovan.Potter@beasleyallen.com. You can also reach them by phone at 800-898-2034.
Plantation Apartment Complex Sued In Sexual Assault Case
Beasley Allen has filed a lawsuit on behalf of a young mother and former tenant of Plantation Apartments who was sexually assaulted by a maintenance worker employed by the apartment complex. The apartment complex is located in Richmond Hill, Georgia, near Savannah, and is managed by co-Defendant Hallmark Management, Inc. (HMI). The Plaintiff, who has chosen to remain unnamed due to the nature of the claims, alleges the Defendants failed to keep the premises safe and that they negligently hired, trained and supervised the employee who attacked her. Donovan Potter, a lawyer in our Atlanta firm, filed the suit. He says:
Our client trusted that those charged with managing her apartment complex would keep the surroundings safe and prevent employees from abusing their ability to enter her apartment without permission and sexually assault their tenant. The defendants failed our client and, as a result, she was forced to suffer the physical pain of an assault, an invasive examination and to endure ongoing emotional trauma that changed her life and the lives of her loved ones forever.
One morning in November 2018, the maintenance employee entered the Plaintiff’s apartment under the pretext of conducting maintenance work. The Plaintiff had not requested any maintenance and told the man to leave. Instead, he refused and “falsely imprisoned and restrained Plaintiff and then proceeded to sexually assault her.”
The Defendants owed a duty to the young mother and all other apartment tenants to properly ensure their safety, maintain the premises in a reasonably safe condition and warn them of dangers such as the employee’s unsafe behavior. Yet, they failed in each of those responsibilities.
The complaint alleges that the Defendants negligently hired the employee and also failed to adequately train, monitor, instruct, and supervise him. Further, the Defendants failed to ensure that there were procedural safeguards, policies, rules and/or guidelines in place for their employees to follow to prevent incidents such as this incident to happen. Without these safety measures in place, the Defendants specifically failed to train and supervise the employee to ensure that he complied with the safety measures. Finally, the complaint explains that “the [d]efendants’ conduct was negligent, reckless and/or intentional, was extreme and outrageous and was a cause…of Plaintiff’s injuries and damages.” Donovan added:
Our client knows that we cannot go back and magically change what happened to her. However, she is seeking justice as well as accountability. She hopes that this lawsuit will serve as a reminder to the defendants and other apartment complex owners that they will be held responsible for failing to protect their tenants.
The case was filed in the State Court for Cobb County, Georgia. (Case number 20-A-3290).
Beasley Allen Files Suit Over Worker Injury Resulting In Amputation
Kendall Dunson, a lawyer in our firm’s Personal Injury & Products Liability Section, filed a lawsuit last month on behalf of Markus Williams against G.A. Braun Inc., the manufacturer of a defective conveyor, and Paramount Services, his employer at the time of the injury. When filing the suit, Kendall had this to say:
Mr. Williams was simply doing his job, working to support his family, and because of the defendants’ negligence, he was injured to the point of permanent impairment. He not only will suffer from this impairment for the rest of his life, his ability to work has been significantly diminished.
On Jan. 29, 2020, Williams was performing his assigned duties operating the subject conveyor. His right arm got trapped in an in-running nip point of the conveyor. The result of the injury required inpatient hospital care, including amputation of Williams’ arm below his elbow. He continues to receive medical care and will require ongoing care for the remainder of his life. The injury permanently disfigured and physically and vocationally impaired Williams – leaving him unable to perform some of his normal activities and limiting his ability to work.
The lawsuit alleges that Braun designed a defective conveyor by failing to incorporate adequate safety devices and/or procedures to better protect those using the conveyor as intended. The lawsuit also states that Braun failed to train, direct, and warn users of the harm associated with the equipment. Additionally, Paramount failed to maintain a safe working environment and failed to maintain the safety devices designed to prevent the type of injury Williams suffered.
Paramount also failed to report the incident to the Occupational Safety and Health Administration (OSHA). Federal law requires employers to report all workplace injuries that require inpatient hospitalization and/or amputation within 24 hours of the incident.
When Kendall, on behalf of Mr. Williams, contacted OSHA, the agency explained that it was prevented from investigating because the incident was not reported within six months of occurrence, a limitation established by law.
When Kendall learned about this regulatory limitation, he expressed his disappointment and concern to federal regulators, letting them know this could incentivize employers that fail to adequately protect their employees to also conceal their bad behavior. OSHA’s inability to punish an employer for failing to provide notice of a reportable incident is a gap that should be closed with a stiff penalty. Beasley Allen lawyers are thankful for OSHA and what it does to help workers in this country. We will advocate for an improved policy that will allow federal regulators more oversight authority.
In addition to our firm, Plaintiff Williams is also represented by Anthony Ifediba, of the Ifediba Law Group, P.C. in Birmingham, Alabama. We look forward to working with Attorney Ifediba to obtain justice for Mr. Williams.
The case is filed in the Circuit Court of Jefferson County, Alabama (case number 01-CV-2020-90308.01).
On-The-Job Safety: The Meat Processing Industry
The meat processing industry is an extremely hazardous occupation and one of the more common locations of on-the-job injuries we see. In the mid-1980s, the poultry processing industry put an emphasis on reducing work-related musculoskeletal disorders. Musculoskeletal disorders include injuries to nerves, tendons, muscles, and supporting structures of the hands, arms, neck and back.
Despite this emphasis on reducing musculoskeletal injuries in the meat packing setting, the incidence rate of occupational injuries reported in the industry has remained high. In fact, when examined in 2011 and 2012, the meat packing industry accounted for more than five times as many musculoskeletal injuries as the average U.S. industry.
The rate in poultry plants of carpel tunnel syndrome was more than three times the national average in 2011 and seven times the national average in 2012. Despite these elevated numbers, it is likely that the true number is even higher.
Studies suggest that the Labor Department’s data is likely skewed due to the large number of foreign-born meat processing workers and their reluctance to report workplace injuries due to fear of retaliation or deportation. It is estimated that nearly 30% of meat processing workers are foreign-born. Information collected by the Southern Poverty Law Center suggests that two thirds of chicken processing employees will suffer significant work-related injuries.
Recently, the Trump administration cleared the way for chicken processors to increase processing line speeds. Line speeds were capped at 140 birds per minute; however, the National Chicken Council recently lobbied and petitioned the Food Safety and Inspection Service to increase the line speeds to 175 birds per minute. In January of 2018, the U.S. Department of Agriculture (USDA) announced that chicken processors could apply for waivers to increase the line speed from 140 birds per minute to 175. Higher line speeds are cause for concern. The increase in line speeds applies to the automated portion of the slaughter process, called the evisceration line. Although the poultry industry contends the increase in line speed will not have an effect on worker safety, the data suggests otherwise.
At the 140 bird per minute line speed, workers perform the same repetitive motions 20,000 to 30,000 times per daily shift. Often that repetitive motion requires workers to use knives to debone portions of the chicken. This increase will undoubtedly result in more injuries due to cuts, but also increases the risk of the employees developing carpal tunnel.
Unfortunately, the increase in poultry processing line speeds likely opens the door for other meat processing industries to experience similar increases. The Trump administration likely will relieve similar line speed restrictions amongst the pork processing industry as well. The USDA has proposed lifting caps on hog processing speeds which are currently capped at 1,100 hogs an hour. These changes are directly related to worker safety and will subject employees to more hazards. The meat processing industry is already an extremely hazardous occupation. More measures should be taken to ensure safe work environments. However, the Trump administration clearly values profits over worker safety.
The Occupational Safety and Health Admiration (OSHA) has taken an active role in trying to reduce musculoskeletal injuries in the meat processing industry. On top of the countless code sections employers must follow to promote worker safety, OSHA has also written extensively on various best practices for the industry. OSHA encourages all meat processors to actively work to reduce injuries by implementing plans following their best practices guidelines. These measures include providing proper training to all employees, from management positions, engineers and safety directors all the way down to laborers.
