The Jere Beasley Report December : 2020

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CAPITOL OBSERVATIONS

Beasley Allen Locations

When I started the firm in Montgomery, Alabama, more than 40 years ago, I never thought we would grow bigger than about five lawyers. Today, we have almost 100 lawyers. I also never actually thought about opening an office anywhere besides Montgomery. But our Atlanta office opened in 2018 with two lawyers – Chris Glover and Navan Ward. The lawyers there were embraced by their new community, and have experienced great success in Georgia. We now have 10 lawyers based out of Atlanta, with room to grow, with Chris leading the team as Managing Attorney for that office.

Now, here we go again. I’m pleased to announce that in January 2021 Beasley Allen will have a third office – in Mobile, Alabama. As we did in Atlanta, two very good lawyers from the Montgomery office will head up the new office – Frank Woodson and Evan Allen. I am confident we can be a great addition to the coastal community, and we look forward to building relationships with co-counsel in the area as we did in Georgia.

Particularly given the unique challenges of 2020, with the pandemic, mandatory office and Court closures, trial delays, far too much fear and uncertainty, all of us at Beasley Allen recognize that our firm has been blessed. Not only have we been able to overcome so many of these challenges to sustain our firm, we recognized additional opportunities for growth.

Our Atlanta office was hitting its stride at the end of its first year, and in 2019 we recognized we needed to expand from our original office location to another facility. Our first office building was fairly small, and with the expansion of the team of lawyers and support staff, quickly outgrew it and we had to move some of the team into another building on the property. This was awkward, having folks split up between buildings.

In December 2019, we located new space at the Overlook II property on Paces Ferry Road, and began the process of getting the office ready. Everyone was excited about the prospect of having the whole team together in one place. Collaboration is a big part of the legal process, exchanging ideas, getting feedback, building camaraderie with new and young lawyers.

But as we all know, 2020 had a giant curveball in store. Just as the team was moving in, the pandemic hit, and businesses everywhere began closing their physical office spaces, moving the bulk of employees to working from home. Not only that, court closures wrecked the full trial calendar, putting cases that were ready to go on hold indefinitely. This was difficult for the lawyers, but even more so for clients. Chris explains:

One of the big tragedies of the pandemic is the people who have been seeking justice, who were wronged and lost so much are sitting waiting on their case to be allowed to move forward. Justice delayed is justice denied. It’s hard to explain to a mom who lost her son that we can’t move forward seeking justice for you because the courts are shut down. How do you tell someone whose loved one is paralyzed, and they need access to health care, and support and they aren’t going to get it until case is tried, that you have to wait? These are people hurting and waiting. It keeps me up at night. We try to be creative but all that won’t get us where we need to be. The court system was designed to be the answer to this.

We were encouraged in October and November as courts began to slowly reopen. Beasley Allen lawyers were among the first able to return to the courtroom for a jury trial, successfully representing a client in court in Mobile whose fiancé was killed by a drunk driver. Under Alabama’s Dram Shop Laws, we were able to hold the facility that overserved the driver alcohol responsible for his subsequent conduct, driving under the influence and causing the fatal crash.

It is hoped that with safety precautions to socially distance jurors, require masks, face shields and other protective barriers and procedures, that jury trials will resume across the country very soon. Trials are being scheduled, trial dates set and added to the calendar. We are excited about his prospect, not for us, but for our clients – the families who have lost everything. We need to be prepared as soon as the courts allow to seek justice for them.

“Helping those who need it most,” is more than our motto. It is our promise, our number-one goal, and ultimately will be our legacy. Putting the client first is paramount to our success, and we hope as we grow the firm, that we will continue to be able to serve more folks who need our help. We already work with clients and other lawyers locally, regionally and nationally. We hope that by expanding our physical footprint that we can be even better positioned to accomplish our mission.

You will be hearing more about our new Mobile office next month as we set our opening date. We are looking forward to getting to work there.

Beasley Allen Had Five Of The 33 Largest Products Liability Verdicts

The National Law Journal recently acknowledged a number of lawyers and firms securing the highest-ranking verdicts during the period 2015 to 2019. The National Law Journal Verdicts Hall of Fame included six categories: Admiralty/Maritime, Fraud/Professional Negligence, Medical Malpractice, Products Liability, Securities, and Wrongful Death. Beasley Allen was recognized in five of the 33 largest verdicts in Products Liability cases.

The results recognized four trials against Johnson & Johnson alleging that its Baby Powder and Shower to Shower products cause ovarian cancer. These verdicts ranged from $70 million to $117 million. Beasley Allen lawyers Ted Meadows and Leigh O’Dell head up the Beasley Allen Talc Litigation Team. The team handles claims of ovarian cancer linked to talcum powder use for feminine hygiene. Also, the team handles mesothelioma cases.

Members of the Beasley Allen Talc Litigation Team also include: Kelli Alfreds, Ryan Beattie, Beau Darley, David Dearing, Liz Eiland, Jennifer Emmel, Jenna Fulk, Lauren James, James Lampkin, Caty O’Quinn, Cristina Rodriguez, Brittany Scott, Matt Teague and Margaret Thompson. Beasley Allen lawyers Will Sutton and Charlie Stern handle the mesothelioma claims related to talc products.

The largest products liability verdict Beasley Allen was recognized for was a $151 million verdict on behalf of a young man tragically injured in a Ford SUV rollover accident. LaBarron Boone led the Beasley Allen trial team that secured this verdict. Other lawyers on the team were Greg Allen, Kendall Dunson, Dan Philyaw and Stephanie Monplaisir, along with Bill Gamble of Selma’s Gamble, Gamble, Calame and Jones, LLC.

Beasley Allen Managing Attorney Tom Methvin had this to say about the nationwide recognition:

Beasley Allen lawyers and staff work diligently for all clients in the pursuit of justice. I am proud of the work we have done on these cases and the thousands of others that hopefully made life a little easier for those who were injured by no fault of their own.

National Law Journal subscribers can find more information at: https://images.law.com/media/nationallawjournal/supplements/HOF_NLJ_2015-2019/mobile/index.html

Source: National Law Journal

THE TALC LITIGATION

Talc Litigation Update

Beasley Allen’s Talc Litigation Team has been hard at work on the talc litigation at both the state and multidistrict litigation (MDL) levels over the last month. The MDL team has been working on setting depositions for Plaintiffs, fact witnesses, and experts for those cases selected as bellwether picks. The bellwether picks are a mix of Plaintiff picks, Defense picks, and random selections from the court. The goal for these case-specific depositions is to have them completed by January of 2021. Meanwhile, the MDL team continues working out some discovery issues with the Defense and will be conducting additional corporate liability discovery depositions over the next several months. Numerous Johnson & Johnson witnesses have been identified and researched with the goal being to have these depositions completed in the first half of 2021.

On the state court front, Beasley Allen currently has numerous cases set for trial in 2021 as the coronavirus has continued to affect 2020 trial settings. Early 2021 has started to see some effects from the coronavirus as well with the first trial scheduled for Jan.4 in St. Clair County, Illinois, being rescheduled to April after the recent surge in new cases throughout the area. While this setting has been pushed back, the multi-Plaintiff trial in St. Louis, Missouri, involving three Plaintiffs remains set to begin in mid-February. There has been an additional case set for trial in St. Louis in May with additional potential trial dates throughout the second half of 2021. In Philadelphia coronavirus continues to affect trial settings and the Kleiner trial has been pushed to 2021. The Beasley Allen team has several trial-ready dates in Philadelphia and will be trying the Kleiner case as soon as possible. In addition to Kleiner the Wilson case is set for trial in Philadelphia for May 5 and remains on schedule. In Georgia the Brower retrial is still being reset with plans to retry this case as soon as it can be scheduled in 2021. While working on getting the Brower retrial set, additional discovery efforts have continued against Johnson & Johnson’s longtime talc packager/manufacturer PTI, which has a large presence in Georgia.

Along with multiple trials already set in Missouri, Illinois and Pennsylvania for 2021 the team is continuing to look at Atlantic City and South Florida as potential venues for additional trials in 2021. For additional information on these cases, contact Ted Meadows, Leigh O’Dell or Brittany Scott at 800-898-2034 or by email at Ted.Meadows@beasleyallen.com, Leigh.Odell@beasleyallen.com or Brittany.Scott@beasleyallen.com.

Missouri Supreme Court Refuses To Review $2.1 Billion Talc Verdict

After the Missouri Supreme Court’s refusal to review a $2.1 billion talc verdict, Johnson & Johnson said it will appeal to the U.S. Supreme Court. The decision comes after a 2018 jury found that asbestos and other carcinogens in J&J talc products (Johnson’s Baby Powder and Shower to Shower) gave 22 women ovarian cancer. The 2018 litigation was led by named Plaintiff Gail Ingham, who died while the case was on appeal.

The $2.1 billion verdict had previously been reduced by the intermediate appeals court in Missouri’s Eastern District from the record-setting $4.7 billion that the jury originally awarded. The state’s high court then refused J&J’s application to transfer the case. While the lower appellate court slashed the verdict by more than 50%, it affirmed the jury’s finding that carcinogens in J&J talc products caused the women’s cancers.

J&J had argued without justification that the identical $25 million given to each of the 22 women was evidence that the jury did not look closely at the details of each case. However, Missouri’s Eastern District stated that identical awards alone are not evidence of unfair treatment. Further, the court found punitive damages acceptable, stating firmly that J&J knowingly sold asbestos-contaminated products to consumers, and had done so for decades.

Mark Lanier, a lawyer for the Plaintiffs, had this to say about the high court’s decision:

The trial jury sent a loud message alerting the world to the dangers of talc … While we applaud J&J’s decision to cease distributing its talc-based powders in North America, much more needs to be done to provide justice for victims both now, and in the future.

The Plaintiffs are represented by Eric Holland and Patrick Dowd of Holland Law Firm LLC, John Torbitzky of Behr McCarter & Potter PC, Kenneth Starr, Mark Lanier, Kevin Parker, Benjamin Major and Natalie Armour of The Lanier Law Firm and John Ashcroft.

The case is Ingham et al. v. Johnson & Johnson et al. in the Supreme Court of Missouri.

Source: Law360.com

Beasley Allen Talc Litigation Team

Beasley Allen lawyers Ted Meadows and Leigh O’Dell head up the Beasley Allen Talc Litigation Team. The team handles claims of ovarian cancer linked to talcum powder use for feminine hygiene. Lawyers Will Sutton and Charlie Stern also are on the team and they are exclusively handling mesothelioma claims. Will and Charlie are looking at cases of industrial, occupational and secondary asbestos exposure resulting in lung cancer or mesothelioma as well as claims of asbestos-related talc products linked to mesothelioma.

Beasley Allen lawyers continue to investigate and litigate talcum powder cases on behalf of women who have been diagnosed with ovarian cancer after genital talc use. For more information, contact Brittany Scott or Melissa Prickett at 800-898-2034, or by email at Brittany.Scott@BeasleyAllen.com or Melissa.Prickett@BeasleyAllen.com.

Members of the Talc Litigation Team, in alphabetical order, include: Kelli Alfreds (Kelli.Alfreds@beasleyallen.com), Ryan Beattie (Ryan.Beattie@beasleyallen.com), Beau Darley (Beau.Darley@beasleyallen.com), David Dearing (David.Dearling@beasleyallen.com), Liz Eiland (Liz.Eiland@beasleyallen.com), Jennifer Emmel (Jennifer.Emmel@beasleyallen.com), Jenna Fulk (Jenna.Fulk@beasleyallen.com), Lauren James (Lauren.James@beasleyallen.com), James Lampkin (James.Lampkin@beasleyallen.com), Caty O’Quinn (Caty.OQuinn@beasleyallen.com), Cristina Rodriguez (Cristina.Rodriguez@beasleyallen.com), Brittany Scott (Brittany.Scott@beasleyallen.com), Charlie Stern (Charlie.Stern@beasleyallen.com), Will Sutton (William.Sutton@beasleyallen.com), Matt Teague (Matt.Teague@beasleyallen.com), and Margaret Thompson (Margaret.Thompson@beasleyallen.com).

OPIOID LITIGATION

An Update On The Opioid Litigation

State of Alabama

Beasley Allen’s Opioid Litigation Team represents the State of Alabama in its suit against major pharmaceutical companies and distributors. The team, working as special counsel for the State of Alabama, continues to work hard in the pretrial discovery and document production phases of the litigation.

The State of Alabama’s lawsuit names as Defendants Purdue Pharma, Endo Pharmaceuticals and McKesson Corporation, a distributor. As we have previously reported, Purdue filed for bankruptcy, leaving McKesson and Endo as active Defendants in the lawsuit.

Most recently, the remaining Defendants filed a writ of mandamus seeking information protected by Alabama law in this litigation. Our litigation team vehemently opposed this effort and the Alabama Supreme Court denied the Defendants’ request.

The lawsuit is set for trial in Montgomery County, Alabama, in May of 2021. The Beasley Allen lawyers are proud to work on behalf of the State of Alabama and all of those affected in our state by the Opioid epidemic.

State of Georgia

Our law firm, along with the Barnes Law Group, The Cooper Firm, and Franklin Law, were previously selected to represent the State of Georgia in its opioid litigation against numerous opioid manufacturers and distributors. The case was originally filed in January 2019, and is situated in the Gwinnett County Superior Court, Business Case Division, before Judge Joseph C. Iannazzone.

Currently, Georgia’s case is on track to go to trial at some time in 2022. Parker Miller, a lawyer in our Atlanta Office, is leading our Firm’s efforts in the litigation. Parker has been working closely with lawyers on the team and in the Georgia Attorney General’s office.

Rhon Jones is also bringing his long-running experience in high-stakes litigation to bear in the Georgia case. Other Beasley Allen lawyers working on the case are Ken Wilson, Jeff Price and Rick Stratton. All of them are doing a great job in this most important case.

We are honored to be working with such a tremendous team of lawyers in assisting Attorney General Chris Carr and his staff in this litigation. If you have any questions about the litigation, contact Parker Miller at 800-898-2034 or by email at Parker.Miller@beasleyallen.com. Stay tuned!

Three Distributors Reach $21 Billion Opioid Settlement

Three opioid distributors have agreed to pay up to $21 billion to settle litigation over their role in fueling the opioid crisis that has destroyed countless Americans’ lives. McKesson Corp., Cardinal Health Inc. and AmerisourceBergen Drug Corp. have agreed to pay $21 billion in the proposed settlement.

This settlement comes after extensive negotiations with attorneys general and the Plaintiffs’ executive committee, which represents local governments in multidistrict litigation (MDL) involving claims that the drug makers contributed to the opioid crisis with reckless sales of painkillers and by downplaying the drugs’ addiction risks.

In a filing with the U.S. Securities and Exchange Commission (SEC) on Nov. 3, McKesson said the attorneys general proposed that it would pay up to $8 billion over 18 years and the two other companies would pay the remainder over that same time.

The settlement is the latest development after the three distributors tentatively reached an $18 billion settlement last year with the attorneys general. As previously reported, that settlement fell apart.

The MDL contains about 3,000 cases filed mostly by cities and counties seeking money for health care and law enforcement costs related to opioid abuse. Some MDL lawyers also represent cities and counties with similar cases in state courts. The attorneys general of virtually every state have also filed cases in state courts, usually with the assistance of lawyers in private practice.

Source: Law360.com

FDA And DEA Experts Cleared To Testify In New York Opioid Case

New York state court Justice Jerry Garguilo, who is overseeing the New York Attorney General’s opioid suit, said on Nov. 13 that he will allow key witnesses for the state and two Long Island counties to testify. Those witnesses include a former U.S. Food and Drug Administration (FDA) head and a former U.S. Drug Enforcement Administration (DEA) agent.

It was made known by Justice Garguilo in a hearing that trial will begin after the holidays in the New York Attorney General’s long-awaited “opioid epidemic” trial in which drug makers and distributors face claims they are directly responsible for the cost of the health crisis linked to the drugs they sold. Jury selection is scheduled for January with opening statements to commence in February or March.

Justice Garguilo said he will allow former FDA commissioner Dr. David Kessler to testify at trial that drug companies’ marketing and promotion of opioids deviated from the agency’s standards and increased the risk of abuse and endangered patient safety. Dr. Kessler said in August at a Frye hearing, which is used to determine the admissibility of scientific evidence, that drug promotions can influence a drug’s prescribing and use, although he conceded that he didn’t question individual doctors.

Justice Garguilo also will allow former DEA investigator James Rafalski to testify that drug companies failed to put in place systems to monitor for suspicious orders of opioids.

In the justice’s order on Nov. 12, he also gave permission for addiction expert Dr. Anna Lembke to testify. Dr. Lembke said during the hearings that she believed the FDA made the wrong decision when it approved the use of opioids to treat chronic pain. She believes the FDA contributed to the opioid epidemic by making it easier for pharmaceutical companies to get the agency’s approval for new opioids.

Dr. Lembke opined that opioid prescribing rose four-fold starting in the 1990s nationwide, as doctors were misled by pharmaceutical companies about the addiction risks of opioids. Dr. Lembke bases her opinion on reviewing the medical literature, her clinical experience and qualitative interviews with patients and prescribers

The jury will hear Attorney General Letitia James and the two Long Island counties bring claims against drug makers including Johnson & Johnson’s Janssen Pharmaceuticals, Endo Health Solutions, Teva Pharmaceuticals USA Inc. and Allergan Finance LLC, as well as distributors McKesson Corp., Cardinal Health Inc., Amerisource Bergen Drug Corp. and Rochester Drug Cooperative Inc. Attorney General James said in a statement:

For more than two decades, the opioid epidemic has wreaked havoc on New Yorkers and Americans across the nation. Come next year, the deadly scheme perpetrated by the companies responsible for this national nightmare will be presented in open court and laid bare before the American people, and no one will be able to deny the immoral actions that led us here.

Although states and local governments have filed thousands of cases blaming drug companies for the opioid crisis, only one case has gone to trial. That bench trial saw Oklahoma’s attorney general win a $465 million judgment against Johnson & Johnson, which has been appealed.

Companies named in the New York suit include drug makers J&J and Teva and distributors Cardinal Health and AmerisourceBergen.

The case is In re: Opioid Litigation (case number 400000/2017) in the Supreme Court of the State of New York, Suffolk County. Hopefully, this case will remain set and go to trial as scheduled. Stay tuned!

Source: Law360.com

Purdue Pharma Gets Court Approval For $8 Billion Settlement With Federal Government

U.S. Bankruptcy Judge Robert Drain has approved Purdue Pharma’s $8 billion settlement of federal felony charges arising from its OxyContin sales. The justice also will allow Purdue’s former owning family to pay $225 million in fines without violating court orders.

Judge Drain said further that parties in the Chapter 11 case should use the settlements to move forward on a bankruptcy plan before the omnibus hearing scheduled for this month in the case.

Details of Perdue’s Chapter 11 plan – which would also call for the Sackler family to contribute $3 billion and give up its ownership of Purdue’s American assets – are currently being negotiated between Purdue’s creditors in the bankruptcy case.

The case is In re: Purdue Pharma LP (case number 7:19-bk-23649) in the U.S. Bankruptcy Court for the Southern District of New York.

Source: Law360.com

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, Gavin King 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, Gavin.King@beasleyallen.com or Tucker.Osborne@beasleyallen.com.

AN UPDATE ON DRAM SHOP LITIGATION

Clarity And Justice Achieved In Mobile Trial

Recently we received both clarity and justice in a case our firm tried in Mobile County, Alabama. We wrote about the result in the November issue. Clarity on the law was first received from the Alabama Supreme Court and subsequently justice was obtained for our clients in the case that involved the death of a loved one.

Liability in this case was based on what is known as a Dram Shop Act. Most every state has a Dram Shop law, which holds sellers of alcohol responsible if they overserve a person whose intoxication results in injury or death to another. The facts in our case established that on June 6, 2015, Willie McMillian spent several hours at the Mobile Greyhound Park where he was served alcohol. Within minutes after leaving the track, McMillian crashed his car into the back of the car our clients were in. McMillian, who was traveling 97mph when he struck our clients’ vehicle, had a blood alcohol content of more than .240, three times the legal limit.

This case was originally set for trial on May 14, 2018, before a judge different than the judge who actually presided over the trial a few weeks ago. Prior to the first trial setting, the original judge told us he had been thinking about the evidence in our case and he did not believe we could prove our case at trial. That judge then dismissed the case. In his order of dismissal, the judge ruled that we could not use circumstantial evidence to prove that McMillian was visibly intoxicated at the time he was served alcohol by the track employees.

We filed our case, including our death claim under both the Dram Shop Act and Alabama’s Wrongful Death Act. We believed the death claim had to be brought under the Dram Shop Act, but were not aware of any death case that had been brought under any theory other than Alabama’s Wrongful Death Act. So, we filed our case under both Acts. The only damages under Alabama’s Wrongful Death Act are for punitive damages. We argued that the Dram Shop Act allows for compensatory and punitive damages in both the personal injury and death claims. The Defendant agreed that we were entitled to punitive damages for the injury cases, but that in order to recover both we had to prove a heightened standard of culpability (wanton or willful conduct) and that we had to prove liability by clear and convincing evidence as opposed to the normal burden of proof, which is a preponderance of the evidence.

The Defendant argued that we were not entitled to any relief for the death claim. The trial judge agreed and ruled that we could not bring an action for death under either the Dram Shop Act or Alabama’s Wrongful Death Act.

Clarity

We appealed the trial court’s rulings to the Alabama Supreme Court. The Court agreed with us and issued an opinion that has changed the landscape of Alabama Dram Shop Law. The three main holdings from the Alabama Supreme Court are:

  • circumstantial evidence can be used to establish visible intoxication,
  • a death claim can be brought under the Dram Shop and the decedent is entitled to compensatory and punitive damages, and
  • the parties are entitled to punitive damages if they prove their claim without having to prove a heightened standard of conduct or a heightened burden of proof.

The practical effect this has on Dram Shop Law in Alabama is momentous. As an example, before this opinion, Defendants would argue the Dram Shop Act was a strict liability statute and the only issue was whether the Defendant sold alcohol to a person who was visibly intoxicated. Defendants would argue its policies, procedures and training were not relevant to whether a person was visibly intoxicated when served.

Our Mobile case has changed all of that. Actually, the case brought Dram Shop Law in line with all other case law as it relates to materiality, relevance and the evidentiary support for those concepts.

Now, the fact a server had no training whatsoever in the service of alcohol is relevant and material as to whether it would be more likely they would not recognize a visibly intoxicated patron and continue to serve them.

Evidence that a Defendant did nothing to try and prevent service to intoxicated patrons is now admissible. A Defendant’s bad conduct related to alcohol service is now admissible if it makes it more likely they would have served alcohol to a person who was visibly intoxicated. In the Supreme Court’s opinion, the justices said the jury was to consider the “totality of the circumstances” when determining whether a Defendant sold alcohol to someone who was visibly intoxicated.

In addition to expanding evidentiary issues, the Supreme Court’s opinion also held that the family of a person killed as a result of a violation of the Dram Shop Act was entitled to both compensatory and punitive damages. The Court said that injury to the person under the law included death. This holding is momentous and will help protect innocent people. We know of no other case under Alabama law, prior to this opinion, that allowed the recovery of compensatory and punitive damages for death.

And finally, the Supreme Court held that if the Plaintiffs prove their case, they are automatically entitled to punitive damages without having to prove wanton or willful conduct and without having to prove it by clear and convincing evidence.

Justice

Armed with the clarity of the Alabama Supreme Court’s opinion, our lawyers went back to trial before a different judge in Mobile County, Alabama. They tried the case for a little over a week. The case settled just minutes before the jury returned a $12.4 million verdict. So, our clients received justice and do not have to go through another appeal process.

The clarity expressed in the Supreme Court’s opinion in our case has forever changed Alabama law for the better. This change will help to hold those who enjoy the privilege of selling alcohol responsible when they do so in violation of Alabama law. It will also help bring justice to those families who have lost loved ones or been injured by overserved patrons.

Graham Esdale, Cole Portis and Kendall Dunson tried this case and did an outstanding job. The appeal to the Supreme Court was handled by Stephanie Monplaisir.

Case Against Wind Creek Casino Is Moving Forward To Trial

Beasley Allen lawyers are representing two people who were injured in a motor vehicle collision involving a Wind Creek Casino employee who drank alcohol all night on New Year’s Eve 2014 and into the early morning hours of the New Year. The female employee came to work at the Casino the next day at 8 a.m. Shortly after arriving at work, the employee left in a company vehicle to perform company business. Later that morning she was involved in a head-on collision resulting in two persons being injured with one of them being serious injuries.

Beasley Allen filed a lawsuit on behalf of the two injured persons against the Poarch Creek Indians, its gaming authority and the employee who caused the collision. The trial court judge dismissed all claims against the tribe and gaming authority based on the legal doctrine of Tribal Sovereign Immunity.

However, in a unanimous opinion (two justices recused) in 2017, written by then-Chief Justice Lyn Stuart, the Alabama Supreme Court held that while they recognize the doctrine of Tribal Sovereign Immunity, there are no statutes or treaties defining the limits of Tribal Sovereign Immunity and that task has been left to the United States Supreme Court in situations where tribal and non-tribal members interact.

The Alabama Court noted that the U.S. Supreme Court has never recognized that Tribal Sovereign Immunity applies to tort victims or to persons who had not chosen to deal with an Indian tribe. The victims in our case clearly did not choose to interact or engage with the Defendants. They were driving lawfully on a public road when they became innocent victims involved in a motor vehicle accident. The Alabama Court was not going to shield the tribe from the tort claims that arose based upon the legal doctrine of Tribal Sovereign Immunity. The Court declined to extend Tribal Sovereign Immunity in this case, since the U.S. Supreme Court has not done so.

The case is now pending before Circuit Judge Bill Lewis, who has set the case for a jury trial on Jan. 4, 2021. Mike Crow, a lawyer in our Personal Injury & Products Liability Section, who is leading the litigation team in this case, notes:

It has been a long and arduous journey for our two clients who were injured in a head-way crash on Jan. 1, 2015. One of them received life-threatening injuries. The case involves a Casino employee, who Casino management knew when she was hired has issues with alcohol. Despite a history of alcohol issues, including being fired from a previous job for alcohol issues, violation of the Casino’s policy and procedure manual concerning alcohol use, and failure to complete a prescribed counseling program for the violations, the Casino management did nothing to monitor the employee. We look forward to presenting all the facts of the case in January 2021.

The employee in question was reported by her supervisors at Wind Creek on at least eight occasions as smelling like “alcohol.” On one occasion, the employee was tested and was near double the level allowed by the Casino’s policy and procedure manual. She was not terminated, but allowed to participate in an employee counseling program. The employee failed to complete the program and was not monitored by Casino management, who allowed her to remain employed. She was allowed to drive Casino vehicles.

Tribal Sovereign Immunity is an archaic doctrine that no longer is needed. We look forward to seeing this case go forward to finally get much-needed relief for our clients. We hope the decisions around this issue will allow us to continue to help folks in need of help, and hold accountable the wrongdoers. We continue to pursue all types of cases through our Personal Injury and Products Liability Section where Plaintiffs have suffered serious personal injury or death. Mike Crow, Kendall Dunson and Cole Portis will try this case for our clients.

PURELY POLITICAL NEWS & VIEWS

The Presidential Race Is Over

After a year filled with stress and uncertainly, it was hoped that on Nov. 3 there would be a clear and immediate decision about the 2020 Presidential race. Unfortunately, while there was a clear and convincing outcome, as it turns out, binging the race to an end hasn’t been simple. Things went as many experts predicted, with a so-called “red mirage” on election night, with results leaning toward re-electing the incumbent President Trump. But as expected, the “big blue shift” came the following day as mail-in and absentee votes were properly and correctly counted. The race then swung to Joe Biden and Kamala Harris and there should not be any real questions as to the outcome.

All of this was predicted because Republican voters were expected to turn out in greater numbers in person on Election Day, while more Democratic voters were voting early, either in person or by mail. Because many of those votes could not be counted by the states in which they were cast until the polls closed, by law, it would not be until many hours later that the surge – if there was one – would became visible. That is exactly what happened, with the Biden-Harris ticket winning the popular vote and flipping several key states from red to blue – including, incredibly, traditionally deep-red Georgia as well as Arizona.

As expected, President Trump has refused to accept the election results, calling the election “rigged.” Trump is playing up on the rhetoric he began spreading months before the vote in an effort to generate distrust in the election process. As of this writing on November 23, Trump was still refusing to concede. In fact, it appears Trump is attempting a coup that would steal the election from the clear winner, President-Elect Joe Biden.

On Nov. 15, President Trump took to his favorite medium – Twitter – and admitted Joe Biden “won” for the first time, but quickly backpedaled, saying his democratic opponent only won in the eyes of the “fake news media,” again refusing to concede and continuing to insist he won, in ALL CAPS.

We have witnessed a display that can only be described as childish, and it’s incredible to see the ostensible leader of the free world acting in such a way. Despite a slew of haphazard and meritless legal challenges and by-hand recounts in close battles, the election results have been confirmed again and again. Longshot and baseless lawsuits to dispute results in Georgia, Wisconsin, Michigan and Pennsylvania have all failed in federal courts. To dispute these results not only makes Trump look foolish, but it is an assault on the most important process of democracy.

Despite the lack of concession, President-Elect Biden is moving ahead with transition plans, supported by diverse team including 46% people of color. Additionally, 52% of the transition staff are women, and 53% of the senior staff are women, according to CNN. Of course, President-Elect Biden made his first diversity selection with the choice of now Vice President-Elect Kamala Harris as his running mate. As the team puts together the new administration’s Cabinet and senior staff, it is likely to honor the ticket’s campaign pledge that this White House will “look like America.”

I hope by the time this issue of the Report finds its way into your hands, Trump will have finally acknowledged the truth – Joe Biden was elected President – and a peaceful transition is being allowed to take place. There are serious issues facing America – foremost among them a still-surging pandemic, and an economic crisis – and we need a leader who can unite us. I hope it’s not too late, that the gouges of division are not too deep to be beyond repair.

Sources: CNN and Associated Press

COURT WATCH

Courts Should Not Overrule The Vote Of The American People

As this issue of the Report was nearing deadline – a little early in anticipation of the Thanksgiving holidays – the battle for the Presidency of the United States was still being waged in courts in battleground states. Despite results clearly showing that Joe Biden is the victor, by a large margin in the popular vote, and comfortable even in electoral votes, Donald Trump at this writing still refuses to concede.

It goes without saying that this writer in good faith believes in and supports the civil justice system. That belief is that the courts will ensure a fair and level playing field for all. The system works and works well. But in this instance, nobody has been wronged. The most powerful man in America, and arguably the world, is claiming to be the victim. He is abusing the court system, attempting to use this fundamental and crucial right of Americans to attempt to overturn another fundamental and crucial right of Americans – their vote.

Voting provides an opportunity for every person to weigh in on matters that will affect their lives, from the local level all the way to deciding the direction of this country. This was the most closely and monitored election ever in the U.S. There has been no proof of any fraud or wrongdoing.

So far, the Trump team has been full of empty threats and false accusations. And, so far, the court system has worked as it was meant to – throwing out all of the baseless cases that have no legal merit. Lawyers with any conscience and dedication to their pledge of ethics have dropped out of the lawsuits.

Rudy Giuliani – clinging to his role as Trump’s minion – remained engaged in Pennsylvania tilting at windmills. U.S. District Judge Matthew Brann cut through the claims and pressed for proof of the alleged voter fraud. In the face of the challenge, Giuliani retreated, saying “this is not a fraud case.”

As of this writing, the efforts to overthrow the legitimate vote of the American people has failed at every turn. Trump’s team has admitted they were simply trying to secure any ruling that will get them to the U.S. Supreme Court, where, ostensibly, they counted on the court they loaded during the campaign to rule in Trump’s favor.

It would have been the ultimate miscarriage of justice if that had happened. And the end of America’s experiment in democracy. The courts should never overrule a legitimate vote of the American people. It now appears Trump’s coup efforts have failed miserably.

Sources: Bloomberg, Fox News and The Washington Post

U.S. Supreme Court Hears ACA Arguments

The Trump Administration has been trying its dead level best for four years to derail heath care for Americans. The case involving the Affordable Care Act (ACA), commonly known as Obama Care, is now before the U.S. Supreme Court. At least five Supreme Court justices, including two members of its conservative majority, indicated on Nov. 10 that they would reject attempts by the Trump administration to kill the ACA.

It was not clear whether the high court would strike down a provision of the act that initially required most Americans to obtain insurance or pay a penalty, a requirement that was rendered toothless in 2017 after Congress zeroed out the penalty. But the bulk of the 2010 health care law, President Barack Obama’s defining domestic legacy, appeared likely to survive its latest encounter with the Supreme Court.