OSHA encourages employers to identify problems and risk factors and develop goals and plans to mitigate those hazards. Finally, OSHA also encourages employers to monitor injuries and implement changes where needed to decrease injuries. Despite OSHA’s continued efforts, it is likely that the Trump administration’s actions to increase production will increase the overall numbers of injuries in the meat processing sector.
If you have questions, contact Evan Allen, a lawyer in our firm’s Personal Injury & Products Liability Section, at 800-898-2034 or by email at Evan.Allen@beasleyallen.com. Evan handles workplace injury and death cases for the firm.
Sources: OSHA.gov and civileats.com
Class Action Litigation
Blue Cross Blue Shield Customers Reach A Tentative Settlement Of $2.7 Billion; Hospitals And Doctors Claims Continue In Class Action Litigation
The Blue Cross Blue Shield insurance group has reached a tentative settlement in an antitrust lawsuit filed on behalf of customers that would require a payout of about $2.7 billion, the Wall Street Journal reported on Sept 24.
Plan subscribers and health care providers allege that the Blue Cross and Blue Shield member plans have agreed not to compete with one another, which violates the Sherman Antitrust Act and other state antitrust laws. The lawsuits were first filed about eight years ago.
Per the Wall Street Journal, the Blue Cross Blue Shield Association has signed off on the settlement, but it has not been approved by the boards of its 36 member insurers, including Anthem Inc, according to the people familiar with the matter.
In addition, the settlement has yet to receive approval from U.S. District Judge R. David Proctor in Birmingham, Alabama, who is presiding over both the subscriber (customers) case and the prescriber (hospitals, physicians and other health care providers) case.
Again, even if a settlement is finalized, Blue Cross Blue Shield health insurers still face an even larger parallel antitrust suit filed on behalf of health care providers, which alleges that the insurers illegally pushed down the payments they receive for medical services as a result of their market dominance. The providers’ case continues to move forward.
Our firm is fortunate and honored to be a part of the provider lawsuit litigation team and we are working hard to move this case toward class certification and trial. It is a monumental case with extremely important ramifications and much needed change as the goal. No company should be allowed to dominate the medical service market in such a way as to oppress medical providers the opportunity to be paid a fair and reasonable rate for their services. We hope to rectify this problem with this litigation and eliminate any market misconduct.
We will continue to keep our readers posted on any further developments regarding this case.
GM Initially Dodges Oil Consumption Defect Suit In Washington State Class Case
A Washington federal judge has temporarily dismissed a proposed class action alleging General Motors’ Chevrolet Silverado trucks use too much oil, finding the driver didn’t rely on GM advertising when he acquired his truck in a separation agreement from a former employer. However, the court asked the Plaintiffs to amend their complaint to satisfy certain criteria in the alleged statutory violations. Plaintiffs are amending.
U.S. District Judge Thomas S. Zilly initially said that to state a claim under the Washington Consumer Protection Act, Kelly Harris must allege he relied on deceptive advertising but failed to claim he depended on any particular GM statement or advertisement. His conclusory allegations that GM, in general, misrepresented the quality of its trucks in its marketing don’t pass muster under the Federal Rules of Civil Procedure, the judge said. A slight amendment will cure this defect and is in the process of being filed.
The judge initially sided with GM’s argument that Harris’ fraudulent concealment claim is prevented by Washington’s Product Liability Act, which excludes claims based on fraud or those seeking economic damages. “Harris’ fraudulent concealment claim attempts to force a square peg into a round hole. While Harris characterizes GM’s concealment of the oil consumption defect as fraud, the heart of Harris’ claims arises out of tort, not contract,” the judge said. “Harris’ claims relate to exposure to a dangerous product condition that poses an unreasonable risk of harm.” Again, this can be cured with an amendment and has already been accepted by a similar California court with the identical claims. In fact, the California court has certified those identical claims for class treatment based on other state laws. Washington’s laws require a bit more on pleading and are being amended.
Harris claimed he owned a used 2012 Chevrolet Silverado that he obtained that year from an ex-employer, according to the order. He started experiencing engine problems like fouled spark plugs soon after, the order said.
In 2015, Harris became aware that oil consumption issues were the root of his problems with the vehicle, the judge said. Harris claimed the main cause of the alleged excessive oil consumption is that the piston rings don’t retain enough retention to prevent oil from being consumed in the combustion chamber, which then dirties spark plugs, according to the order.
Harris argued the alleged defect posed a safety risk in that it could cause the engine to catch fire or cause an accident and that he never would have bought or leased the vehicle if the defect were disclosed, according to the order.
As co-lead counsel Dee Miles from our firm put it:
We are amending the complaint, as the judge instructed, and we are confident this case will proceed forward like the nearly identical class case that has already been certified in three bellwether states in California.
In addition to our firm’s lawyers Dee Miles, Clay Barnett and Mitch Williams , Kim D. Stephens of Tousley Brain Stephens PLLC; and Adam J. Levitt, John E. Tangren and Daniel R. Ferri of DiCello Levitt Gutzler LLC are working with us on this one class case and 12 others that are filed throughout the country.
GM Can’t Decertify Class Claiming Engine Defect Sparks Fires
A California federal judge on Sept 2 rejected General Motors LLC’s bid to decertify a class of car owners who allege a GM engine defect causes vehicles to shut down and potentially catch fire unexpectedly, saying the class is allowed to replace its lead representative even after certification.
U.S. District Judge Edward M. Chen said it became “pretty apparent” that class counsel would have to replace the court-appointed class representative Raul Siqueiros with another Plaintiff after the judge narrowed the class definition in the spring and excluded Siqueiros’ vehicle. Judge Chen pointed out that the class counsel filed a motion to substitute shortly after, about two months later.
A hearing was held on the Plaintiffs’ motion to substitute class representatives and GM’s motion to decertify class. The motions are the latest development in a December 2016 class action alleging the Detroit, Michigan-based automaker’s Generation IV Vortec 5300 engine used in many of its popular 2010 to 2014 model-year vehicles contains five internal defects that cause the engine to consume high amounts of oil and could lead to safety risks. Some of those alleged risks include the engine shutting off while on the road and catching fire.
Since the initial complaint was filed, the vehicle owners amended their complaint multiple times, and Judge Chen dismissed some claims from the suit. The judge has kept alive nationwide claims under the federal Magnuson-Moss Warranty Act and state claims under California’s Consumer Legal Remedies Act, the Song-Beverly Consumer Warranty Act and the Unfair Competition Law. He also allowed to proceed state consumer protection claims and breach of implied warranty of merchantability under Texas and North Carolina statutes, and a fraudulent omission claim under North Carolina statute.
In April, the judge certified classes of California, North Carolina and Texas vehicle owners, who serve as bellwethers for the purpose of class certification. The classes cover owners of Chevrolet’s Avalanche, Silverado, Suburban and Tahoe, and GMC’s Sierra, Yukons and Yukon XL vehicles from model years 2011 to 2014 with Generation IV Vortec 5300 engines, according to the order.
GM argued that the California class must be decertified because the class representative doesn’t have standing to represent the class. But the judge rejected the argument and gave class counsel a chance to find replacements.
GM also asked the judge to dismiss individual claims under the Magnuson-Moss Warranty Act that haven’t been certified for good, but class counsel argued that it would be “pretty absurd on its face” if Congress had meant that those Plaintiffs would be barred from asserting their individual claims if their class claims were struck.
The class is represented by our firm’s Consumer Fraud section lawyers Dee Miles, Clay Barnett and Mitch Williams and we are working with Adam Levitt, John Tangren and Daniel Ferri of DiCello Levitt Gutzler LLC. In Chicago, Illinois, and local counsel Jenny Anderson of Andrus and Anderson in San Francisco, California. The case name is Monteville Sloan Jr. et al. v. General Motors LLC, (case number 3:16-cv-07244), in the U.S. District Court for the Northern District of California.