Both Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh said striking down the so-called individual mandate did not require the rest of the law to be struck down as well. Chief Justice Roberts said: “Congress left the rest of the law intact when it lowered the penalty to zero.”

Justice Kavanaugh made a similar point, saying “It does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the act in place – the provisions regarding pre-existing conditions and the rest.” The court’s three-member liberal wing – Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan – also indicated their support for the law. Their support suggested there were at least five votes to uphold almost all of the law.

Three members of the court’s conservative majority, Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch, seemed poised to vote to strike down the law. There was nothing from the court’s newest member, Justice Amy Coney Barrett, that would tip her hand. However, she has been publicly critical of earlier rulings sustaining key provisions of the law.

Striking down the Affordable Care Act would be devastating. Such a result would expand the ranks of the uninsured in the United States by about 21.1 million people – a nearly 70% increase – according to new estimates from the Urban Institute. The biggest loss of coverage would be among low-income adults who became eligible for Medicaid under the law after all but a dozen states expanded the program to include them. But millions of Americans would also lose private insurance, including young adults whom the law allowed to stay on their parents’ plans until they turned 26 and families whose income was modest enough to qualify for subsidies that help pay their monthly premiums.

In the decade since the enactment of the health care law, Republicans have worked hard to destroy it, and President Trump, who probably has never even read the law, has repeatedly criticized it. But all attempts to repeal the ACA have failed, including two earlier Supreme Court challenges, in 2012 and 2015. With the passing years, the law has gained in popularity and been woven into the fabric of the health care system in ways big and small.

President-Elect Joe Biden has vowed repeatedly to preserve and expand the ACA when he takes office on Jan. 20. He assailed the arguments made in court by lawyers for Republican officials and the Trump Administration. The President-Elect lashed out at what he called “far-right ideologues” in the administration who had asked the court to strike down the law, saying the impact of such a move for millions of Americans would be severe.

During his campaign for president, Biden said he wanted to strengthen the law by offering a public option that allows people to receive coverage the way Medicare enrollees do, through a system of government-run insurance. People who would prefer to stay on private insurance would be able to do so.

The elimination of the law’s financial penalty for going without health insurance has had little effect on how many people signed up for coverage through the law’s marketplaces. Enrollment in the marketplaces has decreased slightly since 2017, but it has not shown any signs of a “death spiral,” when only sick people buy coverage and costs skyrockets as a result. Whether the mandate was now unconstitutional or not, the balance of the law should stand. Congress never intended to doom the law by adjusting a monetary penalty as opposed to repealing it outright.

Chief Justice Roberts saying that adjusting the penalty while leaving the rest of the law in place was telling. The chief justice said during oral arguments: “It’s hard for you to argue that Congress intended the entire act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act.”

Justice Kavanaugh also said that the whole law was not tied to the fate of the mandate. The justice said that “it’s a very straightforward case for severability under our precedents.”

While there may be a surprise, it appears the ACA is most likely going to survive, which would be a major victory for the American air citizens.

Source: New York Times

Energy Companies Want Justices’ Climate Torts In Federal Court

A coalition of energy giants has asked the U.S. Supreme Court to take up a central issue in roughly 20 lawsuits seeking to make them responsible for climate change-related infrastructure damage: The question: Do the cases belong in state or federal court?

Chevron Corp., ExxonMobil Corp. and other major oil companies asked the court to expand the scope of appellate review of remand orders beyond the narrow parameters the Fourth Circuit said are acceptable in a climate suit brought by the city of Baltimore. These companies want the justices to rule on the underlying question of jurisdiction that has been raised in lawsuits across the country, after the Fourth, Ninth and Tenth circuits have rejected attempts by energy companies to keep the disputes out of state courts. The companies told the justices:

Given the number of climate-change cases pending across the nation, the court should confirm that this case and others like it were properly removed to federal court on the ground that federal common law necessarily governs claims alleging injury based on the contribution of interstate and international emissions to global climate change.

The Fourth Circuit said in March that Baltimore’s climate tort against the companies belongs in state court. It held it could only review a lower court’s remand order on “federal officer removal” grounds based on arguments the energy companies at times worked at the federal government’s behest.

Baltimore is represented by Victor M. Sher, Matthew K. Edling and Martin D. Quinones of Sher Edling LLP and Dana P. Moore and Suzanne Sangree of the Baltimore City Law Department.

The case is BP PLC et al. v. Mayor and City Council of Baltimore (case number 19-1189) in the Supreme Court of the United States.

Source: Law360.com

THE NATIONAL SCENE

Hate Crimes In The U.S. Rose To Highest Level In More Than A Decade In 2019

The FBI released a report on hate crimes on Monday, Nov. 16. Based on this report, it’s quite apparent that hate crimes have become a huge problem in the United States. The number of hate crimes rose to their highest level in more than a decade last year, while more murders motivated by hate were recorded than ever before.

There were 51 homicides driven by hatred last year, according to the FBI The sharp rise was attributed in large part to the mass shooting in El Paso in August 2019. In that shooting, the authorities say a 21-year-old gunman motivated by hatred toward Latinos stormed a Walmart and killed 23 people and injured many more.

The death toll in the El Paso attack more than doubled that of 2018’s deadliest hate-motivated crime, the mass shooting targeting Jews at the Tree of Life synagogue in Pittsburgh.

Overall, the FBI collected data on 7,314 criminal incidents motivated by bias toward race or ethnicity or gender identity in 2019. It was the third straight year the metric surpassed 7,100 incidents and it was the highest number since the FBI reported 7,783 incidents in 2008. Experts say the FBI data likely undercounts the number of hate crimes in America, both because many victims fail to report incidents and local agencies are not required to report hate crime data to the FBI

For example, last year only 2,172 agencies reported hate crime data to the FBI, out of a total of more than 15,000 law enforcement agencies around the country, according to the FBI’s report. (Notable omissions from the data in recent years have included the death of a protester in 2017 during a rally of white supremacists in Charlottesville, Virginia.) The Southern Poverty Law Center (SPLC), which tracks hate groups, says:

It’s important to note that, because of the nature of hate crime reporting, the FBI’s annual report vastly understates the real level of hate crimes in the country.

The SPLC noted that the rise in hate crimes in recent years has come as the number of white supremacy groups has surged. According to data collected by the SPLC, the number of white nationalist groups grew 55% between 2017 and 2019.

The upswing in hate crimes last year underscored the upward trend in bias-motivated crimes during the Trump era. The harsh rhetoric against Latino immigrants was seen as motivating the gunman in the El Paso shooting. “Politics plays a role,” said Brian Levin, a professor at California State University, San Bernardino, and the director of the university’s Center for the Study of Hate and Extremism. Dr. Levin added:

The president’s rhetoric has been identified in a series of actual attacks, but moreover the day-by-day ticks of FBI hate crimes shows there are increases after sustained and fervent remarks by the president that enter into an online feedback loop that also ends up in other discourses, both at the water cooler and on television.

The overall increase was fueled by a rise in attacks, in particular, against Hispanics and Jews. The FBI reported 953 anti-Semitic hate crimes last year, a 14% increase from the previous year and the most since 2008, according to a report by California State University, San Bernardino, that analyzed the latest FBI report and was published on Nov. 16.

Hate crimes directed at Latinos rose almost 9%, to 527 incidents last year from 485 incidents in 2018. At the same time, hate crimes against Black people fell to the lowest portion of all hate crimes since such data started to be collected by the FBI, although Black people were still far overrepresented in the statistics, according to Dr. Levin’s report. Last year, hate crimes targeting Black people fell slightly, by less than 1%. The report said: “Blacks are still the No. 1 target, at twice the level they represent in the American population.”

In examining preliminary data from 2020, Dr. Levin found overall declines in hate crimes, which he explained as a result of social distancing measures and business closures from the coronavirus pandemic, except in three cities: Los Angeles, Houston and San Antonio. He has also found increases in bias crimes this year against two groups in particular, transgender people and Asian-Americans; the latter, he said, was most likely affected by anti-Asian animus provoked by false claims about the pandemic.

Source: The New York Times

At Deadline Boy Scouts Sex Abuse Claims Surpass 88,000

The recent news relating to the Boy Scouts of America (BSA) was shocking. The BSA faced more than 88,500 claims of sexual abuse spanning decades as of the Nov. 16 deadline. That was the cut-off date to file for compensation as part of the Scouts’ Chapter 11 bankruptcy proceedings in Delaware.

The BSA has been working to establish a trust for compensating victims and a plan to reorganize. John Humphrey, chair of the victims’ committee, in a statement said:

Only one conclusion can be drawn from the number of claims filed: sexual abuse in Scouting is unprecedented and the remedies for victims must, likewise, be unprecedented. The Tort Claimants’ Committee is dedicated to doing everything in its power to remedy this terrible wrong. We are committed to working as long and hard as necessary to obtain compensation for all victims with legitimate claims.

The BSA said it would work with third-party advisers to review the claims, and the national organization would develop a reorganization plan to fund a proposed trust to compensate victims. The organization said in a statement:

We are devastated by the number of lives impacted by past abuse in Scouting and moved by the bravery of those who have come forward. We are heartbroken that we cannot undo their pain. We intentionally developed an open, accessible process to reach survivors and help them take an essential step toward receiving compensation. The response we have seen from survivors has been gut wrenching. We are deeply sorry.

BSA cited increasing numbers of lawsuits over sexual abuse as its reason for seeking Chapter 11 protection in Delaware in mid-February. At the time it proposed a long-term “mass-tort” victims’ compensation structure similar to those used for asbestos-related claims.

BSA, founded in 1910, had listed an estimated $1 billion in assets in its initial filing, but anticipated its total liabilities were somewhere between $500 million and $1 billion. It acknowledged that sexual predators sometimes used the organization to gain access to victims and estimated that 90% of the claims could involve conduct that allegedly occurred 30 or more years ago.

U.S. Bankruptcy Judge Laurie Selber Silverstein had set 5 p.m. Nov. 16 as the deadline to file sexual abuse claims against the national organization as part of its bankruptcy. In March, the U.S. trustee formed the victims’ committee, appointing nine former Scouts from across the U.S. and Guam who were sexually abused as children to represent the victims’ interest in the case.

The victims’ committee is working with the BSA to identify insurance policies for the national organization, the local councils and organizations sponsoring individual troops that could cover some of the victims’ compensation. The committee would also assess what assets the local councils might have.

The committee of tort claimants is represented by James I. Stang, John A. Morris, James E. O’Neill and John W. Lucas of Pachulski Stang Ziehl & Jones LLP. The Boy Scouts of America is represented by Derek C. Abbott, Andrew R. Remming, Eric W. Moats and Paige N. Topper of Morris Nichols Arsht & Tunnell LLP and Jessica C.K. Boelter, Michael C. Andolina and Matthew E. Linder of White & Case LLP.

The case is In re: Boy Scouts of America and Delaware BSA LLC (case number 1:20-bk-10343) in the U.S. Bankruptcy Court for the District of Delaware.

Source: Law360.com

THE WHISTLEBLOWER LITIGATION

Supreme Court Told FCA Circuit Split Poses ‘Far-Reaching’ Threat

There is a major circuit split on the “definition of fraud” under the False Claims Act (FCA). Prominent business lobbies are raising the issue before the U.S. Supreme Court in a closely watched case. In an amicus brief, the U.S. Chamber of Commerce and trade group Pharmaceutical Research and Manufacturers of America (PhRMA) said that circuit courts are “intractably divided” on the FCA’s scope and that the Supreme Court should review a recent Third Circuit decision that helped give rise to the split.

That decision and a subsequent certiorari petition are partially focused on whether the medical judgments of doctors can be false under the FCA, but also implicate a larger question about how to interpret the FCA’s prohibition of “false or fraudulent” billing claims, the amicus brief said. The Chamber and PhRMA wrote:

The decision [by the Third Circuit] deepens a circuit split on a question fundamental to False Claims Act liability – whether the statute requires a showing of objective falsity.

The Third Circuit held that a difference of opinion between a medical expert and treating physician is sufficient to create a triable issue of fact regarding FCA falsity. Courts are currently split as to whether medical expert testimony, alone, can prove a Defendant made a false statement, or whether such testimony only indicates a mere disagreement of clinical opinions.

The Third Circuit rejected Defendant’s assertions that billing claims must be objectively false. In this case, objective falsity would likely require a demonstration that certifications of hospice eligibility were tainted by kickbacks or were clearly dishonest. Instead, the Third Circuit found that claims can be “legally false” if they don’t satisfy statutory or regulatory requirements. Here, legal falsity would likely entail the use of expert testimony to convince a jury that doctors lacked a sound basis for diagnosing patients as terminally ill and therefore eligible for Medicare’s hospice benefit.

The brief noted that a few weeks after the Third Circuit’s decision, the Ninth Circuit handed down a similar ruling in an FCA case involving allegedly unnecessary hospital admissions, finding that “the FCA does not require a Plaintiff to plead an ‘objective falsehood.’” In contrast, “at least four circuits – including the Fourth, Seventh, Tenth and Eleventh circuits – have explicitly adopted an objective falsity standard in False Claims Act cases,” the Chamber and PhRMA wrote.

The decisions of the Third and Ninth circuits both involved FCA cases brought by whistleblower ex-employees, and the U.S. Department of Justice (DOJ) filed amicus briefs supporting the whistleblowers in both cases. The DOJ told the Third Circuit that an “‘objective falsehood’ requirement … has no basis in the text of the FCA,” and it told the Ninth Circuit that “the FCA is not restricted to ‘objective’ falsehoods.”

The FCA doesn’t define “false or fraudulent.” Although it’s generally agreed that common law should clarify disputes about the meaning of those words, courts and litigants have diverged on what the common law actually says.

Several health care groups filed a separate amicus brief also urging the Supreme Court to accept the case. The health care groups echoed the petition’s observation that the Third Circuit’s decision created a “square circuit split” because it broke with the Eleventh Circuit’s ruling, which said last year that a “mere difference of reasonable opinion” among doctors is insufficient to prove objectively false billing.

The case is Care Alternatives v. U.S. et al. ex rel. Druding et al., case number 20-371, in the Supreme Court of the United States.

If you need more information, contact Lance Gould, a lawyer in our Consumer Fraud & Commercial Litigation Section at 800-898-2034 or by email at Lance.Gould@beasleyallen.com. Lance is one of the lawyers handling whistleblower litigation for the firm.

Source: Law360.com

J&J Unit And A Private Equity Firm To Pay $11.5 Million Over FCA Claims

A Johnson & Johnson (J&J) unit and a private equity firm will pay a combined $11.5 million to settle False Claims Act (FCA) allegations in Pennsylvania federal court that a former J&J subsidiary had promoted a medical procedure for unapproved uses on children.

J&J unit Medical Device Business Services Inc. and The Gores Group have agreed to pay $10 million and $1.5 million, respectively, over claims that Therakos Inc. improperly marketed a cancer treatment for uses not approved by the U.S. Food and Drug Administration when J&J owned the company and after the investment firm bought it. U.S. Attorney William M. McSwain said in a statement:

While physicians are free to exercise their independent medical judgment to prescribe medications for uses beyond FDA approved indications, pharmaceutical and device companies cannot interfere with doctors’ judgment by allegedly pushing the sale of their drugs or devices for non-FDA approved uses, especially in vulnerable populations.

The purported misconduct occurred between 2006 and 2015, a period when then-J&J subsidiary Ortho-Clinical Diagnostics Inc. owned Therakos before it was sold to The Gores Group. The firm later sold the business to Mallinckrodt PLC.

The settlement resolves a qui tam action brought by former Therakos employees Frank Strobl and Michael Johnson. The whistleblowers will split more than $2.75 million under the settlement agreement. Brian J. McCormick Jr., one of the lawyers for the realtors, said in the statement:

This case is a testament to the powerful public interest served by a collaboration between government enforcement agencies and dedicated private citizens,” firm attorney. The False Claims Act worked as designed by returning much-needed taxpayer dollars to the U.S. Treasury and protecting our most vulnerable citizens, including children.

The Therakos systems at issue were used to perform extracorporeal photopheresis to treat a condition known as cutaneous T-cell lymphoma, prosecutors said. Therakos promoted the procedure for treating pediatric patients, even though the FDA had not approved that use.

The unlawful practice led to false claims being submitted to three federal health care programs: Medicaid, the Federal Employee Health Benefits Program and Tricare.

The government is represented by Assistant U.S. Attorneys Charlene Keller Fullmer and John T. Crutchlow. The relators are represented by Brian J. McCormick Jr. of Ross Feller Casey LLP.