VW Ramps Up Bid To Undo 9th Circuit Anti-Tampering Ruling
Our firm is representing Hillsborough County, Florida (Tampa Bay Region) in a case against Volkswagen (VW). VW has asked the Ninth Circuit to hold off on allowing two counties, our case and Salt Lake City County, Utah, to restart litigation claiming the automaker’s use of emissions-cheating devices violated anti-tampering laws, saying it wants the U.S. Supreme Court to resolve conflicting rulings on the preemptive scope of the Clean Air Act.
VW wants to hit pause on the two counties’ litigation so that it can promptly petition the nation’s high court to smooth out dueling Ninth Circuit and state appellate court decisions concerning the preemptive scope of the CAA. At stake is a world of regulatory chaos and potentially billions in pile-on penalties for automakers, VW says. The Ninth Circuit has essentially freed state and local governments to regulate changes to vehicles as soon as they leave a dealership’s lot. VW claims that flies in the face of the EPA’s exclusive authority to oversee how manufacturers carry out modelwide, in-use changes and software updates to cars to improve performance and emissions. The counties contend they have the right to regulate those vehicles after they leave the lot by virtue of their own lawful county ordinances.
VW is hoping the Supreme Court will grant certiorari to smooth out conflicting court rulings on the preemption question. The Ninth Circuit ruling veers from several state courts, including Alabama, Illinois, Missouri, Minnesota and Tennessee, which have sided with VW on the CAA preemption argument. Those earlier wins for VW had reinforced the federal government’s authority to regulate motor vehicle and emissions standards. But some courts haven’t bought into VW CAA preemption defense.
The lawsuits all stem from the Environmental Protection Agency (EPA)’s investigation into VW’s 2015 admission that it rigged more than 500,000 “clean diesel” vehicles in the U.S. with emissions-cheating software known as defeat devices. VW has accused the states and counties of “piggybacking” on the federal probe to demand pile-on penalties for conduct that the EPA already redressed nationwide. Even the Ninth Circuit panel acknowledged that its decision heightened VW’s legal exposure, including potentially “staggering” and “unexpected and enormous liability.” According to VW’s petition, the two counties seek penalties of up to $11.2 billion annually.
Salt Lake County and Hillsborough County have argued throughout the litigation that VW was caught red-handed selling cars to unwitting consumers on the false promise of clean fuel and clear air, and now claims “it has atoned and has been sufficiently chastened.” “Volkswagen now asks the court to hold, in effect, that it is too big to be held fully accountable, that it can only be regulated by the federal government, at the national level, and can be held to account no more,” the counties have said in their Ninth Circuit briefs.
In enacting the CAA, Congress never said that it intended for only the EPA to regulate “modelwide” changes to in-use vehicles, they said. “Congress based preemption on the nature of the vehicle (‘new’ versus ‘registered or licensed’), not on the identity of the violator (‘manufacturer’ versus ‘owner’) or the scope of the violation (‘modelwide’ versus a few dozen vehicles),” the counties said. VW’s view of the CAA would mean that the EPA can penalize everyone, but the counties can only penalize local dealers, garage owners, and car owners, and foreign businesses are treated better and entitled to more protection than local businesses, according to the counties’ January 2019 brief.
Ultimately, manufacturers shouldn’t be given “perverse incentive to systematically violate the law” with the notion that the greater the misconduct, the less likely the manufacturer will be subject to state and local laws and enforcement actions, the counties said.
Dee Miles, our Consumer Fraud & Commercial Litigation Section Head and the lead lawyer for Hillsborough County, said that the county opposes VW’s motion. He “firmly believes the Ninth Circuit correctly ruled that the county has the right to proceed with its claims against VW for tampering with emissions-control standards of post-sale vehicles.” Dee is confident the U.S. Supreme Court will agree with the Ninth Circuit’s ruling and the that Ninth Circuit court should deny VW’s request, as should the Supreme Court on VW’s certiorari petition.
Colin P. King of Dewsnup King Olsen Worel Havas Mortensen, a lawyer for Salt Lake County, is also confident the Supreme Court will deny a certiorari petition in this case. He says:
For one thing, we think the Ninth Circuit sees this as something that is not opening the tsunami flood gates…This is a very unusual exception. There aren’t other cases like this pending, and there are zero other federal appellate decisions and federal district court decisions that are contrary to this.
In addition to exaggerating the impact of the various court rulings, King said VW is “overhyping the potential regulatory chaos” that could come from the Ninth Circuit decision. He added:
That’s just not going to pass muster for the Supreme Court to see it as important enough .., for it to get involved. We predict the Supreme Court will deny certiorari because of the lack of really an authentic split of authority among the federal circuits.
The counties are also represented on these appeals by Peter K. Stris of Stris & Maher LLP.
Mercedes-Benz To Pay $700 Million In Emissions Fraud Deal
Mercedes-Benz USA LLC and its German parent Daimler AG have agreed to pay an estimated $700 million to resolve a class suit by drivers who say the automaker sold them diesel vehicles with emissions-cheating software made by Robert Bosch GmbH.
The drivers asked U.S. District Judge Kevin McNulty in New Jersey federal court to give initial approval to the settlement, which would see current owners and lessees of affected vehicles get payouts of $3,290 or more and former owners and lessees get $822.50. The motion for approval notes that further payouts could be possible in certain circumstances. The drivers said:
Given that there are an estimated 250,000 subject vehicles, the money benefits of the settlement likely exceed $700 million. And class members preserve their legal rights to continue seeking additional recovery from the Bosch defendants.
Additionally, the drivers said Mercedes-Benz had agreed to separately pay $80.2 million in attorney fees and $3.2 million in expenses, plus class service awards. The proposed settlement is tied to a $1.5 billion agreement with the California Air Resources Board, the U.S. Department of Justice’s Environmental Division and U.S. Customs and Border Protection, which Mercedes and Daimler unveiled in August.
The settlement approval request says:
a consent decree will be filed in D.C. federal court that “will resolve regulatory claims against Mercedes and set a schedule for the implementation of an approved emissions modification (‘AEM’) to the subject vehicles that will modify the emission control system software calibration and certain related hardware to ensure that the vehicles meet the emissions standards to which they were originally certified.
If the AEM causes reduced performance in the vehicles covered by the proposed settlement, customers could receive additional payouts, according to the approval request. The driver Plaintiffs allege Mercedes-Benz misled consumers into buying BlueTec diesel vehicles that they ended up paying a premium for – not knowing the vehicles were rigged to keep emissions within legal limits to fool regulators’ tests but allowed for emission spikes when the cars were driven normally. The automaker was sued in 2016 following a similar scandal over fellow German carmaker Volkswagen’s use of defeat device software to bypass emissions standards.
Bosch, the German auto parts giant accused of aiding both VW and Mercedes-Benz in their alleged emissions cheating, attempted to escape the New Jersey case earlier this year.
However, Judge McNulty allowed racketeering and state-based claims to move forward against Robert Bosch GmbH. An earlier order in the case forced Mercedes, Daimler and Bosch GmbH unit Bosch LLC to defend the allegations. Judge McNulty said there was no reason to allow the Bosch parent to avoid the lawsuit.
The drivers are represented by James E. Cecchi of Carella Byrne Cecchi Olstein Brody & Agnello PC; Steve W. Berman, Andrew M. Volk, Shelby R. Smith and Sean R. Matt of Hagens Berman Sobol Shapiro LLP; and Christopher A. Seeger and Jennifer R. Scullion of Seeger Weiss LLP.
The case is In re: Mercedes-Benz Emissions Litigation (case number 2:16-cv-00881) in the U.S. District Court for the District of New Jersey.
$60 Million Settlement Approved In Sunglasses Deceptive Warranty Suits
A Florida federal judge on Sept. 3 gave initial approval to a $60 million settlement ending class claims alleging Costa Sunglasses illegally charges fees for warranty claims and deceives consumers about charges for fixing broken sunglasses. U.S. District Judge Timothy J. Corrigan signed off on the settlement, in which Costa del Mar Inc. has agreed to set up a $40 million fund for vouchers that class members will be able to redeem for products on the Florida-based sunglasses maker’s website.
Costa has also said it will cover all shipping and handling expenses for these products, for a value of about $21 million to the class. Judge Corrigan said that at this stage, it “appears likely that this court will be able to: approve the proposed settlement as fair, adequate and reasonable under Rule 23(e)(2); and certify the class for purposes of judgment on the proposed settlement.”
Judge Corrigan certified four separate classes of consumers:
- a Florida purchase class of consumers who bought Costa sunglasses from July 28, 2013, to Jan. 31, 2018;
- a Florida repair class consisting of people who bought Costa sunglasses before Jan. 1, 2018, and
- were charged a fee to repair or replace their sunglasses;
- a nationwide repair class of consumers who bought Costa sunglasses before Jan. 1, 2018, and were charged a repair fee; and
- a warranty class of consumers who bought Costa sunglasses before Jan. 1, 2016, and paid a warranty fee to repair their sunglasses.
The settlement brings an end to three putative class suits filed in federal and state courts in Jacksonville, Florida, over Costa’s warranty and repair practices. In the suits, consumers claim the sunglasses maker deceptively says it will fix broken sunglasses for a “nominal” fee that is actually close to two-thirds the cost of the sunglasses. Evidence and testimony presented in the state court case – which was certified as a class by a trial judge – showed that Costa maintained a list of internal repair charges that ranged from $49 to $89, but customers would only learn about the repair charges once they had paid $9.95 to ship their broken sunglasses to Costa for evaluation.
A federal suit filed by lead Plaintiff Gerald Reed made similar allegations on a nationwide basis. The third suit, led by Plaintiff Troy Smith, claims Costa illegally charged an $11.95 fee to take advantage of the lifetime warranty touted by the company. This is a violation of the Magnuson-Moss Warranty Act, which requires companies promising lifetime warranties to fix products free of charge.
Under the terms of the settlement, class members who submit a valid and timely claim will receive a product voucher good for two years that can be redeemed on Costa’s website. Members of the Florida and nationwide repair classes will get vouchers worth $19.99, while the Florida purchase class will receive $10 vouchers and the warranty class will receive $8.99 vouchers, according to the settlement. Costa also agreed to modify its product packaging and marketing materials to not claim its warranty is a “lifetime warranty” and to stop describing fees for repairs as “nominal.” The class counsel is requesting an award of 30% of the total settlement fund.
The class is represented by Peter P. Hargitai, Joshua H. Roberts, Laura B. Renstrom and Michael M. Gropper of Holland & Knight LLP. The consolidated case is Smith et al. v. Costa Del Mar Inc. (case number 3:18-cv-01011) in the U.S. District Court for the Middle District of Florida.
Actavis $19 Million Settlement In ADHD Drug Antitrust Suit Gets Initial Approval
U.S. District Judge Allison D. Burroughs, a Massachusetts federal judge, has given her initial approval of a $19.9 million settlement deal between pharmaceutical company Actavis and the direct purchaser class in a lawsuit that accused the company, along with fellow pharma company Shire, of conspiring to delay sales of a generic version of the attention deficit hyperactivity disorder (ADHD) medication Intuniv.
In the order, Judge Burroughs gave a preliminary greenlight for Actavis to pay $19.9 million to the class of direct purchasers in exchange for the class permanently dismissing the lawsuit against the pharmaceutical company.
The approval stayed all proceedings in litigation between the class and Actavis until a fairness hearing in early December, where the settlement agreement would undergo “further consideration” for its final approval.
Judge Burroughs’ order comes after Actavis’ lawyers notified the court in mid-August that it had reached a settlement with the direct purchaser class – although they noted that separate claims from a group of indirect purchasers remained unresolved, as the indirect purchasers’ appeal to the First Circuit against the denial of its class certification was still pending. They also said the direct purchaser class’ claims against Shire had not been resolved.
In her order, Judge Burroughs confirmed that the $19.9 million settlement agreement did not include Shire, and that litigation against the company would proceed. Direct and indirect purchasers of Intuniv claimed a generic option of the ADHD drug was delayed because of a settlement Actavis reached with Shire. The U.S. Food and Drug Administration (FDA) gave Actavis approval to launch the generic in October 2012, but an Intuniv generic did not come to market until December 2014.
Under the alleged agreement, Shire would not launch its Intuniv generic during Actavis’ 180-day generic exclusivity period once it launched its own generic. In exchange, Actavis agreed to delay its generic launch and give Shire 25% of its profits earned during its exclusivity period – which the purchasers claim is an illegal reverse payment.
In June, Midwest pharmacy chain Meijer Inc. told the court it was prepared to step in as head of the direct purchaser class if the bankruptcy of wholesaler Rochester Drug Co-Operative rendered it unable to lead the drug buyers in the case.
Judge Burroughs disqualified Rochester to lead the direct purchasers about a month later, after she found the company’s separate Chapter 11 bankruptcy filing, where Actavis and Shire were listed as creditors, created a clear conflict of interest.
The direct purchasers are represented by Hagens Berman Sobol Shapiro LLP, Faruqi & Faruqi LLP, Berger Montague, Radice Law Firm, Nussbaum Law Group PC, Kessler Topaz Meltzer & Check LLP, Cohen Milstein Sellers & Toll PLLC and Sperling & Slater PC. The case is FWK Holdings LLC v. Shire PLC et al. (Direct Purchaser Antitrust Class Action Complaint), (case number 1:16-cv-12653) in the U.S. District Court for the District of Massachusetts.
11th Circuit Says Class Representatives Can’t Get Incentive Awards
The Court of Appeals for the Eleventh Circuit, in an opinion on Sept. 17, said a Florida federal judge made several errors that “have become commonplace in everyday class-action practice” when approving a $1.4 million settlement and $6,000 incentive payment for the lead Plaintiff in a robocall suit, finding that U.S. Supreme Court precedent prohibits such routine incentive awards.
Jenna Dickenson, who was the lone objector to the settlement that resolved a proposed class action accusing medical debt collector NPAS Solutions LLC of violating the Telephone Consumer Protection Act (TCPA), brought her challenge to the Eleventh Circuit after U.S. District Judge Robin L. Rosenberg granted final approval to the settlement in May 2018.
Dickenson argued that the settlement amount should have been higher, that class counsel should not be permitted to recover 30% of the settlement fund and that class representative Charles Johnson shouldn’t get a $6,000 incentive award.
The Eleventh Circuit panel held that the district court had erred in awarding Johnson for his role in the litigation, in setting a deadline for class members to file objections that fell more than two weeks before class counsel had filed their fee petition and in offering only “rote, boilerplate pronouncements” in its order granting final approval to the proposed settlement and class counsel’s fee request.
Michael L. Greenwald of Greenwald Davidson Radbil PLLC, who represents lead Plaintiff Johnson, told Law360 that he intends to seek en banc review from the full Eleventh Circuit, saying his client disagrees with the majority’s opinion decision to strike down the incentive award. Greenwald said:
Incentive awards – when reasonable – are widely accepted as a means to recognize the effort it takes for consumers to bring class actions, the scrutiny and discovery to which they are subjected, and the ultimate benefits they obtain for others. While class representatives necessarily put others before themselves when they bring a class action, this ruling, should it stand, could chill consumers’ desire to bring meritorious cases against well-heeled corporations – cases that can take years to prosecute.