The case is United States ex rel. Johnson et al. v. Therakos Inc. et al. (case number 12-cv-1454) in the U.S. District Court for the Eastern District of Pennsylvania.

Source: Law360.com

Medtronic USA Inc. Settles Kickbacks Case For $9 Million

Medtronic USA Inc. has agreed to pay more than $9 million to settle claims that the medical device manufacturer participated in a decade-long scheme to “funnel kickbacks to a neurosurgeon by footing the bill for lavish events at the Brazilian restaurant the doctor owns.”

The U.S. Department of Justice (DOJ) said it reached the settlement to resolve claims that Minnesota-based Medtronic paid kickbacks to Dr. Wilson Asfora, a neurosurgeon, by picking up an $87,000 tab for more than 100 social events at his Sioux Falls, South Dakota, restaurant in return for the doctor’s use of Medtronic’s infusion pumps during spinal surgeries. While Medtronic claimed the engagements at the Carnaval Brazilian Grill as educational events, the DOJ said they were purely social affairs for Dr. Asfora’s friends and business partners. The events consisted of alcohol and three-course meals being served without any mention of Medtronic products.

As part of the settlement, Medtronic will pay $8.1 million to resolve the False Claims Act claims and another $1.11 million to settle claims it violated the Open Payments Program for failing to properly report the payments to the Centers for Medicare & Medicaid Services. It was alleged:

The alleged scheme began as early as 2010, when Medtronic’s sales representatives in South Dakota ‘targeted’ Asfora to bolster sales of its implantable devices for medication delivery, prosecutors said. After learning from Asfora that business was slow at the Carnaval Brazilian Grill, the sales representatives agreed to pay for events at the restaurant against the company’s compliance policies, according to the court documents.

After the agreement, more than 130 events were held at Carnaval over the next decade, but none of them consisted of educational material related to Medtronic. The prosecutors stated:

The setting for these dinners was not appropriate for education or clinical discussion as attendees typically sat at a family-style table in an open area of Carnaval near the bar, with members of the public seated nearby.

Fraud continues to be a huge problem in many industries in this country. Our firm increased its whistleblower practice for this very reason with lawyers Lance Gould, Larry Golston, Paul Evans, Leslie Pescia, Leon Hampton, Tyner Helms and Lauren Miles working in this area known as “qui tam” cases. We recently obtained a $14 million verdict in Birmingham Federal Court dealing with a health care whistleblower issue and continue to pursue other cases throughout the country involving fraud on the government.

Source: Law360.com

The Beasley Allen Whistleblower Litigation Team

Again, there has been no slow-down in the False Claims Act (FCA) litigation. As predicted, the pandemic will cause this litigation to increase over the next few months. Lawyers on Beasley Allen’s Whistleblower Litigation Team continue to be hard at work handling cases under the 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 federal government, because of the pandemic, to increase greatly during the coming months. A combination of the national mishandling of the coronavirus pandemic and corporate greed will be the major factor.

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 Beasley Allen lawyers on the Whistleblower Litigation Team are 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, working with the Litigation Team. The lawyers on the team can be reached by phone at 800-898-2034.

BOEING LITIGATION UPDATE

Boeing 737 MAX Litigation Update

In March 2019, the Boeing 737 MAX was grounded worldwide shortly after Ethiopian Airlines flight 302 crashed. It was the second of two fatal MAX flights, crashing just five months after Lion Air flight 610. Investigators determined that the new flight control system, the maneuvering characteristics augmentation system (MCAS), malfunctioned, sparking similar chains of events in both flights that resulted in the tragedies.

The Federal Aviation Administration (FAA), which certified the plane for commercial flight, and the manufacturer Boeing have been highly criticized by global regulators and others for knowingly placing passengers on a dangerously designed plane. In August, the FAA announced its airworthiness directive, defining the steps necessary for the MAX to resume commercial service.

Since then, Boeing and the FAA orchestrated a series of publicity stunts using carefully prepared and upgraded aircraft in a strategically choreographed flight path as a way to try to show that the recent MCAS and flight control changes have remedied all the MAX defects.

For example, in September FAA head Stephen Dickson expressed his satisfaction with the changes after test-flying an updated MAX. In truth, the MAX remains a flawed aircraft that must rely on a properly functioning MCAS to compensate for its inherent instability and poor flight characteristics.

Finally, last month, despite the outcry from families of MAX crash victims, criticism of MAX pilots and others, the beleaguered and significantly weakened FAA was the first regulator worldwide to lift its ban on the MAX.

Regulatory agencies in Canada and Europe have also approved of the proposed changes to the aircraft and indicated they may be close to ungrounding the plane. Yet, European regulators are requiring Boeing to add a synthetic sensor “as an extra layer of protection.”

What we have learned:

After investigating the MAX tragedies and working with clients who lost family members in the flight 302 crash, including visiting the flight’s crash site several times, Mike Andrews, a lawyer in our firm’s Personal Injury & Products Liability Section, expressed dismay but not surprise over the FAA’s decision to lift the MAX ban. In reality, Mike views Boeing’s writing updated training manuals and flight procedures for the MAX’s return to flight as a very interesting development for the MAX litigation.

As the MAX saga has unfolded, Boeing has claimed that there is nothing wrong with the aircraft and that untrained pilots and pilot errors were responsible for the two MAX crashes. At the same time, Boeing acknowledged to Congress and in public reporting that the existence of the flawed MCAS was hidden from airlines and pilots so they were unaware of the system and how it could take over control of the aircraft. The design of the MCAS only utilized data from one angle of attack (AOA) sensor – a departure from applications on other aircraft that use two AOA sensors and a complete disregard for the danger that results from such a single-point failure.

During the 20 months the aircraft was grounded, results of a number of investigations, including a recently released Congressional investigation report, revealed similar findings. A common thread was that Boeing had a “culture of concealment” and rushed the defective aircraft to market despite objections of employees concerned about its safety. Internal emails and other damning documents reveal yet another example of how consumer safety is sacrificed for the sake of a company’s greed.

Earlier this year, Mike submitted comments to the FAA on behalf of the firm’s clients explaining that regardless of the changes to the aircraft, fundamentally, its aerodynamic design is flawed and nothing short of a full redesign can truly improve the aircraft’s safety. He also discussed the flawed oversight process stating that until full oversight authority is returned to the FAA, there is no way consumers can have confidence in the safety of new and significantly updated aircraft designs as much of the authority rests with the plane makers and therefore allows them to self-certify their products.

As demonstrated so clearly throughout the MAX litigation, a major hurdle in investigating and pursuing aviation litigation cases is the incestuous relationship between the FAA and aircraft manufacturers and the lengths to which both will go to hide information and drag out their own investigations and findings. There is hope that the new Biden administration will take aviation safety more seriously than the outgoing administration. But there are still major obstacles to improving aviation safety and oversight. Elaine Chao, current Secretary of Transportation and wife of powerful Kentucky Senator Mitch McConnell (who has been anti-consumer and a staunch advocate of protecting big business and approving judges with anti-consumer records) has done nothing to increase oversight of Boeing and other aviation companies. Instead, Secretary Chao has continued to allow the fox to guard the henhouse and rubber-stamp approval to their own flawed aircraft using the auspices of the FAA.

Pilots remain skeptical.

Pilot unions that have continued to criticize the MAX and Boeing’s push to return to flight have every right to be concerned. From the beginning, Boeing blamed the pilots, while hiding information from those pilots, while redesigning the MCAS, and while redesigning the flight manual and training for future pilots. Because the MAX is an inherently unstable aircraft and cannot fly reliably without the MCAS, Boeing cannot reasonably blame the pilots when they were unaware of information that was purposefully hidden from them. Such deception strikes at the heart of the trust and confidence pilots have placed in plane makers. Has Boeing earned back the trust of the pilots who fly its planes? Personally, I won’t fly on the Boeing 747 MAX and neither should any person who values their life.

Mike Andrews focuses much of his practice on aviation litigation. In addition to his Ethiopian Airlines crash clients, Mike has represented people seriously injured and the families of those killed in a variety of aviation crashes, in both civilian and military airplane crashes and helicopter crashes. If you have any questions or need more information on the Boeing matter, you can contact Mike at 800-898-2034 or by email at Mike.Andrews@beasleyallen.com.

Sources: The Washington Post and US News

PRODUCT LIABILITY UPDATE

What To Look For When Considering Sending A Product Liability Case To Beasley Allen

For more than 40 years, Beasley Allen has taken tremendous pride in representing Plaintiffs who deserve representation. More often than not, the clients that we represent are sent to us by referring attorneys, folks just like you, who think of our firm when they are approached by a client who was possibly the victim of a defect in a product. I use the word “possibly” intentionally. In order to determine whether there is a cause of action in product liability, the product liability lawyers at Beasley Allen must have the opportunity to inspect the injury-causing product. It is vital to our case investigation that the product is preserved to prevent crushing or alterations and, further, to preserve pertinent evidence. Once the inspection has occurred, we move forward with the facts and evidence and begin extensive research with industry-specific engineers to uncover what went wrong with the subject product.

You may be asking, “What should I look for if I want to send you a product liability case?” Although the answer can be very complex and specific to minute details within a given vehicle, industrial machine, or household item, a simple answer is you should look for someone who was using a product and while doing so, became a victim of a traumatic injury possibly due to a product defect.

Again, outside of most class action product liability cases, cases require an inspection, extensive research, and analysis by industry-specific engineers before a true understanding can be made on the defective nature of a product.

As such, if a client informs you that a loved one died in a single-vehicle accident, the criteria is met because an individual was traumatically injured while using a product. If the client is severely injured in a vehicular rollover accident, ejected while wearing a seat belt, or involved in a wreck due to sudden tire blowout, the criteria is met.

The examples are limitless and, unfortunately, cases are often missed. When these potential product liability cases are missed, manufacturers continue to supply their defective products to the public, further endangering us all.

If you have any questions or need more information you can contact Been Keen or Cole Portis at 800-898-2034 or by email at Ben.Keen@beasleyallen.com or Cole.Portis@beasleyallen.com. You can also contact Sloan Downes, Section Director, Personal Injury & Products Liability, at 800-898-2340 or by email at Sloan.Downes@beasleyallen.com. She will put you in touch with a Product Liability lawyer in the Section.

Court Adds $3.6 Million Interest To $2.9 Million Ford Injury Award

A Colorado appeals court has affirmed a $3.6 million interest award on top of a $2.9 million verdict in a suit alleging Ford’s defective car seat partly caused a motorist’s brain injury. The court said a decade of interest at annual rate of 9% is owed despite a years-long appellate process.

In an opinion, a three-judge Court of Appeals panel unanimously upheld a Boulder County judge’s decision to award Forrest Walker about $3.6 million in prejudgment interest in a suit alleging that Ford Motor Co.’s defective driver’s seat in his 1998 Ford Explorer caused him to suffer a traumatic brain injury and neck injuries when he was rear-ended by another motorist’s vehicle in 2009. After Walker settled his negligence claim against the other driver, the case proceeded to trial against Ford on his product liability claims.

Following the jury’s 2013 verdict in Walker’s favor and an award of approximately $2.92 million in damages, Ford successfully appealed and was given a new trial by the Court of Appeals in a 2015 decision that was affirmed by the Colorado Supreme Court in 2017.

After a February 2019 retrial, the jury again found in Walker’s favor and awarded him about $2.93 million in damages. The trial court later awarded prejudgment interest, under a Colorado statute, at a rate of 9% and spanning the 10 years since the 2009 collision, rejecting the auto company’s argument that a significantly lower postjudgment interest rate should be applied from the date of the first appeal.

The panel found that the trial court’s reasoning was sound because Colorado’s prejudgment interest statute governing personal injury cases, read as a whole, states that the prejudgment interest rate applies from the date of claim accrual to the date of the final judgment.

The appeals court said the lower postjudgment interest rate applies only when a money judgment is affirmed or modified by an appellate court and not when, as in the current case, the judgment is vacated. The panel said:

When the mandate issued after the supreme court overturned the first verdict and ordered a new trial, the first judgment ceased to exist. The effect of that reversal was to put the parties in the same posture they were in before the original judgment was entered on April 1, 2013. The panel said at that point the running interest vanished along with the judgment and was reset to the 2009 date of the crash. Ford and Walker were, at that time, free to proceed in any way they saw fit, including by settling the case. The parties chose to proceed again to trial, and the jury again awarded Walker nearly $3 million.

Plaintiff Walker is represented by Evan P. Banker of Chalat Hatten & Banker PC, and John A. Purvis and Michael J. Thomson of Purvis Gray Thomson LLP. The case is Forrest Walker v. Ford Motor Co. (case number 19CA1243) in the Colorado Court of Appeals.

Source: Law360.com

GM To Recall 7 Million Vehicles Globally To Replace Takata Air Bags

General Motors will recall about 7 million big pickup trucks and SUVs worldwide to replace potentially dangerous Takata air bag inflators. The announcement came on Nov. 23 after the U.S. government told the automaker it had to recall 6 million of the vehicles in the U.S.

GM had petitioned the Highway Traffic Safety Administration (NHTSA) four times since 2016 to avoid recalls, contending the air bag inflator canisters have been safe on the road and in testing. But the National the agency on Nov. 23 denied the petitions, saying the inflators still run the risk of exploding. Owners had complained to NHTSA that the company was placing profits over safety.

As we have previously reported, exploding Takata inflators caused the largest series of auto recalls in U.S. history, with at least 63 million inflators recalled. The U.S. government says that as of September, more than 11.1 million had not been fixed. About 100 million inflators have been recalled worldwide.

Takata used volatile ammonium nitrate to create a small explosion to fill air bags in a crash. But the chemical can deteriorate when exposed to heat and humidity, and the inflators can explode with too much pressure, blowing apart a metal canister and spewing shrapnel.

Twenty-seven people have been killed worldwide by the exploding inflators, including 18 in the U.S.

The decision by NHTSA is a major step in drawing the Takata saga to a close. According to NHTSA this means that all Takata ammonium nitrate inflators in the U.S. will be recalled. Earlier this year the agency decided against a recall of inflators with a moisture-absorbing chemical called a dessicant. NHTSA said it would monitor those inflators and take action if problems arise.

GM will recall full-size pickup trucks and SUVs from the 2007 through 2014 model years, including the Chevrolet Silverado 1500, 2500 and 3500 pickups. The Silverado is GM’s top-selling vehicle and the second-best selling vehicle in the U.S. Also covered are the Chevrolet Suburban, Tahoe and Avalanche, the Cadillac Escalade, GMC Sierra 1500, 2500 and 3500, and the GMC Yukon.

NHTSA said in a prepared statement that over the past four years analyzed all available data on the air bags, including engineering and statistical analyses, aging tests and field data. The agency said:

Based on this information and information provided to the petition’s public docket, NHTSA concluded that the GM inflators in question are at risk of the same type of explosion after long-term exposure to high heat and humidity as other recalled Takata inflators.

GM has 30 days to give NHTSA a proposed schedule for notifying vehicle owners and starting the recall. The automaker said that although it believes a recall isn’t warranted, it will abide by NHTSA’s decision. The company said the recalls will be phased in based on replacement inflator availability, and will cost $400 million this year.

Drivers can check to see if their vehicles have been recalled by going to https://www.nhtsa.gov/recalls and keying in their 17-digit vehicle identification number. The previous Takata recalls drove the Japanese company into bankruptcy and brought criminal charges against the company. Eventually the company was purchased by a Chinese-owned auto parts supplier.

Source: NHTSA.gov

Hyundai Preparing To Recall 77,000 Cars Equipped With LG Chem Batteries

It was reported last month that Hyundai was preparing to recall 77,000 Kona electric cars worldwide over the risk of a battery fire as the automaker is fighting with LG Chem, the battery supplier, over the cause. There have been at least a dozen Kona EV fires, sparking investigations into the batteries themselves. Official investigatory reports from Korea have placed blame on the battery cells, while another report is concluding that the problems stem from an issue with the battery pack.

The Kona utilizes a battery pack made of 57-60 battery cells. The assembly is a high-voltage battery system with five such battery packs plus a battery management system (BMS) and a cooling system.

The Kona EV’s battery pack is made by HL Green Power, a joint venture of Hyundai Mobis and LG Chem. LG Chem produces the battery cells and Hyundai Mobis assembles the battery packs. LG Chem denies that the cause could be the battery cells. Hyundai already confirmed a voluntary recall of more than 25,000 Kona EVs in Korea and the recall is now expected to be extended to over 77,000 electric vehicles worldwide, including in North America. As a result of checking the recalled vehicle after updating the BMS, Hyundai Motor Company plans to replace the battery immediately if any signs of battery abnormality such as excessive cell-to-cell voltage deviation or rapid temperature change are found.