The contested settlement arose from claims made by Johnson in 2017, when he filed a putative class action challenging NPAS Solutions’ alleged practice of using an autodialer to call numbers that had originally belonged to consenting debtors but had since been reassigned to new owners who hadn’t given the company permission to contact them.
Less than eight months after the suit was filed, the parties reached their $1.4 million settlement, which covered 9,543 class members who subsequently submitted claims for recovery. No class member opted out, and Dickenson provided the only objection.
In a portion of its ruling that only two judges joined, the Eleventh Circuit agreed with Dickenson that the district court’s approval of Johnson’s $6,000 incentive award should be thrown out. The majority held that such awards were prohibited by a pair of Supreme Court rulings from the 1880s, Trustees v. Greenough and Central Railroad & Banking Co. v. Pettus. Judge Newsom wrote:
Although it’s true that such awards are commonplace in modern class-action litigation, that doesn’t make them lawful, and it doesn’t free us to ignore Supreme Court precedent forbidding them. If the Supreme Court wants to overrule Greenough and Pettus, that’s its prerogative. Likewise, if either the Rules Committee or Congress doesn’t like the result we’ve reached, they are free to amend Rule 23 or to provide for incentive awards by statute. But as matters stand now, we find ourselves constrained to reverse the district court’s approval of Johnson’s $6,000 award.
The circuit judges remanded the case “so that the district court can adequately explain its fee award to class counsel, its denial of Dickenson’s objections and its approval of the settlement.”
In her partial dissent, U.S. Circuit Judge Beverly B. Martin wrote that she disagreed with her colleague’s decision to take the incentive award away from Johnson. Judge Martin wrote:
In reversing this incentive award, the majority takes a step that no other court has taken to do away with the incentive for people to bring class actions. The majority’s decision goes too far in deciding this issue and goes against the circuit’s binding precedent that recognizes a monetary award to a named plaintiff is not categorically improper.
Judge Martin noted that, in addition to spending time and money, class representatives must endure “all the slings and arrows that accompany present day litigation” in order for the class action system to operate. The judge expressed concern that by prohibiting named Plaintiffs from receiving “routine” incentive awards, “the majority opinion will have the practical effect of requiring named Plaintiffs to incur costs well beyond any benefits they receive from their role in leading the class.”
We will keep our readers posted on any new developments occurring in this important case. This 11th Circuit’s opinion was both unexpected and shocking and it has drawn lots of attention. It’s likely that an en banc (full court review) will take place – stay tuned!
The case is Jenna Dickenson v. NPAS Solutions LLC (case number 18-12344) in the U.S. Court of Appeals for the Eleventh Circuit.
THE CONSUMER CORNER
Holding A Franchisor Liable To The Tortious Acts Of A Franchisee
When a client comes to your office regarding a personal injury matter, there are many facts to uncover. One ever present set of facts is determining all of the parties to name in the lawsuit. When the tortious conduct that caused the injury occurred at a business this can become tricky. You may decide that the franchisor is a party that is liable and at the very least, can be of assistance throughout discovery. (One way by ensuring honest and complete discovery is produced by the franchisee).
As the suit progresses, counsel for the franchisor will more likely than not assert, “Defendant is the franchisor and is not responsible for the daily operations of franchisee… Franchisor just maintains identity…request is better suited for franchisee.”
Do not fall for the trap and release the franchisor at this time. This assertion does not matter. What matters is the actual agreements, and the conduct undertaken between the franchisor and franchisee. The law is generally favorable to the franchisor; however, you can hold the franchisor liable by establishing direct negligence or showing an agency relationship. The franchisor might violate an internal policy thereby establishing direct negligence.
In the absence of direct negligence, establish agency. This is done by establishing that the franchisor has the right to control the time and manner of the franchisee’s daily operations. Take a 30(b)(6) deposition. In establishing the right to control, it is extremely important to read every page of operating agreements and “suggested” manuals. These documents are filled with what I will call “mandatory suggestions.” By that I mean, they are posed as suggestions but failure to comply will result in fines, suspensions, and even termination of the franchise. As such, these are not suggestions. They are control and the right to do so.
The deponent is likely well versed in deflecting the questions that you might ask to establish the right to control. It is important that you confirm early on the deposition that the deponent is the most knowledgeable person on the subject and further that they are testifying in the capacity and on the behalf of the corporation. This way, once you go into the manuals you can use the affirmative and “controlling” language to establish your franchisor liability.
One additional benefit of taking this extra step is ensuring that franchisors are knowledgeable of the pattern of often horrific behavior. They are put on notice and hopefully take measures to protect their consumers.
If you have questions on establishing franchisor liability for the tortious acts of a franchisee, contact Ben Keen, a lawyer in our firm’s Atlanta office, at 800-898-2034 or by email at Ben.Keen@beasleyallen.com.
Supplement Company’s $925 Million Loss A Wake-Up Call On Robocalls Litigaiton
A federal judge’s refusal to reduce a $925 million award against health supplement maker ViSalus, which placed nearly 2 million unsolicited robocalls, is good news for consumers.
It was pointed out by Law360 that most disputes under the Telephone Consumer Protection Act (TCPA) are either settled or dismissed before they reach the conclusion of trial phase. It should be noted that statutory damages of between $500 and $1,500 per unwanted call or text are available to successful Plaintiffs in cases under the Act.
Oregon federal Judge Michael Simon last month rejected the Defendant’s “constitutional” argument and upheld a $925 million judgment against ViSalus following a jury trial. This has to be viewed as bad news for offending companies. The result in ViSalus was the first to test the Constitution’s due process clause argument where it would protect TCPA Defendants from arbitrary exposure to damage awards that are far out of line with the harm actually caused by the underlying conduct.
Judge Simon’s ruling is seen by lawyers representing Plaintiffs as a warning to companies to take seriously their obligation to ensure they have obtained prior express written consent for calls or texts. Congress has put in place penalties under the 1991 statute for failing to do so. Frank Kerney, a lawyer with Plaintiffs firm Morgan & Morgan who regularly handles TCPA matters, but wasn’t involved in the ViSalus case, stated:
The decision sends a message to defendants that the court agrees with Congress that the TCPA’s statutory per-call penalties are appropriate and that callers need to be held accountable for their actions. ViSalus obviously knew what was at stake when it went to trial, but instead chose to roll the dice in hopes that the court would reduce the damages that the class members were entitled to. Obviously, this is a wake-up call for defendants, letting them know that that strategy is foolish.
In a statement provided to Law360 after Judge Simon issued a final judgment cementing the $925 million award last week, ViSalus asserted that, “in light of the many significant and serious legal issues in this case, there is still much to be determined … including, for example, an actual judgment amount.” “We look forward to pressing forward with our post-trial motions and appealing this case to the Ninth Circuit Court of Appeals,” ViSalus added.
A nationwide class of roughly 800,000 individuals who allegedly received prerecorded calls from ViSalus without providing their consent was certified. The jury found that ViSalus had placed more than 1.8 million illegal calls. The task of imposing statutory damages was the responsibility of Judge Simon.
Judge Simon found that ViSalus didn’t need to pay more than $500 per call for the award to be a “sufficient” deterrent. He also refused to go below the statutory minimum. He wrote in his Aug. 14 ruling that there was no reason to reduce the award “simply because ViSalus committed almost 2 million violations of the TCPA.” Judge Simon concluded:
Here, the jury found that ViSalus committed a stratospheric number of TCPA violations. It is no surprise that the TCPA’s constitutionally valid minimum penalty of $500 for each violation has catapulted ViSalus’ penalty into the mesosphere.
While the Ninth Circuit has yet to weigh in on the issue, other courts have moved to reduce such statutory damages awards for being unconstitutionally excessive.
Wakefield and the certified class are represented by Gregory S. Dovel, Simon C. Franzini and Jonas B. Jacobson of Dovel & Luner LLP; Rafey S. Balabanian, Eve-Lynn J. Rapp and Lily E. Hough of Edelson PC; and Scott F. Kocher and Stephen J. Voorhees of Forum Law Group.
The class action is Wakefield v. ViSalus Inc. (case number 3:15-cv-01857) in the U.S. District Court for the District of Oregon. The individual action is Salerno v. Credit One Bank NA (case number 1:15-cv-00516) in the U.S. District Court for the Western District of New York.
CPSC Says E-Scooter-Related Injuries Are On The Rise
The use of micromobility products, including e-scooters, hoverboards, and e-bikes, has grown in popularity in recent years. Users say they are a convenient, cost-effective and fun mode of transportation for short distances. Unfortunately, injuries and deaths associated with their use have also increased, according to a new report released Sept. 16 by the U.S. Consumer Product Safety Commission (CPSC).
Following recommended CPSC safety measures while using these modes of transportation can help reduce a consumer’s chances of ending up on a trip to the emergency room. Acting CPSC Chairman Robert Adler said:
Remember, many accidents can be prevented by simply slowing down. Always wear a helmet, be aware of your surroundings and be prepared to stop.
Let’s look at what the data shows.
- There were about 133,000 emergency room visits associated with all Micromobility products from 2017 through 2019.
- Much of the increase in emergency department (ED) visits involves e-scooters, which rose from 7,700 in 2017, to 14,500 in 2018, to 27,700 in 2019.
- A majority of hoverboard injuries seen in EDs (67%) involved children younger than 15. By contrast, 58% of injuries involving e-scooters involved people age 25 and older.
- Fractures, followed by contusions/abrasions, are the two most common diagnoses for ED-treated micromobility injuries.
- The most frequently injured body parts are the upper and lower limbs, as well as the head and the neck.
- Most of the injuries are attributed to unspecified falls. Loss of user control, collisions with other motor vehicles, and pavement issues are other notable hazards leading to the injuries.
- CPSC is aware of 41 fatalities associated with micromobility products from 2017 through 2019, though reporting is incomplete at this time.
CPSC is releasing a new Public Service Announcement (PSA) to help consumers to stay safe while riding e-scooters. It says to ride responsibly to keep yourself and others safe and to follow these CPSC safety tips.
- WEAR A HELMET. A helmet can help protect your head in falls and collisions.
- CHECK FOR DAMAGE. Before riding e-scooters, ensure that handlebars, brakes, throttle, bell, lights, tires, cables, and frame are in good condition. Damage to the e-scooter can cause you to lose control and crash.
- ALWAYS TEST THE BRAKES. Make sure you know how long it takes to stop the e-scooter so you’re prepared for an emergency stop. Stopping distance can vary significantly depending on the scooter.
- SEE AND BE SEEN. E-scooters are small, quick, and silent, making it difficult for others to spot you, especially in parking lots and structures.
- Expect vehicle drivers and pedestrians not to see you; slow down and stay aware of your surroundings.
- Use the bell/horn to alert others.
- Do not make abrupt, unpredictable movements.
- BEWARE OF OBSTACLES. E-scooters have small tires, so objects and uneven surfaces can cause them to stop suddenly, throwing you off.
- Always keep both hands on the handlebars and keep items off the handlebars.
- Slow down and lean back when you have to ride over bumps.
- Never ride under the influence of alcohol or drugs.
- Only one person per e-scooter; additional riders can increase the risk and severity of collisions.
- NO MUSIC WHILE RIDING. Listening to music while riding is distracting and prevents you from hearing your environment. For example, you could end up crashing into a bicyclist trying to pass you.
- DO NOT PERFORM STUNTS. Jumps and bumps can damage the e-scooter and make it unstable. This can pose a risk not only to yourself but also to people around you and to the next rider.
- FOLLOW ALL MANUFACTURER DIRECTIONS. Check the e-scooter’s safety information, such as weight and age limits. Many e-scooters are designed specifically for adults because of the size and speed. E-scooter accidents can be deadly, and children are less likely to anticipate and appreciate the hazards.
You can see CPSC’s safety tips on hoverboards on the CPSC website at www.cpsc.gov.
Source: U.S. Consumer Product Safety Commission
Mike Crow, a lawyer in our firm’s Personal Injury & Products Liability Section, joined the firm in September of 1986. Much of Mike’s practice is focused on car and big truck litigation along with premises liability cases that involve serious injures and deaths. He has successfully litigated cases against the “Big Box Stores” such as Walmart, Home Depot and others and as a result has a wealth of knowledge of their practices and procedures. Additionally, Mike has handled several cases against school administrators and jail administrators for section 1983 violations and Title IX violations. These cases range from young female students being sexually assaulted by a substitute teacher to the local school board failing to implement a Title IX policy and jail detainees failing to receive proper medical care.
Mike says he was drawn to the practice of law through a combination of factors. He explained that after finishing college, he wasn’t sure what he wanted to do for a professional career. He says: “I knew a couple of lawyers and I liked the fact they were helping folks who need help in one way or another.” Mike says he also recognized that practicing law would give him an outlet for his strong predisposition to competition and that being competitive would benefit him but, more importantly, his clients.
When I got the opportunity to come to work with the firm as a law clerk while in law school, I knew this was my calling. I took the job when there were only a few lawyers in the firm and never looked back.
Mike describes how the philosophy of the firm has played a big role in guiding his practice, He says:
I have been here for 35 years and have seen a lot of good changes. The people who come to work here learn we have a mission to help others and they become your second family in helping to achieve that goal. This firm has blessed my life beyond any expectations I could have ever imagined.
An award-winning lawyer, Mike has been regularly selected to the Best Lawyers in America list since 2011. He is also regularly selected to the prestigious Super Lawyers list. Mike is a current and past member of the Montgomery County Bar Association grievance committee and has served on the committee for the past 20 years. In 2009 he was appointed to serve on the Alabama State Bar committee Disciplinary Commission. Mike is a member of the American Association for Justice (AAJ) Interstate Trucking Litigation Group, and the Plaintiffs Interstate Trucking Lawyers of America.
Mike says his favorite part of practicing law is that every case he handles has a different face and a different need. He adds: “I am not doing the exact same thing on a daily basis. I am trying to make a difference in someone’s life after something has happened to them.”
Sports have always been a big part of Mike’s life and continue to be a significant focus of his civic and volunteer work in the community. He serves on the executive committee of the Auburn University at Montgomery Basketball Booster Club, which is responsible for raising funds for AUM’s basketball program, where Mike once played. He has recently been appointed to the Board of Directors for Capital City Juniors, a travel volleyball club based in Montgomery for girls ages 8-18. Mike is also a former member of the Jimmy Hitchcock Committee, which annually selects an outstanding Christian student-athlete from the local community.
Mike is married to the former Marla Taylor of Hope Hull, Alabama, and they have two children. Mike and Marla attend Church of the Highlands. Their son Cade is a sophomore at the University of Alabama and their daughter Carson Ann is a freshman at Auburn University. Mike and Marla are avid cyclists. Mike also is an avid waterfowl hunter and is active in Retriever Field Trials, where he judges events across the country and campaigns two of his own Labrador retrievers. Mike is president of the Montgomery Retriever Club.
Mike is a talented lawyer who works hard and is totally dedicated to his clients and their cases. He has had tremendous success on their behalf. We are blessed to have Mike as a lawyer and principal in the firm.
Charlie Stern recently joined the firm as part of our Toxic Torts Section where he focuses his practice on representing Plaintiffs who have been exposed to asbestos and developed life-threatening cancers, including mesothelioma and lung cancer. Before joining Beasley Allen, Charlie worked for another Plaintiff’s law firm, representing similar plaintiffs, handling pharmaceutical and product liability cases and fighting for the rights of individuals injured by the wrongful actions of others. He also served as Assistant District Attorney for the Griffin Judicial Circuit in Spaulding County, Georgia.