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

Sources: Wheelsjoint.com; Electrek; and Bloomberg.com

Alliance Outdoor Products Recalls Climbing Treestands

Alliance Outdoor Products Inc., doing business as X-Stand Treestands, of Lakeville, Minnesota, has recalled about 3,400 XSCT334 Silent Adrenaline / XSCT355 Apache Climbing treestands. The cable assemblies on the treestand can separate due to corrosion, posing a fall hazard to the user. This recall involves 2017 model year X-Stand Climbing Treestand Silent Adrenaline XSCT334 and Apache XSCT355. The model is identified on the box and in the instruction manual. The treestands are made from lightweight aluminum, have a black nylon netting seat and padded arm rests and seat bar. The weight capacity is 300 pounds.

Treestands with a batch number located on the metal plate riveted to the stand that ends in “17” are included in the recall. The UPC code for the recalled stands is 816153011219 (Silent Adrenaline) and 816153011677 (Apache). The UPC code is located on the box.

The treestands were sold at Sportsman’s Guide stores (Silent Adrenaline treestands) and sporting goods stores (Apache treestands) nationwide and online at www.sportsmansguide.com and www.x-stand.com from May 2017 through December 2018 for between $200 and $230.

Consumers should immediately stop using the recalled climbing treestands and contact the company for instructions on receiving a refund in the form of a gift card. The company has received five reports of the treestand’s cable separating, resulting in two injuries involving fractures. You can call Alliance Outdoor Products toll-free at 877-886-2241 from 8 a.m. to 5 p.m. CT Monday through Friday, or visit the website at https://www.x-stand.com and click on “recalls” or visit https://www.x-stand.com/recall-notification/ for more information.

Source: CPSC.gov

THE JUUL LITIGATION

Update Of The JUUL Litigation

The JUUL litigation continues to move at a rapid pace across the country. Beasley Allen’s Joseph VanZandt serves on the Plaintiff Steering Committee (PSC) in the federal JUUL multidistrict litigation (MDL), where more than 1,200 cases are pending against 83 Defendants. To date, 1,025 personal injury cases and 141 government entity cases (including 103 school districts, 18 counties, one city, and 19 tribes) have been filed in the MDL.

In the California state court consolidated litigation, where Beasley Allen lawyer Beau Darley serves on the PSC, there are 66 government entity cases (including 64 school districts) and 204 personal injury cases brought on behalf of more than 2,400 individual personal injury Plaintiffs.

State attorneys general from 14 states have filed cases against JUUL, specifically: California, Illinois, Hawaii, New York, North Carolina, Mississippi, Minnesota, Washington D.C., Arizona, Pennsylvania, New Mexico, Massachusetts, Colorado and Washington.

As discussed further below, the Defendants filed motions to dismiss many of the claims brought against them in the MDL, but the federal judge overseeing the MDL overwhelming ruled in favor of Plaintiffs. Thus, the claims against JUUL and other co-Defendants are poised to move forward to discovery and trial. MDL lawyers expect to begin deposing current and former JUUL employees in December, and intensive discovery of JUUL’s conduct will continue into 2021. The bellwether selection process is underway, and case-specific discovery will begin in January 2021. U.S. District Judge William H. Orrick, the federal judge overseeing the MDL, has scheduled five bellwether trials starting February 2022.

JUUL Loses Motions To Dismiss And The MDL Cases Move On

On Oct. 23, Judge Orrick rejected efforts by JUUL Labs Inc. and Altria Group Inc. to have claims thrown out in the first wave of motions to dismiss in the JUUL multidistrict litigation (MDL). The judge validated a large portion of the JUUL MDL claims. He said the Plaintiffs accusing the companies of deceptively marketing vaporizers to hook kids on nicotine had adequately pleaded their cases, rejecting a host of arguments by JUUL and Altria as they sought early wins in the MDL. These rulings have major implications for the multibillion-dollar vaping industry.

Judge Orrick found that the complaints adequately claimed that JUUL’s conduct – such as targeted social media marketing and sale of mango- and mint-flavored products – “created and maintained an illicit youth market of school-age youth addicted to nicotine, causing extreme disruption in classrooms and unique harm to schools.” The negligence claims in the suits are similarly well-grounded, Judge Orrick said, finding they could show that JUUL’s “lack of reasonable care in the marketing and sales of JUUL” created an illicit youth market that left school districts scrambling to blunt the crisis.

In contrast, the judge rejected JUUL’s argument that the Plaintiffs were improperly stretching nuisance laws to cover claims against manufacturers over allegedly dangerous products. Rather, he said the claims allege “an ongoing and persistent deceptive marketing campaign and intentional targeting of youth” that saddled schools with costs they could have never anticipated.

However, Judge Orrick said that claims brought by consumers, local governments and school districts under the Racketeer Influenced and Corrupt Organizations (RICO) Act – which could have put JUUL on the hook for triple damages – didn’t pass legal muster. Though he found the RICO claims cleared several legal hurdles, he ruled that they were not specific enough, saying the “broad and undifferentiated allegations” didn’t paint a picture of a distinct enterprise that was separate and apart from JUUL’s business. But Judge Orlando said the Plaintiffs can amend their court filings and try to establish a RICO case. Beasley Allen is helping with efforts to amend the complaint with amendments to be filed within the timeframe the judge has given.

Aside from the federal court MDL, JUUL’s attempts to dismiss cases are being denied in state courts as well. In North Carolina, JUUL filed motions to dismiss the litigation, limit the damage it could be assessed, or postpone the trial currently set for May 2021. Judge Orlando Hudson denied those motions. North Carolina was the first state to sue JUUL over accusations that it targets underage youths with its products and then the ranks of the states across the country also filed a suit against JUUL.

These recent rulings largely in favor of Plaintiffs set the stage for their claims to survive more legal hurdles as the MDL continues to unfold. The cases will now move forward with key liability depositions.

The ruling on the first wave of motions in the MDL, consolidated in California federal court in October 2019, provided an initial test for novel applications of public nuisance laws in a product liability context. Judge Orrick found the case convincing, drawing on recent rulings in opioid epidemic litigation. He said the complaints adequately claimed that JUUL’s conduct – such as targeted social media marketing and sale of mango- and mint-flavored products – “created and maintained an illicit youth market of school-age youth addicted to nicotine, causing extreme disruption in classrooms and unique harm to schools.” He said:

The public nuisance claims alleged here are not as novel as [Juul] characterizes them to be; similar claims have been alleged in numerous opioid and gun manufacturer cases.

The costs of that effort ran the gamut from installation of e-cigarette detectors to educational initiatives and legal expenses tied to disciplinary hearings, according to the complaints. The government entities are also seeking damages for the cost of disposing of e-cigarette waste, combating JUUL’s alleged misinformation and developing nicotine cessation programs, among other things. Judge Orrick said:

This alleged conduct hooked millions of teenagers onto vaping with an addictive product that is easily concealed in schools, and foreseeably caused a multitude of problems for the school districts.

The consumers are represented by Sarah R. London of Lieff Cabraser Heimann & Bernstein LLP, Dena C. Sharp of Girard Sharp LLP, Dean Kawamoto of Keller Rohrback LLP, and Ellen Relkin of Weitz & Luxenberg. The government Plaintiffs are represented by lawyers from Beasley Allen, Goza & Honnold LLC, Wagstaff & Cartmell LLP, Miller Pitt Feldman & McAnally PC, Lynn Lynn Blackman & Manitsky PC, Robbins Geller Rudman Dowd LLP, Begley Carlin & Mandio LLP, Beggs & Lane RLLP, Migliaccio & Rathod LLP, Briscoe Ivester & Bazel LLP, Renne Public Law Group, Keller Rohrback LLP, and Gacovino Lake & Associates PC.

The MDL is In re: Juul Labs Inc. Marketing, Sales Practices and Products Liability Litigation (case number 3:19-md-02913) in the U.S. District Court for the Northern District of California.

If you have any questions, contact Soo Seok Yang, a lawyer in our Mass Torts Section, at 800-898-2034 or by email at SooSeok.Yang@beasleyallen.com. Soo Seok is one of the Beasley Allen lawyers handling JUUL cases.

Sources: Law360.com; JournalNow.com and Bloombergquint.com

AN UPDATE ON THE MASS TORTS SECTION AT BEASLEY ALLEN

The Mass Torts Section At Beasley Allen

I am writing a special feature for this issue on our firm’s Mass Torts Section. Lawyers in the section are privileged to represent individuals harmed by the pharmaceutical and medical device industries. We are proud to work with other lawyers and firms throughout the country to identify dangerous drugs and devices and help to remove them from the marketplace to protect future consumers, as well as secure justice for those injured by these products.

Andy Birchfield heads up this section, and he leads the firm’s efforts to represent thousands of Plaintiffs against Big Pharma, providing victim’s a voice against powerful corporations. There are three areas in particular this Section is focused on, involving both ongoing litigation and emerging new concerns.

Talcum Powder And Ovarian Cancer

Johnson & Johnson faces thousands of lawsuits alleging it knew its talcum powder products could cause cancer but failed to notify federal regulators or warn consumers. Since February 2016, Beasley Allen lawyers have partnered with other law firms across the country to try numerous cases of women alleging Johnson & Johnson’s talc caused their ovarian cancer. Our Talc Litigation Team has been privileged to represent thousands of women who developed ovarian cancer after using Johnson & Johnson talcum powder on their genitals for feminine hygiene and continues to investigate these cases regardless of the brand.

Our lawyers serve in a leadership role in this litigation. Leigh O’Dell is serving as Co-Lead Counsel for the consolidated multidistrict litigation (MDL) in New Jersey federal court. Leigh and her co-lead counsel are leading the charge for the more than 19,000 women and their families whose cases are pending in the MDL. Ted Meadows leads the Beasley Allen trial team in state court litigation. Litigation on behalf of five talcum powder Plaintiffs has resulted in verdicts totaling more than $841 million. Other members of the Talc Litigation Team are Kelli Alfreds, Ryan Beattie, Beau Darley, Liz Eiland, Jennifer Emmel, Jenna Fulk, Lauren James, James Lampkin, Caty O’Quinn, Cristina Rodriguez, Brittany Scott, Matt Teague, David Dearing and Margaret Thompson.

For more information, contact Ted Meadows, Leigh O’Dell or Melissa Prickett at 800-898-2034 or by email, Ted.Meadows@beasleyallen.com, Leigh.Odell@beasleyallen.com or Melissa.Prickett@beasleyallen.com.

JUUL

JUUL vaping devices splashed onto the market in 2015 with the stated mission of “improving the lives of the one billion adult smokers” on the planet. It claimed its primary mission was to help those already smoking traditional cigarettes and tobacco products to quit smoking. Instead, JUUL created a new generation of nicotine addicts through shrewd and aggressive social media campaigns, a clever and easily disguisable product design, and other business strategies that targeted U.S. teens and children.

The impact JUUL has had on U.S. public health is staggering. Recent studies have found that vaping among high school students doubled between 2017 and 2018 – the highest increase in smoking, drinking, and drug use ever recorded in the U.S. The surge in vaping among U.S. middle and high school students correlates directly with JUUL’s appearance on the market and its savvy youth-oriented marketing campaigns.

Beasley Allen is a leader in litigation against JUUL. Recognizing the critical threat to young people ensnared by nicotine addiction, and its effect on our nation’s educational system, our firm is joining other nationally recognized law firms to represent school districts and public entities in the fight to stop the school vaping crisis. On Oct. 7, 2019, Beasley Allen attorneys and co-counsel filed the nation’s first lawsuits against JUUL on behalf of school districts seeking to hold JUUL accountable for the youth vaping epidemic. Now, Beasley Allen represents more than 100 school districts from states all over the country.

These lawsuits accuse JUUL Labs of using deceptive marketing strategies that targeted youth, endangering them with nicotine-containing e-liquids, and leaving school officials to deal with the costs – in money, time, and resources – incurred by students who have become addicted to JUUL. Those who were first to file illustrate the types of complaints schools, school districts and administrators are bringing against the vape industry.

Beasley Allen continues to represent hundreds of individuals who have become addicted to JUUL or suffered other physical injuries from using JUUL. Lawyers on the firm’s JUUL Litigation Team are Joseph VanZandt, Sydney Everett, James Lampkin, Beau Darley, Soo Seok Yang, and Mass Torts Section Head Andy Birchfield

If you have a potential claim or need more information on JUUL, contact Joseph.VanZandt@beasleyallen.com, Sydney.Everett@beasleyallen.com or Melissa.Prickett@beasleyallen.com.

Belviq Cancer

An area of emerging litigation involves diet drug Belviq, which has been linked to an increased risk of cancer. Belviq was approved by the Food and Drug Administration (FDA) in June 2012 for long-term weight management in overweight and obese adults. On Feb. 13, 2020, the FDA called for the withdrawal of Belviq and Belviq XR (an extended release version approved in 2016) from the U.S. market because clinical trials showed that patients taking Belviq had an increased occurrence of cancer. Belviq and Belviq XR are manufactured by Eisai Inc.

Belviq contains the active drug ingredient lorcaserin, which works by activating the serotonin 2C receptor in the brain. This activation is thought to help a person feel full after eating smaller amounts of food and, as a result, eat less. Serotonin 2C receptor is the same appetite-controlling hormone targeted by fenfluramine, the “fen” in the notorious 1990s diet pill cocktail fen-phen. Fen-phen was pulled from the market in 1997 – less than 18 months after its approval – after being linked to potentially life-threatening heart valve problems in up to one in three patients treated with the drug.

Our lawyers are currently investigating cases of pancreatic cancer, colorectal cancer, and lung cancer in patients who have been treated with Belviq. Roger Smith and Ryan Duplechin are heading up this litigation. Contact them by phone at 800-898-2034 or email Roger.Smith@beasleyallen.com, Ryan.Duplechin@beasleyallen.com or Melissa.Prickett@beasleyallen.com.

Stryker Bone Cement Litigation Update

Stryker’s Simplex HV bone cement has been linked to increased rates of early knee implant failures. A recent study published in The Journal of Arthroplasty in June 2020 found that Stryker’s Simplex HV cement was associated with higher odds of revision due to aseptic loosening (implant loosening unrelated to infection) than low or medium viscosity bone cements. In fact, the odds of early revision in implants using Simplex HV bone cement were more than three times higher that Palacos, a competitor bone cement. High viscosity cements in general were associated with a doubling of the odds for early revision versus low- and medium-viscosity bone cements.

At least two case reports have been published in medical journals noting higher rates of aseptic loosening with high viscosity cements. Those case reports specifically noted the failure of the high viscosity cement to properly attach to the underside of the tibial baseplate portion of the implant as the cause of early aseptic loosening. While implant loosening can be expected over time, implants today are expected to last 20-25 years. We are seeing cases where implants are loosening within a few years of surgery, requiring our clients to undergo painful revision surgeries and rehabilitation.

Beasley Allen lawyers continue to actively litigate cases against Stryker and Osartis for the injuries related to Simplex HV in federal and state courts across the country. If you know of someone that has experienced an early failure of their knee implant due to implant loosening, we would like for you to share this information with them. We are happy to evaluate potential cases to see if viable claims exist against the bone cement manufacturer. For more information, contact Roger Smith, Ryan Duplechin, or Melissa Prickett, lawyers in our Mass Torts Section, at 800-898-2034, or by email at Roger.Smith@beasleyallen.com, Ryan.Duplechin@BeasleyAllen.com or Melissa.Prickett@BeasleyAllen.com.

Conclusion

Andy Birchfield does an excellent job of heading up this Section, assisted by Melissa Prickett, a lawyer in the Section who also serves as Section Director. Other lawyers in the Section are Tiffany Birley, David Byrne, Chad Cook, Seth Harding, Aigner Kolom, Paul May, Mary Cam Raybon, Chuck South, Navan Ward and Frank Woodson.

INSURANCE INDUSTRY LITIGATION

BCBS Litigation Update And Partial Settlement Of $2.67 Billion For Subscribers

Our firm is part of the leadership steering the antitrust class action litigation on behalf of hospitals, physicians and other health care providers that deal with Blue Cross Blue Shield (BCBS) companies throughout the nation, a case that is before Judge David Proctor in the United States Federal District Court for the Northern District of Alabama. Our case is set to be heard by the court on class certification this January. We are anxious to present our arguments for class treatment of this important case to Judge Proctor.