Charlie says he became a lawyer to help people. “I want to help make sure that the “little” guys get a fair shake, and their rights are protected,” he said, adding “This remains my favorite part of practicing law, too.” Charlie explains further:
As someone who works primarily with people who have been diagnosed with asbestos-caused diseases, I have an opportunity to work with incredible clients. Most of the men and women who I represent are good and decent folks who were exposed to asbestos only because they were doing the right things in life and working tirelessly to provide for their families. Whether they were servicemen in the U.S. Navy, worked in critical manufacturing facilities, helped build America’s great buildings and cities, or were mechanics who kept people in their cars and on the road, these individuals were simply doing their jobs to support their families and were never told of the terrible exposures that they were suffering nor how to protect themselves. Getting to know and represent these people is a privilege.
Since 2019 The National Trial Lawyers organization has named Charlie a “Top 40 Under 40” lawyer, which is “extended solely to the select few of the most qualified lawyers from each state who demonstrate superior qualifications of leadership, reputation, influence, stature and public profile measured by objective and uniformly applied standards.” Charlie is a member of the State Bar of Georgia and the State Bar of Texas. He is also an active member of the Dallas Bar Association, Texas Trial Lawyers Association and the Dallas Association of Young Lawyers.
Charlie grew up in Dallas, Texas, before heading to Georgia to attend the University of Georgia where he majored in history. After attending the University of Texas in Austin for law school, he moved back to Dallas where he and his wife, Bo, currently live. Bo and Charlie love spending time with their families and their dog, Chunk.
As one of the firm’s newest additions, Charlie says he appreciates the resources Beasley Allen has available to stand up for the average consumer against some of the largest, well-funded corporations in the entire world. He says:
Beasley Allen has the resources and practical ability to provide exemplary client service. Almost all Plaintiff lawyers and firms want to and try to represent their clients as vigorously as possible, but the reality is that when the opposing side has unlimited resources that goal can be difficult to achieve in a practical sense. Beasley Allen, with so many talented attorneys and such a deep and experienced support staff, has the resources and particularized skill to truly offer the best representation possible. Through the firm’s focus on attorney specialization, an abundance of resources and a core value system that puts client service at the top, clients can rest assured that they are actually getting the best representation possible.
We are most fortunate to have Charlie join the firm. He is a most welcomed addition.
Brent Warren has been with the firm for 19 years and he is an IT Specialist II in the Information Technology Section. Brent and his co-workers are always available to help staff and help them transition to a new way of working. New challenges were brought on as employees transitioned to working from home due to COVID-19.
In his spare time, Brent says he enjoys spending time with his wife and kids. When he’s not doing that, his friends say you will find him in the woods (as Brent is an avid trapper and hunter) or in the garage working on his next woodworking project.
Brent is married to Laurie Waren. Together, they have four children, two grandsons, and a springer spaniel. Madelyn and Grady are in the 10th grade at Pike Road and Hannah and Madyson are Registered Nurses at Jackson Hospital and the Montgomery Cancer Center. Bent’s family enjoys worshiping at Saint James United Methodist Church and he says they look forward to returning to the church.
When asked what his favorite thing is about working at Beasley Allen, Brent says, “the people I work with. We all work together well and have done so for many years. When you spend more waking hours with people you work closely with, everyone feels more like family than co-workers. We are fortunate in that way.”
Brent is a most valuable employee at Beasley Allen holding an important position and playing an important role in the success of the firm. We are most fortunate to have him with us.
Loretta Williams, who has been with the Firm for 19 years, is an Accountant II in our Accounting Section. Her work involves processing monthly reports for each department, credit card reconciliations and cost accounting procedures.
Loretta is married to Paul and they have a son named Bryce who is in 4th grade. Loretta says they enjoy family road trips, visiting family, visiting museums and aquariums, and also trying new foods.
Loretta says she also enjoys reading in her spare time and a little game that has similarities to Candy Crush, but perhaps not as addictive. She also likes journaling, watching movies at home, taking walks in the park and spending quality time with her husband and son.
When asked what her favorite thing is about working at Beasley Allen, Loretta says, “I’ve been here long enough to have developed some great friendships and work relationships. I’ve seen a lot of people come and go, but I’m glad to be able to see many of those who started with me years ago. It’s always good to see familiar faces in the workplace. I also like that it is a workplace where God is acknowledged daily.”
Loretta is a hard-working, dedicated employee who does excellent work. We are most fortunate to have her at the firm.
Rebecca Trehern, a Legal Assistant (Paralegal), has been with the Firm for two years. She is currently working in the Mass Torts Section. Rebecca is helping with the Talcum Powder Litigation and Plaintiff Fact Sheets for extremis clients.
Rebecca and her husband Daniel have been married for four years and have a 1-and-a-half-year-old little girl, Agostina. In her spare time Rebecca says she loves to read and garden. At the end of the day she loves to tend to the garden with Agostina. Rebecca also says that seeing how much her daughter enjoys helping to water and plant new additions is a wonderful feeling.
When asked what her favorite thing is about working at Beasley Allen, Rebecca says, “I love the people. It’s an amazing work environment. Any time I need help with something I am working on, there is always someone there willing to help guide me. I also love the community outreach that this firm does. My favorite is the Capitol Hill Nursing Home Angels. It’s something that I look forward to every year.”
Rebecca is a hard-working, dedicated employee and she is doing a good job in the cases she handles. We are most fortunate to have her with us.
Bobby Lee Cook
The legendary Bobby Lee Cook is still going strong at the age of 93. The Georgia native has enjoyed a tremendously successful legal career and has long been recognized as one of the best lawyers in the country. I consider my friend from Summerville, Georgia, to be as good before juries as any lawyer in the country. The television series “Matlock” is said to have been inspired by Bobby Lee’s storied law practice. To say that Bobby Lee has been, and continues to be, “a lawyer’s lawyer” is quite appropriate.
Bobby Lee was born in Lyerly, Georgia, in Chattooga County, in 1927. He grew up in northwest Georgia in Lyerly and Summerville, where his family raised cattle and operated a general store. He went to Gordon Military School, graduating in 1942, and attended the University of Georgia and Vanderbilt University before joining the Navy, serving from 1944-1946. He was stationed in the Pacific theater during World War II as a gunner on the Destroyer USS Bannon.
He returned to Vanderbilt after his service, passed the Georgia Bar Exam in 1949 and went back to his hometown to begin the practice of law. He got into politics briefly, serving in the Georgia House of Representatives from 1949-1950 and in the State Senate from 1957-1958. He founded his firm, Cook & Connelly, in 1959, with partner A. Cecil Palmour, whose son, Albert, followed in his father’s and Bobby Lee’s footsteps and also is a lawyer practicing in Summerville, with his own firm. Bobby Lee also served one term as a judge in the State Court of Chattanooga County from 1961-1964.
In addition to inspiring the “Matlock” TV show, starring Andy Griffith as the clever and relatable home-town lawyer, Bobby Lee defended Jim Williams during the first of four trials for the 1981 shooting death of Danny Hansford in Savannah. The case would go on to inspire the book Midnight in the Garden of Good and Evil, and a film by the same name adapted from the novel. In that case, Williams was convicted but Bobby Lee received a copy of the police report anonymously, which revealed the arresting officer had contradicted himself, and the verdict was overturned. Williams was eventually acquitted.
Bobby Lee has tried thousands of cases, including more than 300 murder trials. While those cases captured the public imagination, he also is proud of his work in the arena of civil justice. When he was inducted into The Trial Lawyer Hall of Fame in 2009, he was asked what he considered his greatest triumph as an attorney. He shared his work on Plymel vs. Teacher’s Retirement System of Georgia, in which he and co-counsel Hardy Gregory, Jr., secured just over $750 million for more than 20,000 retired schoolteachers in the state who had been deprived of their proper benefits for 35-40 years.