However, in the last few weeks in the Subscriber side of this antitrust litigation (policyholders), Blue Cross Blue Shield announced that it has tentatively agreed to a $2.67 billion class settlement fund and some anti-competitive practice reforms to settle the policyholder-side of the case. The Provider side of the case that Beasley Allen is in continues forward with litigation and class certification.

A memorandum in support of the Subscriber-side settlement deal filed by lawyers for Subscribers described the deal as “historic,” with far-reaching competitive benefits. The memorandum said:

The proposed settlement secures substantial injunctive relief that will reshape competition in the health insurance industry and offer increased choice to millions of Americans, coupled with one of the largest monetary recoveries ever achieved in an antitrust class action settlement.

The multidistrict litigation (MDL), opened in January 2013, accuses dozens of mostly nonprofit Blues of using trademarking and other practices, including limits on non-Blue revenues, to suppress competition. The MDL eventually grew to include more than 40 Plaintiffs’ groups nationwide.

Under the memorandum and settlement outline, $2.67 billion would be distributed through a fully insured damages class as well as a self-funded subclass.

Injunctions proposed under the agreement would eliminate a national cap on revenues permitted for Blues organizations, dubbed the “national best efforts” provision, that requires two-thirds of each member plan’s national health care-related revenue to come from “Blue-branded” services.

In addition, the agreement would eliminate some restraints on acquisitions by BCBS organizations, eliminate some direct-contracting restrictions and limit other practices giving preference to BCBS-related services.

Compliance would be monitored for five years by a committee that would include representatives of the insurers, classes and court. The case began in 2012 with actions against the BCBS Association and member plans accusing them of agreeing to “carve the United States into geographic exclusive service areas in which the other member plans could not compete” using BCBS names and trademarks.

Claims in the Alabama suit became a major factor in a 10-day trial in Delaware’s Chancery Court in 2019 over the collapse in 2017 of a $54 billion merger of Cigna Corp. and Anthem Inc., the nation’s largest Blue Cross company. Vice Chancellor J. Travis Laster found earlier this year that neither company can recover on claims for billions in damages from the busted deal.

The Anthem-Cigna tie-up, agreed to in 2015, degenerated in part into a battle for executive control of the merged entity. Those disputes were complicated by doubts about Anthem’s ability to complete the transaction without violating Anthem’s obligation to assure that at least two-thirds of the combined company’s revenues were generated through Blue Cross Blue Shield brands.

While statements regarding a pending settlement are typically discouraged until final approval, statements issued in the wake of the deal by individual groups carried similar responses, including one issued by the BCBS of Tennessee: “We reject claims Plaintiffs made in the lawsuit. However, to reach a settlement, we have agreed to make some operational changes and provide payment to members of the class involved in the case. Settling now is the right action at the right time because it allows us to remain focused on the goal we have had for more than 90 years: improving access to quality health care for all Americans and the health of our local communities.”

Again, this settlement does not resolve the case the Providers have brought against BCBS, which involves a tremendous amount of alleged damages resulting from monopolistic market conduct that suppressed fair and reasonable reimbursement rates to doctors, hospitals and other health care providers. Our Provider class seeks relief for years of alleged “take it or leave it” price reimbursements forced on Providers by the “Blues” that were controlling the health care marketplace in places like Alabama with a 90% plus share of the market. The antitrust laws were designed to specifically address this type of what some refer to as a “bully in the market” scenario. Dee Miles, head of our firm’s Consumer Fraud & Commercial Litigation Section, is one of the lead lawyers in this Provider side of litigation.

Beasley Allen looks forward to being a part of the solution for our Provider clients and continue on with proving the antitrust class case before Judge Proctor. We will continue to update our readers on the progress of this extremely important litigation. Stay tuned!

An Update On Business Interruption Insurance Litigation

On July 30, the Judicial Panel on Multidistrict Litigation (JPML or Panel) denied the centralization of industry-wide business interruption claims, but directed the issuance of show-cause orders related to five individual insurers: The Hartford, Cincinnati Insurance Co., Certain Underwriters at Lloyd’s of London, Society Insurance Co., and certain Travelers Defendants. The JPML signaled that it may still be open to the creation of smaller MDLs to centralize actions against specific insurers facing high volumes of cases.

At the September JPML hearing, the Panel heard argument from proponents and opponents to centralization for each of the five insurers. Ultimately, on Oct. 2, the Panel denied centralization as to all individual companies except Society. In creating an MDL for Society cases, the JMPL centralized more than 30 lawsuits accusing Society of wrongfully denying coverage for businesses’ losses during the COVID-19 pandemic. The cases were centralized before U.S. District Judge Edmond E. Change of the Northern District of Illinois.

In centralizing cases against Society and denying the centralization of cases against all other insurers, the Panel emphasized “What sets this litigation apart is the defined geographical scope of these actions, which implicates only six state insurance laws.” It added that Judge Chang can address potential differences among the cases by using “any number of pretrial techniques,” to include establishing “state-specific tracks” for actions pending in the same state, or a bellwether process to decide key common issues.

To the contrary, the JPML noted the sheer number and geographic scope of the cases involving Hartford, Cincinnati, and Travelers weighed against centralization; each of those insurers is facing cases in district courts spread across 15 or more states. As for the Lloyd’s underwriters, the JPML said it would not make sense to centralize the cases against them because they are not a single insurance company, but rather a group of several dozen distinct insurers whose policies may differ significantly.

In lieu of centralization, the Panel encouraged the parties in the cases involving Hartford, Cincinnati, Travelers, and the Lloyd’s underwriters to engage in “informal cooperation and coordination” to avoid duplicative pretrial proceedings. Beasley Allen lawyers who are representing Plaintiffs in several cases against these insurers have been diligent in filing consolidation motions in courts where Beasley Allen cases are pending with another Plaintiff against the same insurer.

As for the progress of individual cases, a trend among court orders has emerged requiring Plaintiffs to adequately allege direct physical loss to their insured premises, which is a pre-requisite to coverage. Courts in several jurisdictions have granted summary judgment to insurers or dismissed complaints finding policyholders failed to adequately allege direct physical loss to their business from COVID-19. In other cases, in which courts have held that policyholders did adequately allege that they suffered a direct physical loss, motions to dismiss have been denied and policyholders have been permitted to proceed to discovery. The question to be answered is in the context of the coverage, which defines “physical injury.”

As the COVID-19 pandemic continues, more states are introducing proposed bills mandating coverage for business interruption. California, Louisiana, Massachusetts, Michigan, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, South Carolina and the District of Columbia introduced such legislation that generally requires carriers insuring against loss or damage to property to cover business interruption during a declared state of emergency due to COVID-19, even if an exclusion applies. To date, none of the bills have been passed and became law, but if they are, it is likely they will face constitutional challenges for violating the contracts clause, due process clause, and takings clause.

Beasley Allen lawyers continue to monitor the development of these cases and proposed legislation. Dee Miles, head of our Consumer Fraud & Commercial Litigation Section, Rachel Boyd and Paul Evans are spearheading the litigation of business interruption litigation for our firm and monitoring any MDL developments that arise. You can contact them at Dee.Miles@beasleyallen.com, Rachel.Boyd@beasleyallen.com, or Paul.Evans@beasleyallen.com if you have any questions or would like to discuss potential claims.

Sources: Order denying transfer, In re: Travelers Covid-19 Business Interruption Protection Ins. Litig., MDL No. 2965 (Oct. 2, 2020); Order denying transfer, In re: Hartford Covid-19 Business Interruption Protection Ins. Litig., MDL No. 2963 (Oct. 2, 2020); Order denying transfer, In re: Certain Underwriters at Lloyd’s, London, Covid-19 Business Interruption Protection Ins. Litig., MDL No. 2961 (Oct. 2, 2020); Order denying transfer, In re: Cincinnati Ins. Co. Covid-19 Business Interruption Protection Ins. Litig., MDL No. 2965 (Oct. 2, 2020); Transfer Order, In re: Society Ins. Co. Covid-19 Business Interruption Protection Ins. Litig., MDL No. 2964 (Oct. 2, 2020) and Law360.com

EMPLOYMENT AND FLSA LITIGATION

Los Angeles Times and Tribune Publishing Settle Discrimination Lawsuit

The Los Angeles Times and Tribune Publishing have agreed to pay $3 million to resolve a class action lawsuit accusing the Times of paying female and minority newsroom employees less than their white male counterparts. The lawsuit was filed in San Bernardino Superior Court of California in June. The Court gave preliminary approval to the proposed settlement and certified a class of nearly 240 current and former reporters and editors to split approximately $1.9 million.

Under the settlement, Times’ newsroom employees who are female, Black, Hispanic or Latino and have worked for the newspaper at some point between February 2015 and the present could receive a portion of the $1.9 million, and $1 million of the award will go toward attorney fees, according to court papers.

The suit alleged that the Times and Tribune violated California law by paying female and minority journalists thousands of dollars less each year than their white male colleagues. The complaint said the companies “fostered a culture of secrecy” surrounding pay practices and relegated salary decisions to a small circle of decision-makers. The complaint said:

During these times of financial struggle and uncertainty, Defendants placed these economic burdens mainly on the shoulders of female and minority employees, who accepted lowball starting salaries for the opportunity to advance at the prestigious paper or suffered through years without any raises even after contributing to Pulitzer Prize-winning work.

This is just one example of labor and wage abuses that occur every day in our country. Our firm has been front and center on these issues for many years and we continue to dedicate a portion of our law practice to helping victims of labor law abuses. For more information contact Lance Gould or Larry Golston, our lead labor lawyers, at 800-898-2034 or by email at Lance.Gould@beasleyallen.com or Larry.Golston@beasleyallen.com.

Source: Law360.com

PREMISES LIABILITY LITIGATION

The Rise Of Gun Violence And How It Affects Negligent Security Cases

Gun violence has been an increasingly dangerous problem that neighborhoods, schools, cities and America in general have had to combat over the years. With the huge increase of gun violence, there has also been an increase in gun sales. In 2020 alone, there have been several reports that the FBI’s National Instant Criminal Background Check System office has processed more than 16 million background check applications for gun permits, which sets a record since statistics started being recorded in 1998.[1] As a result of the increase in gun violence, there is a corresponding increase in victims of gun violence.

A negligent security case is a type of premises liability involving a crime being committed by a third-party assailant that causes serious injury or death to a person when a property owner fails to take reasonable measures to prevent said criminal activity. While acts of violence can occur anywhere, property owners have a duty to provide security measures that adequately protect guests on their own property (i.e., apartment complex, bar, shopping mall, etc.). In order to hold property owners accountable, courts typically will determine whether a property owner knew or should have known risks based on prior crimes in and around the same location and whether the property owner neglected to provide adequate security measures to prevent these foreseeable crimes.

In various cities across the country, the increase of crime often can lead to the increase of foreseeability for property owners. If crimes such as sexual assaults, shootings or robberies repeatedly occur on or near a property owner’s premises, property owners are or should be aware of such crimes and a court will likely determine that the risks of harm to invitees on the property were foreseeable to the property owner and that they should be held liable for any resulting injuries or damages.

For example, in Metro Atlanta, there have been at least 10 shootings at various commercial properties (e.g., a late-night shooting that left a security guard dead[2]; a man killed outside of a Goodwill[3]; woman shot and killed at an apartment[4]).

If you are handling a shooting case against an apartment complex owner, these types of crimes, if they occurred on or near the subject premises, can be used during discovery to establish a property owner’s knowledge of prior substantially similar crimes. This will demonstrate that it is foreseeable to the property owner that this type of crime would or could have happened and, thus, the property owner would have the duty to provide adequate security measures to prevent the subject shooting from occurring.

For more information relating these types of cases, contact Parker Miller or Donovan Potter, lawyers in our Atlanta office, at 800-898-2034 or by email at Parker.Miller@beasleyallen.com or Donovan.Potter@beasleyallen.com. Parker and Donovan handle premises liability claims for Beasley Allen clients.

WORKPLACE HAZARDS

Workplace Safety: Isolating Energy-Lock Out Tag Out

Untold numbers of on-the-job injuries and deaths could be avoided through properly isolating hazardous energy. Lock out tag out (LOTO) is a common practice used in industrial settings and is intended to reduce the risk of injury due to machinery or equipment starting unexpectedly. OSHA, or the Occupational Safety and Health Administration, is very specific regarding lockout/tagout procedures. The requirements of the Control of Hazardous Energy can be found in Title 29 Code of Federal Regulations (CFR) Part 1910.147.

The lockout/tagout procedures set forth establish the employer’s responsibility to protect workers from hazardous energy. Employers are also required to train each worker to ensure that they know, understand, and are able to follow the applicable provisions of the hazardous energy control procedures. Failure to enact or enforce lockout/tagout procedures are some of the most commonly cited OSHA violations in the industrial setting.

More importantly, failure to properly enact and enforce lockout/tagout procedures can lead to serious injury and death. Failure to control hazardous energy accounts for nearly 10% of the serious accidents in industry according to OSHA.

OSHA defines lockout/tagout as a specific practice and procedure to safeguard employees from the unexpected energization or startup of machinery and equipment, or the release of hazardous energy during service or maintenance activities. The first step in setting lockout/tagout procedures is identifying hazardous energy sources.

Hazardous energy sources can take many forms. The most common are electrical, mechanical, hydraulic, pneumatic, chemical, thermal or other sources that can cause machines and equipment to move. Once the hazardous energy source has been identified, it is imperative to set a plan of action to de-energize and mitigate that hazard.

Specifically, OSHA requires three things that an employer must do as part of an energy-control plan.

  • The employer must establish energy control procedures for removing the energy supply from machines and for putting appropriate lockout/tagout devices on the energy-isolating devices to prevent unexpected reenergization. This requires that the machinery or equipment is disconnected from the energy source by isolating the energy to prevent the release of hazardous energy. Lockout devices hold energy-isolation devices in a safe or off position. The devices are positive restraints that can only be removed with a key or unlocking mechanism.
  • The employer must train employees on the energy-control program, including the safe application, use and removal of energy controls.
  • The employer must inspect these procedures at least once per year to ensure that they are being followed and that they remain effective in preventing employees’ exposure to hazardous energy.

All employers requiring employees to work around energized equipment should follow OSHA guidelines for lockout/tagout to ensure the safety of their employees. If that is not enough incentive, OSHA citations and fines are another motivating force. OSHA fines for failing to follow lockout/tagout can range from minor warnings, all the way to criminal charges and major fines.

For example, OSHA may cite an employer for a “de minimis” violation if it is found that an OSHA regulation is violated, but it does not directly impact safety. A de minimis violation does not come with a fine, or even a written citation. Typically, an OSHA inspector that notes de minimis violations will simply inform the employer.

The next level of citation is the “other than serious” violation. This is an unsafe condition that has little chance to cause harm or injury. These will often result in written warnings.

The next rung on the OSHA citation ladder is a “serious violation.” When an OSHA inspector notes a violation of a specific OSHA standard and considers the violation to possibly lead to harm or death, the citation is noted as serious and the fine can be up to $70,000 depending on how egregious the violation is.

Finally, there are repeated serious violations and willful violations at the top end of the spectrum. Willful lockout/tagout violations can lead to fines between $250,000-$500,000 and potentially even result in criminal charges.

Employers have an obligation to understand the OSHA regulations regarding hazardous energy control and lockout/tagout. If they fail to follow these standards, they can be subject to serious fines, criminal penalties, and loss of human life.

If you have any questions, contact Evan Allen, a lawyer in our Personal Injury & Products Liability Section, at 800-898-2034 or by email at Evan.Allen@beasleyallen.com. Evan, who is now in our Mobile office, handles workplace litigation nationwide involving serious injuries and death for the firm.

Source: OSHA.gov

Jury Awards $4 Million In Injury Suit Over Fallen Machine In Texas

A Texas federal court jury has awarded a road worker $4.05 million in an in-person trial over a life-altering leg injury from a fallen piece of heavy machinery made by Asphalt Zipper Inc. The jury found for Chuck Pruitt, a former worker for Falls County Road and Bridge Department. Pruitt’s leg was crushed on Sept. 17, 2018, when a 2,300-pound water system that attaches to a front loader to assist in asphalt pulverizing fell over on the worker while not in use. The jury found:

  • That there was a design defect in the water system frame when it left Asphalt Zipper’s care,
  • That there was a defect in the product instructions provided by Asphalt Zipper,
  • That Asphalt Zipper was not negligent regarding the instructions, and
  • That Pruitt was not negligent in the accident.

The jury awarded $1.34 million for future loss of earnings, $1 million for future physical pain, $925,000 for future physical impairment, $425,000 for future medical expenses, $125,000 for past medical expenses, $75,000 for past physical pain, $60,000 for past loss of earnings, $50,000 for past mental anguish and $50,000 for past physical impairment. Pruitt had several surgeries and was never medically cleared to return to his road and bridge work.

The water system frame “is really heavy because it also acts as a load leveler for the front-end loader,” Muhammed Aziz, Pruitt’s lawyer, told Law360. Aziz said that the design was defective because the frame’s legs are made of a softer metal, but the attachment pins that interact with them are made of a harder metal, making it foreseeably likely that the softer metal legs will deform over time. A safer alternative design was available at the time.

During the trial, Asphalt Zipper made this contention, which was rejected by the court and the jury:

The water system was stable and safe as manufactured … at the time it was sold and delivered to Falls County but was later damaged through improper use by Falls County personnel.

U.S. District Judge Alan Albright limited the trial time to six hours for each side and partially sequestered the jury, preventing them from leaving the courthouse for the duration of each trial day.

Plaintiff Pruitt is represented by Muhammad Aziz and Karl Long of Abraham Watkins Nichols Sorrels Agosto & Aziz. The case is Pruitt v. Asphalt Zipper (case number 6:18-cv-00324) in the U.S. District Court for the Western District of Texas.

Source: Law360.com

AN UPDATE ON MOTOR VEHICLE LITIGATION

An Important Decision By The Georgia Supreme Court In Quynn v. Hulsey

The Georgia Supreme Court has overturned a trial judgment by changing the law of Georgia to permit a Plaintiff to pursue claims of negligent entrustment, hiring, training, supervision, and retention even when the conduct giving rise to those claims does not rise to the level necessary to pursue punitive damages. Previously, under the respondeat superior rule, the Defendant would be entitled to summary judgment on those direct claims of negligence if a Defendant conceded that it would be vicariously liable. The Plaintiff’s only opportunity to pursue those claims in that situation was to present a valid claim for punitive damages against the employer for their own independent negligence.

This decision allows separate claims for negligent hiring, retention and entrustment even when punitive damages are not in play. The court held that these direct claims of negligence are based on the alleged negligent acts of the employer and, therefore, “adherence to the respondeat superior rule would preclude the jury from apportioning fault to the employer for negligent entrustment, hiring, training, supervision and retention.” In finality, it held that the respondeat superior rule has been abrogated by the Apportionment Statute found at OCGA § 51-12-33 because said statute requires the fault of all parties to be considered by the jury.

Beasley Allen lawyers in our Atlanta office applaud the analysis and ruling of the Georgia Supreme Court in this situation. All too often, Defendants would admit vicarious liability of their employee simply to prevent the jury from hearing about the egregious conduct they had in allowing the accident to occur in the first place. Many times, they would claim that the Plaintiff contributed to their own injuries, which the jury did hear about, and prior law hid the conduct of the employer. This created an injustice in that the jury only heard part of the story. This decision will right this wrong and permit the jury to hear the entirety of the relevant evidence necessary to decide the case. Justice Ellington authored the opinion for a majority of the court.

Lawyers in our firm’s Atlanta office handle trucking cases throughout Georgia. Our lawyers currently have a number of tractor trailer wreck cases where this opinion will directly impact the way the case is presented to the jury. Beasley Allen lawyers would appreciate the opportunity to team up with other lawyers on tractor trailer wreck cases. If you need more information or would like to discuss a case contact Chris Glover, the lawyer who heads up our Atlanta office, at 800-898-2034 or by email at Chris.Glover@beasleyallen.com.

A Renewed Look At Cab Guard Litigation

Recently, a safety regulator in Canada reviewed our firm’s efforts to expose the safety defects in cab guards. Tim Birkett, an Occupational Safety Officer in Prevention Field Services for WorkSafeBC, thanked Beasley Allen for the information our website provided about the ineffective and dangerous nature of these devices. LaBarron Boone, a lawyer in our Personal Injury and Products Liability Section who handles cases involving cab guards, was contacted by Mr. Birkett.

One of LaBarron’s cases resulted in a cab guard manufacturer, Merritt Equipment Co. (Merritt) being forced to explicitly warn the public that its cab guard, marketed as a safety device, would not protect a truck driver in the cab from being injured or killed by forward shifting cargo. In fact, testing that LaBarron commissioned on the cab guard revealed, to his shock, that just one log would break the cab guard, leaving the driver exposed to serious injury or death.

Cab guards were inspired by streetcar fenders and railcar guards, but U.S. patent records show the current design in use wasn’t approved until 1960. The shiny, metal pieces positioned behind the cab of almost every log truck in the United States are purchased with the belief the guards will protect cab occupants from cargo shifting forward and crushing a driver’s cab during a crash.

The devices began to grow in popularity in the 1970s and 1980s when the federal government and other interested parties began evaluating the cause and effect of heavy truck crashes. The Federal Motor Carrier Safety Administration (FMCSA) and the Society of Automotive Engineers soon mandated cab guards be installed on the back of large trucks. But they provided minimum manufacturing standards. This left implementation and compliance with safety requirements up to trucking companies. That diminished the effectiveness of even the minimal standards.

Between 1990 and 1993, New York witnessed nine cargo securement accidents with three fatalities, prompting congressional hearings and the creation of the North American Load Security Research Project. According to the Federal Register, the project was charged “to revise the regulations concerning protection against shifting and falling cargo for commercial motor vehicles engaged in interstate commerce.” Despite the revision, the current design using weak aluminum remains inadequate.

Beasley Allen lawyers, led by LaBarron and Ben Baker, have handled eight defective cab guard cases against three different cab guard manufacturers. A majority of these cases were settled before going to trial. Each case involved a life tragically lost due to a combination of corporate greed and inadequate regulation. Through litigation, Beasley Allen lawyers have been able to shed light on the history of deception within the cab guard manufacturing industry.

For example, during cross-examination by LaBarron, an expert witness for manufacturer Road Gear admitted that cab guards on log trailers were not safe. This admission led to a label change on the product in 2005. Similarly, in 2017, Merritt’s design expert during cross-examination in Albritton v. Merritt admitted the cab guard would not protect a log truck operator from one log let alone protect them against a full load of logs or approximately 55,000 pounds.

Merritt now warns against cab guard use on log or pole trailers. The company further warns that the cab guard “is NOT A SAFETY DEVICE [sic] and will NOT PREVENT SERIOUS INJURY or DEATH [sic] from forward shifting cargo as a result of an accident or impairment.” However, there is no indication the warning is actually passed on to the trucking companies or drivers. Neither does the warning address the hundreds of thousands of cab guards sold before 2005.

The warnings are definitely a welcomed step in the right direction for protecting unsuspecting log truck drivers who believe the cab guards make them safe. But the warnings don’t go nearly far enough. The public remains largely unaware of the dangers of the defective products, and the manufacturers continue to place profit over protection.

For more information about cab guards and heavy truck accidents, contact LaBarron Boone or Ben Baker, lawyers in our Personal Injury & Products Liability Section, at 800-898-2034 or by email at LaBarron.Boone@beasleyallen.com or Ben.Baker@beasleyallen.com.

Source: Federal Register

Growing Number Of Recalled Toyota And Lexus Vehicles

The number of vehicles recalled by Toyota due to a defective fuel pump continues growing. The carmaker recently added another 1.5 million U.S. vehicles to the recall list, bringing the total to 5.8 million since the initial 700,000 in January, according to the Associated Press. The recall includes both Toyota and Lexus brand vehicles that are equipped with fuel pumps that can fail and cause engine hesitation, power loss and complete shutdown.

Shortly after the recall commenced, Beasley Allen lawyers filed a lawsuit on behalf of Sharon Cheng, who alleges the recall does not cover all vehicles equipped with the same defective fuel pump. Particularly, the recall does not cover Hybrid versions of the vehicles, even though Toyota acknowledged these vehicles are equipped with the same defective fuel pump.

The defective fuel pump contains a plastic impeller that is prone to excessive fuel absorption leading to deformation. When the impeller becomes deformed, it contacts the fuel pump’s casing and binds, which creates a fuel starvation issue that directly impedes vehicle performance. Specifically, drivers complain of diminished acceleration capabilities. In some cases, there is a complete engine shut down.

The most recent additions to the recall include the 2019 and 2020 RAV4; the 2013 to 2015 Lexus LS 460 and GS 350; the 2014 Toyota FJ Cruiser and Lexus IS-F; the 2014 and 2015 Toyota 4Runner and Land Cruiser; the 2014 and 2015 Lexus GX 460, IS 350, LX 570; the 2015 Lexus NX 200t and RC 350; the 2017 Lexus IS 200t, RC 200t and GS 200t; the 2017 to 2019 Toyota Highlander and Lexus GS 350; the 2017 through 2020 Toyota Sienna and Lexus RX 350; the 2018 and 2019 Toyota 4Runner, Land Cruiser, Lexus GS 300, GX 460, IS 300, IS 350, LS 500h, LX 570, NX 300, RC 300, RC 350; the 2018 through 2020 Toyota Avalon, Camry, Corolla, Sequoia, Tacoma, Tundra and Lexus ES 350, LC 500, LC 500h, LS 500, RX 350L; and the 2019 Toyota Corolla Hatchback and Lexus UX 200.

If you would like more information on the recalls or the lawsuit our firm filed, contact Clay Barnett or Mitch Williams, lawyers in our firm, at 800-898-2034 or by email at Clay.Barnett@beasleyallen.com or Mitch.Williams@beasleyallen.com.

Sources: https://wtop.com/recalls/2020/10/toyota-adds-1-5m-vehicles-to-us-recall-for-engine-stalling/

Ford Will Repair Trucks’ Faulty Exhaust Systems

Ford Motor Co. has agreed to offer repairs and reimbursement to drivers to end a proposed class suit in Michigan federal court alleging it sold Ford Explorer trucks with defective exhaust systems that leaked fumes into the vehicles’ cabins. Named Plaintiffs Suresh Persad, Daniel G. Wright and Robert S. Drummond asked the court for preliminary approval in a motion. Ford has filed a response in support of that motion.

The named Plaintiffs filed suit in August 2017, alleging that Ford became aware of the defect after consumer complaints, and while it issued internal technical service bulletins on how to fix the defect, it did not notify owners and lessees of the vehicles until after the suit was filed.

In their motion, Persad, Wright and Drummond asked to represent a settlement class of all U.S. owners or lessees of 2016 and 2017 Ford Explorers, except for Police Interceptor models. Under the settlement agreement:

Ford will send notice to class members alerting them to the availability of repairs of the defect, including the installation of a modified exhaust system and the sealing of gaps in the passenger compartment. Class members will also be eligible for cash payments to partially reimburse post-warranty repairs if those repairs happened within four years or 48,000 miles after the vehicle was put into service, or within 120 days after the class notice is completed.

Class members can receive up to $125 for costs of inspection and sealing gaps and up to $400 for installation of the modified exhaust system, according to the motion. As part of the deal, class counsel will request up to $3.5 million in fees and costs, while the named Plaintiffs will ask for a service award of $30,000 split evenly among them.

The proposed class is represented by Joseph H. Meltzer, Ethan J. Barlieb and Natalie Lesser of Kessler Topaz Meltzer & Check LLP and E. Powell Miller, Sharon S. Almonrode and William Kalas of The Miller Law Firm PC. The case is Persad et al. v. Ford Motor Co. (case number 2:17-cv-12599) in the U.S. District Court for the Eastern District of Michigan.

Source: Law360.com

TOXIC TORT LITIGATION

New PCB Contamination Suit Filed Against Bayer Entity

New Hampshire has filed a new lawsuit in state court accusing a Bayer AG entity of concealing the toxicity of polychlorinated biphenyls (PCBs) to keep profits high. In the case the state seeks damages for the harm the substance caused to the state’s waterways, fish and other natural resources.

In the suit filed, New Hampshire accused the company of making PCBs well into the 1970s despite understanding the health risks they posed decades before. Now, New Hampshire says it grasps the full extent of the contamination and wants Monsanto to pay to clean it up. New Hampshire said in its complaint:

Despite its extensive knowledge of the true damages of PCBs, Old Monsanto failed to timely alert regulators and the public of the dangers of its PCBs, and did not take adequate steps to stave off the impending environmental disaster, all to shield its sales, profits and reputation.

In June, Bayer AG, which acquired Monsanto in 2018, agreed to pay $820 million to settle claims brought by the city of Long Beach, California, and a number of other local governments that say they face increased costs due to Monsanto’s contamination of waterways.

New Hampshire says in its new suit that the potential health impacts from PCBs range from cancer to thyroid issues and low birth weights. PCBs were used in a slew of products from caulking to lubricants and the substance eventually leached from the products and contaminated the environment, and can also accumulate in species such as fish, the state claims.

As a result, New Hampshire says PCBs have contaminated more than 60,000 acres of water. In some areas, fish can’t be caught and eaten. And the presence of PCBs means the state must pay to monitor and enforce water quality limits for PCBs under the Clean Water Act. Remediation costs are also a burden, according to the state. New Hampshire Gov. Chris Sununu said in a statement:

By filing this lawsuit, we will ensure that polluters are held accountable and that our state will obtain the financial resources necessary to remedy the harm that PCBs have caused to our environment.

The state is demanding damages for the alleged harm to its environment and payment to deal with and remediate the problem. The company faces negligence, design defect and failure to warn, among other claims.

Monsanto is accused of knowing about the risks PCBs posed but continuing to sell PCB-laden products because they made money. The complaint provides examples of Monsanto’s supposed knowledge of PCBs’ harm, including when in the 1950s, the company told workers “not to eat lunch in the PCB department.”

“Monsanto’s internal documents show that the company deliberately decided to keep selling PCB mixtures despite the mass contamination they inevitably caused,” the state said, adding that in 1969 the company said internally that the substance posted a large-scale environmental threat. “Monsanto acknowledged that there was ‘no practical course of action’ to prevent this mass contamination, but still insisted on taking steps ‘to prolong the manufacture, sale and use of these particular [PCB products].”

The suit names as Defendants Monsanto Co., an Eastman Chemical Co. entity and a Pfizer Inc. subsidiary. These three companies are successors of Monsanto’s liability in some manner, according to the suit. Eastman has said Monsanto and Bayer are responsible for indemnifying it.

The state is represented by Senior Assistant Attorney General K. Allen Brooks and Assistant Attorney General Heather Neville of the New Hampshire Department of Justice.

The case is State of New Hampshire v. Monsanto Co. et al. (case number 217-2020-cv-00573) in Merrimack Superior Court in the State of New Hampshire.

Source: Law360.com

North Carolina Attorney General Sues Chemours And Dupont Over Pfas Contamination

North Carolina Attorney General Josh Stein filed a lawsuit last month alleging that chemical giants Chemours and DuPont contaminated the state’s natural resources with per- and polyfluoroalkyl substances, otherwise known as PFAS. The lawsuit comes on the heels of the Attorney General’s August announcement that his office launched an investigation against PFAS manufacturers and users that have polluted the state’s waters.

PFAS, also known as “forever chemicals,” resist biodegradation, are mobile and persist in the environment for many years. They also bioaccumulate in animals and humans, making them harmful to human health. They have been linked to various health issues including kidney and testicular cancer, thyroid disease, ulcerative colitis and others.

Chemours operates a chemical plant located along the Cape Fear River in Fayetteville. DuPont previously operated the plant from the early 1970s until 2015, when it separated its performance chemicals division segment through a spin-off and creation of Chemours. Since at least the early 1980s, Dupont and later Chemours discharged GenX and other potentially cancerous PFAS into the river, contaminating drinking water for residents of several communities and hundreds more downstream. The compounds also were released in the emissions from the companies’ vent stacks, contaminating private drinking water wells for more than 3,000 people who live near the plant.

The lawsuit also alleges that DuPont withheld financial information from Chemours and the State on the cost of environment. Notably, the lawsuit also alleges that the companies designed a scheme to shield billions of dollars in assets from the State and others who the companies knew were damaged by their conduct.

Attorney General Stein said he will provide a value of the damages caused by the companies once more investigative work has been completed. The State is seeking damages for all past and future costs to “investigate, assess, remediate, restore, and remedy the harms” caused by PFAS contamination as well as punitive damages. This lawsuit complements the State Department of Environmental Quality’s Consent Order, which was entered to address the PFAS in the Cape Fear River Basin.