Bobby Lee said he wanted to be a lawyer because he was drawn to the opportunity to do something good for people. He says he wanted to work in an area where people’s rights had been deprived and he could perhaps make a difference. He certainly has done that, and continues to influence not only individual lives, but the practice of law.
I am sure I could write volumes about Bobby Lee. Others certainly have! I would advise all young lawyers, or those thinking about becoming a lawyer, to read and learn more about this remarkable lawyer, and remarkable man. He truly practices law with his heart where it ought to be, focusing on making someone’s life better.
Sources: AllOnGeorgia.com, Rome News-Tribute
Grant Enfinger: Born To Race
What do I want to be when I grow up?
For most people, the answer to this question changes over time. Firefighter, ballerina, doctor, lawyer are on lots of lists. For Grant Enfinger, the decision was made around age 7, when he attended NASCAR races at Talladega with his father, Floyd Enfinger, and Floyd’s friend, Beasley Allen lawyer Greg Allen.
In the car on the way home from one of these early races, Grant said, “I want to be a race car driver.” The men chuckled, but the boy was serious. He knew. Racing was in his blood and it was what he was meant to do. Shortly after that, he started racing. Grant recalls:
That’s what got the fire started. When I was a kid on trips to Talladega, that’s what started everything. That was before I even started racing go carts – and I had to convince my dad to get a go cart and he finally gave in, and that’s how I got started.
Today, Grant is a professional stock car racing driver who competes full-time in the NASCAR Gander RV & Outdoors Truck Series. He races for ThorSport Racing, driving the No. 98 Ford F-150.
After staring in go carts, Grant steadily proceeded to the Legends circuit, when Beasley Allen came on board as a sponsor. When Grant moved up again, to Late Models, the firm was his primary sponsor. Greg recalls the excitement of seeing the firm logo on the vehicle, and the chance to work closely with Grant and his crew. In fact, our investigator Bobby Mozingo and Greg’s daughter Tracy even worked in the pit crew!
Grant started competing on the ARCA Racing Series in 2008. He raced on a limited basis on and off for several years. During the same time, in 2010, he began to race trucks with a career start at the Camping World Truck series, and worked to qualify for events including the NASCAR Camping World Truck Series and the Sprint Cup Series.
In 2012 his focus returned to ARCA and in 2013 he had a breakout season that included a sentimental win at his hometown track, Mobile Speedway. His success continued in 2014 when he won the ARCA Racing Series Bill France Four Crown award, including a season-opening win at Daytona. In 2015, Grant won the Daytona season-opener again, and went on to earn his first ARCA championship.
In 2016, Grant returned to the Truck Series, hoping to make his mark. His career in this series has been filled with ups and downs. He joined ThorSport Racing in 2017, starting off racing the Toyota Tundra full time. In 2018, ThorSport switched to the Ford F-150.
Grant was suffering a 28-race winless streak heading into 2020 when he won the season opener at Daytona by 0.010 seconds in overtime. It was his third career victory and 100th win for Ford in the series. Grant says:
It’s been kind of a crazy year. We won Daytona, and then the pandemic happened. Early on coming back to racing from that, we were able to come back and win Atlanta. Then we went through a slump and haven’t been performing to our standards lately. We started trying some new stuff, experimenting a little. Then last week at Richmond we had a great truck the entire night and a win. That gives us a little bit of momentum going into the Playoffs.
That Richmond race? Grant was a lap down, in 18th place. That might not sound like much if you aren’t familiar with racing, but it’s a tough spot to come back from. Greg was watching the race on TV and nearly turned it off because he couldn’t bear to watch. He says:
That last race was unbelievable. Grant was a lap down. He got damage on his left rear tire, which required him to make a green flag pit stop to pull the metal away from the tire. As a result he went down a lap. I thought it was over. But he came all the way back from a lap down, which was incredible!
Grant passed ThorSport Racing teammate Matt Crafton with seven laps left to win the Richmond Truck race. On Sept. 17, Grant placed sixth at the half-mile Bristol Speedway. The seven-race series will have drivers racing in Vegas, Talladega, Kansas, Texas, and Martinsville. The championship race will be held in Phoenix.
FAVORITE BIBLE VERSES
Alex Messmore, a law clerk in our Mass Torts Section, sent in three of his favorite Bible verses for this issue.
“Have I not commanded you? Be strong and courageous. Do not be afraid; do not be discouraged, for the Lord your God will be with you wherever you go.” Joshua 1:9
Alex says “I carry this verse with me often. Trusting that He knows what He is doing in my life gives me the strength and courage to conquer each day. When things seem to not be going my way, I am reminded that they are going just the way He planned. There is so much peace and comfort in knowing that I serve a God who never gives up on me and is willing to walk beside me in every moment.“
“Don’t just pretend to love others. Really love them. Hate what is wrong. Hold tight to what is good. Love each other with genuine affection, and take delight in honoring each other.” Romans 12: 9-11
Alex says: “This verse is just so relevant today. Our world has moved away from truly loving one another. I am far too guilty of taking for granted what is good and ignoring what is wrong unless it affects me. Pretending to love others versus really loving them… what does that look like? That is the friend I strive to be. It’s not about being there when it is convenient or when it is easy, it’s about loving people when it is tough, and often when they need it the most. “
“so that Christ may dwell in your hearts through faith. And I pray that you, being rooted and established in love, may have power, together with all the Lord’s holy people, to grasp how wide and long and high and deep is the love of Christ, and to know this love that surpasses knowledge—that you may be filled to the measure of all the fullness of God.” Ephesians 3:17-19
Alex says: I struggled not to include this verse. There is so much beauty and joy and comfort and peace in knowing just how wide and deep His love is. It is hard to understand just HOW wide and long and high His love is, but what a privilege it is to spend each day learning more and more about His love for us. How blessed are we!
Gavin King, a brand new lawyer in our Toxic Torts Section, sent in a two verses for this issue. Gavin received word on Sept. 25 that he had passed the Alabama Bar exam.
“But let justice roll like a river, righteousness like a never-failing stream.” Amos 5:24
Gavin says: “This text is timely in a time of such uncertainty and unrest. Although we often have disagreements on what justice looks like in our day, our hearts long to see justice done. For the Christian, there is an inescapable reality that one day, Jesus Christ is coming to create a world where injustice will be no more – where justice will flow like the waters of a mighty river.”
“For we do not have a high priest who is unable to sympathize with our weaknesses, but one who in every respect has been tempted as we are, yet without sin.” Hebrews 4:15
Gavin says: “The humanity of Jesus often reminds me that because God became human, he can sympathize with us in a unique way. He walked as we walk—he was tempted as we are tempted. As we struggle with whatever life may bring, we can take solace in the fact that our Savior experienced all that we have. Even further, our Savior experienced all of these things, and yet remained sinless. Because of this sinless life, by faith, we might too live with Him in a land where temptations and trials will be no longer.”
Ashley Locklar, a staff assistant in our Human Resources Department, furnished two of her favorite Bible verses.
For God has not given us a spirit of fear, but of power and of love and of sound mind. 2 Timothy 1:7
Ashley says: “I feel we need to remember this now more than ever! With all of the turmoil in the world, which seems to grow each day, it can be easy to get wrapped up in fear. That is not what God wants for us. He wants us to know that he is in control. With that knowledge, it gives us power over fear, the ability to express love over hate and a sound mind to control our thoughts and actions during these times of turmoil.
“I can do all things through Christ, who strengthens me” Phil 4:13
Ashley says: “This is my all-time favorite Bible verse. As I think of all the pain and heartache I have been through in my life, each event should have broken me for good. Through prayer and faith, I am still able to feel happiness and an abundance of love. My ability to overcome all that is my proof of the promise of this Bible verse.”