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

Source: North Carolina Health News

The ONGOING Roundup Litigation

Roundup Update

U.S. District Judge Vince Chhabria, on Nov. 9, restarted dozens of Roundup cases that failed to settle following the earlier announcement of agreements totaling up to $10.9 billion over the weedkiller developed by Monsanto, which is now owned by Bayer AG. Bayer may face as many as four U.S. trials over its Roundup weedkiller next year. Judge Chhabria said he is ready to resume putting cases in front of jurors. With thousands of lawsuits alleging the herbicide is cancerous still unresolved, Judge Chhabria said it’s time to move forward following a period during which all the federal cases were on hold because of pending negotiations.

Of the handful of cases that are closest to being ready for trial, Bayer will still have an opportunity to argue for their dismissal or try to get Plaintiffs’ expert witnesses disqualified. But if the company doesn’t get the suits dismissed or settled, it faces a Jan. 25 pretrial conference for the first case. Judge Chhabria told lawyers during a hearing: “I’ll get to work on those cases promptly.” He noted that only about half of the approximately 4,000 cases he currently oversees are subject to settlement agreements.

Judge Chhabria also appeared ready to set hearings for summary judgment and Daubert motions as early as May 28, 2021 on another set of multidistrict litigation (MDL) cases referred to as “Wave II” cases. The Court advised the parties to revise a proposed Wave II schedule that conforms with those hearing dates.

Bayer said in an emailed statement that, due to the pandemic, it doesn’t expect month-long trials to happen any time soon. Interestingly, Bayer said:

We remain fully committed to settling the Roundup litigation and are reaching out to counsel for virtually all not yet settled cases.

Ken Feinberg, the court-appointed mediator for the Roundup litigation, one of the best in his field of expertise, told Judge Chhabria that settlements in state and federal courts “are being successfully implemented.” He added: “We are not there yet but we are making substantial progress.”

Anna Pavlik, Special Situations Senior Counsel at United First Partners in New York, had this to say:

If Judge Chhabria moves to resume the next set of cases, we would expect a negative outcome for Bayer yet again, with juries likely to continue to hand the Plaintiffs multimillion-dollar awards. Such jury awards would continue to put pressure on Bayer to come up with a more comprehensive settlement offer, which may entail higher per-Plaintiff payouts as well as a possible change of the RoundUp label.

The vast majority of the unresolved Roundup suits are in state courts and not subject to Judge Chhabria’s deadlines or decisions. That is not necessarily “good news” for Bayer.

The case is In re Roundup Products Liability Litigation (16-md-02741) U.S. District Court, Northern District of California (San Francisco).

Source: Bloomberg News

Bayer Budgets $2 Billion To Settle Future Roundup Cancer Claims

Monsanto’s parent company Bayer AG announced on Nov. 3 that it expects to pay $2 billion in a class settlement to resolve future claims that Roundup weedkiller causes cancer, increasing its original estimate of $1.25 billion. In an earnings report, the company said while it will take more time to complete the settlement process, it is far enough along to know the plan will cost about $2 billion. A motion for preliminary approval had not been filed at press time since a formal agreement had not been reached.

This settlement is part of a larger settlement the company announced in June to resolve claims in the ongoing multidistrict litigation (MDL) in California federal court. The claims center on the premise that glyphosate in the weedkiller Roundup made by Monsanto causes non-Hodgkin’s lymphoma. Bayer said it was working with Plaintiffs’ counsel in the MDL to resolve the issues that caused Plaintiffs to withdraw the initial plan for the $1.25 billion future claims settlement in July.

At the time, U.S. District Judge Vince Chhabria said there were problems with the settlement and that he was “unsure of its constitutionality,” because it proposed to have a panel of scientists, rather than judges and juries, decide whether the weedkiller causes cancer. Bayer told Law360 in a statement:

We are working in good faith to address the issues raised by the court to the satisfaction of the parties and need additional time to complete this process. These negotiations are confidential and therefore we cannot comment further at this time. Given the progress in the negotiations, we are taking additional provision in this quarter in part to cover the expected additional cost of the revised class plan which will take the cost of this program from $1.25 to approximately $2 billion.

Bayer’s announcement comes more than a month after Plaintiffs’ lawyers told the court they had reached a “binding” agreement with Bayer following concerns that a $10 billion settlement announced in June fell through.

In August, Plaintiffs’ lawyers told the court they were concerned Bayer had gone back on the multibillion-dollar Roundup settlement. Although there have been more than 125,000 claims against Monsanto over Roundup’s alleged links to cancer, just three cases have gone to trial. All three trials were held in federal and state courts in Northern California, and each resulted in Plaintiffs’ victories, including a $2.06 billion verdict in 2019. Courts have since reduced the verdicts, and Bayer is fighting them on appeal. Bayer said the settlement announced in June didn’t include those three cases.

In July, after Monsanto announced its $10 billion deal, a California appellate court affirmed a jury’s finding that Monsanto is liable for a former school groundskeeper’s cancer in the first case to go to trial over Roundup’s alleged links to cancer, but reduced the total award from $78 million to $20.6 million.

The Plaintiffs are represented by Baum Hedlund Aristei & Goldman, Moore Law Group PLLC, Andrus Wagstaff PC, Weitz & Luxenberg PC, The Miller Firm LLC and Lieff Cabraser Heimann & Bernstein LLP.

The MDL case is In re Roundup Products Liability Litigation, (case number 3:16-md-02741) in the U.S. District Court for the Northern District of California.

Source: Law360.com

Beasley Allen Roundup Litigation Team

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

Class Action Litigation

Rate-Rigging Suits Against Big Banks Proceed

U.S. District Judge Jesse Furman has ruled that Philadelphia and Baltimore can proceed with consolidated class action litigation accusing major banks of artificially inflating interest rates on securities known as variable rate demand obligation (VRDO) bonds. Some of the cities’ state-law claims were dismissed. Judge Furman ruled that an antitrust conspiracy had been plausibly alleged by the cities.

Judge Furman declined to dismiss the cities’ federal antitrust claims against Bank of America, Citigroup and other financial institutions named in the putative class action case. The cities alleges a multiyear conspiracy among VRDO “remarketing agents” to manipulate the interest rates set for the tax-exempt bonds often used in financing major municipal projects. Judge Furman wrote:

To be sure, Defendants offer plausible non-collusive explanations for many of the facts alleged in the complaint. But the choice between two plausible inferences that may be drawn from factual allegations is not a choice to be made by the court on a Rule 12(b)(6) motion. Instead, the sole question for the court is whether Plaintiffs put forward enough facts to raise a reasonable expectation that discovery will reveal evidence of illegal agreement. Taking all of Plaintiffs’ allegations together and drawing all reasonable inferences in their favor, as the court must … the court concludes that Plaintiffs meet that burden on their federal antitrust claims.

Philadelphia and Baltimore, which filed the case last year on behalf of themselves and a proposed class of other VRDO issuers, have also asserted state-law claims for breach of contract and fiduciary duty as well as unjust enrichment against the Defendants. Included as Defendants are certain parents, subsidiaries and affiliates from eight large banking institutions.

But Judge Furman found that the cities had not alleged a contractual or fiduciary relationship with a subset of these Defendants, known as the non-counterparty Defendants, and therefore could not proceed with the corresponding contract and fiduciary duty claims against those Defendants.

By contrast, Judge Furman upheld contract claims against those bank units alleged to have served as remarketing agents for Philadelphia and Baltimore VRDO issuances, but he dismissed Philadelphia’s breach of fiduciary claims against these same so-called counterparty Defendants as largely duplicative of the contract claims. Judge Furman wrote:

Beyond the conclusory assertion that counterparty Defendants acted as its ‘municipal advisors’ … Philadelphia does not allege any facts to show that it had a special relationship of trust with the banks that would give rise to a fiduciary duty.

Judge Furman additionally rejected the cities’ unjust enrichment claims, citing in part what he said was an unfulfilled requirement under Pennsylvania and Maryland state law for the validity of the banks’ remarking agreements themselves to be in dispute.

The interest rates on VRDOs are regularly reset to keep them as low as possible, and VRDO issuers like Philadelphia and Baltimore hire banks as remarketing agents to perform these resets and remarket the bonds that investors decide to sell back at par value.

In their lawsuit, however, the two cities have alleged that remarketing agents inflated the interest rates on VRDOs between 2008 and 2016 in order to reduce the likelihood that investors would sell their bonds back, thus minimizing the banks’ need to hold and remarket the bonds. Inflated rates, according to the suit, also benefited money market funds that invested in VRDOs and were managed by some of these banks.

Classwide damages are established at potentially billions of dollars. The case was consolidated in May 2019. The suits initially were brought separately by Philadelphia and Baltimore. Similar claims of VRDO rate manipulation by major financial institutions have also featured in several state court whistleblower suits, though some of these cases have since been dismissed or reduced in scope.

The cities are represented by Quinn Emanuel Urquhart & Sullivan LLP, Wollmuth Maher & Deutsch LLP and Susman Godfrey LLP, with additional representation for Philadelphia from its own City of Philadelphia Law Department.

The case is City of Philadelphia et al. v. Bank of America Corp. et al. (case number 1:19-cv-01608) in the U.S. District Court for the Southern District of New York.

Source: Law360.com

Recently Settled Class Action Cases

There have been several significant settlements in class action litigation over the past several weeks. This area of litigation is still extremely active and that activity is expected to continue and even increase in 2021. The following are some of the settlements.

Travel Companies Agree To $26 Million Settlement To End Trip Insurance Suit

A proposed class of travelers has asked a Florida federal court to approve a $26 million settlement to resolve claims that Delta Air Lines Inc., JetBlue Airways Corp. and other travel companies hid that they were getting paid when consumers bought travel insurance.

In a motion filed on Nov. 3, the class, led by named Plaintiff Bonnie Foshee, said the fund would go toward reimbursing class members for up to 15% of their trip insurance payments and that the settlement includes an injunction making the travel companies disclose they receive compensation when customers buy travel insurance.

The fund is nonreversionary and will also cover attorney fees, incentive awards and other administrative costs. Leftover funds will go first toward class members, who could receive up to 100% of their trip insurance payments, and any left over after that will go cy pres to the Make-A-Wish Foundation.

The proposed class filed a consolidated complaint in October, bringing together under Foshee’s suit claims in nine separate separate suits against Delta, JetBlue, American Airlines Inc., United Airlines Inc., Alaska Airlines Inc. and Amtrak. All of these Defendants will be dismissed as part of the settlement and the release of claims.

It was alleged that each of the companies induced customers to buy travel insurance through AGA Service Co. without disclosing that the airlines and Amtrak receive compensation as part of the deal. Some of the suits also allege that the travel companies illegally sold their data to AGA. It should be noted that AGA is not named in the consolidated complaint and is not party to the settlement.

The settlement comes after years of litigation starting in 2016, the class told the court, saying it is a good result for class members, considering the companies were granted motions for dismissal and summary judgment in some of the nine suits.

The travel companies announced that they had worked out a framework for the settlement in March. While a 10th suit is affected, it’s not a part of the settlement. That suit includes claims involving a separate travel insurance carrier.

The travelers asked the court to approve a settlement class consisting of all U.S. residents who bought a travel policy from AGA as part of its business arrangement with the Defendants, with class notice going out through the same email addresses AGA received from class members when they bought their policies.

Class representatives will ask for incentive awards based on their participation in the case, with Plaintiffs who sat for deposition asking for $7,500 each; Plaintiffs who did not sit asking for $5,000; and those Plaintiffs first named in the consolidated complaint asking for $1,000.

The proposed class is represented by lawyers from Robbins Geller Rudman & Dowd LLP; Leon Cosgrove LLP; Levi & Korsinsky LLP; Taus Cebulash & Landau LLP; Kantrowitz Goldhamer & Graifman PC; The Moskowitz Law Firm; Korein Tillery LLP; Bonnet Fairbourn Friedman & Balint PC; Wites Law Firm; Glancy Prongay & Murray LLP; and Gustafson Gluek PLLC.

The case is Foshee et al. v. Delta Air Lines Inc. et al. (case number 4:19-cv-00612) in the U.S. District Court for the Northern District of Florida.

Source: Law360.com

Birdsong To Pay $50 Million To Settle Peanut Price-Fixing Suit

Farmers who claim that three of the biggest names in peanut shelling have been conspiring to flatten the price of their crops asked a Virginia federal judge Monday to bless a $50 million settlement they reached with Birdsong Corp. in their proposed class action.

The peanut farmers asked U.S. District Judge Raymond A. Jackson for preliminary approval of the deal, which was announced on the docket last week and will see peanut-shelling giant Birdsong pay $50 million to the settlement class, according to the motion.

Birdsong has also agreed to cooperate with the farmers in their continued litigation against Golden Peanut Co. in exchange for the release of claims that were brought or could have been brought against Birdsong and its affiliates, according to the motion. “This cooperation here is even more valuable in light of the applicability of joint and several liability to Plaintiffs’ claims – which at the point of the litigation means that Golden Peanut is jointly and severally liable for the full treble damages that Plaintiff establishes at trial,” the farmers said.

Golden Peanut remains the only Defendant left in the case after the farmers reached a preliminary $7.75 million settlement with Olam Peanut Shelling Co. last month, according to court records. The suit, which was filed in September 2019, accuses the three companies of working together to depress the price they shell out for the farmers’ crops.

According to the farmers, their case is about “how three large corporations conspired with one another for the past six years to drive down the prices they paid America’s peanut farmers for their hard work.” The trio buy raw and harvested peanuts from farmers, shell them and then sell them in bulk to entities around the country, such as candy companies. Together they make up around 80% of the peanut-shelling industry in the United States, according to the suit.

Specifically, the suit’s allegations center on runner peanuts, the most popular type in the United States. They’re the type used to make peanut butter and other snacks and aren’t normally packaged to be eaten on their own.

In September, the farmers launched a bid for class certification, arguing that presenting the same evidence at “potentially hundreds of separate trials” would be “highly inefficient and wasteful.”

In their motion for preliminary approval of the settlement with Birdsong, the farmers defined the settlement class as anyone in the U.S. who sold raw, harvested runner peanuts to any of the three Defendant companies, their subsidiaries or joint ventures from Jan. 1, 2014, through Dec. 31, 2019.

The farmers estimate that the class contains thousands of people or entities, according to the motion. A trial is currently slated to begin in January. There have been some delays caused by the coronavirus pandemic. But Judge Jackson said another delay wouldn’t be possible, since he’d already agreed to “kick the can along” once.

Birdsong and Golden Peanut had attempted to get the claims dismissed before the trial. Judge Jackson refused to let them out of the suit in May, rejecting arguments that the farmers based their claims on flawed U.S. Department of Agriculture data.

The farmers are represented by Wyatt B. Durrette Jr. and Kevin J. Funk of Durrette Arkema Gerson & Gill PC; W. Joseph Bruckner, Brian D. Clark, Simeon A. Morbey and Stephanie A. Chen of Lockridge Grindal Nauen PLLP; Kimberly A. Justice, Jonathan M. Jagher, Douglas A. Millen, Michael E. Moskovitz, Robert J. Wozniak and Brian M. Hogan of Freed Kanner London & Millen LLC; and Jeffrey J. Corrigan of Spector Roseman & Kodroff PC.

The case is In re: Peanut Farmers Antitrust Litigation (case number 2:19-cv-00463) in the U.S. District Court for the Eastern District of Virginia.

Source: Law360.com

University Of California Reaches $73 Million Settlement To End Sex Abuse Claims

The University of California has agreed to pay out $73 million to settle claims its Los Angeles campus failed to protect scores of women who were sexually abused by a former gynecologist. The seven former patients of Dr. James Heaps alleged in their putative class action that the University of California, Los Angeles missed multiple opportunities to stop the doctor from sexually exploiting his patients. Heaps was arrested and charged with sexual battery in June 2019, according to the suit, which was filed in Oct., 2020. The Plaintiffs aren’t named in the suit.

The proposed settlement class consists of an estimated 6,600 women who were seen by Heaps at the Ronald Reagan UCLA Medical Center between 1986 and June 2018, at UCLA’s student health center from 1983 to June 2019, and at his medical offices at the UCLA Medical Plaza from February 2014 to June 2018.

Under the proposed deal, UCLA must make institutional reforms and compensate members of the settlement class, the patients said in this motion for approval filed on Nov. 16. Class members will receive an amount from $2,500 to $250,000 apiece, although some could get even more.

UCLA will also cover the Plaintiffs’ attorneys’ fees, an amount that won’t exceed $8.8 million, according to the filing. Additionally, the Plaintiffs could each come away with up to $15,000 in service awards.

Class members who still want to pursue individual litigation are free to do so. But the proposed settlement was said to offer “a better alternative for thousands of women who were impacted by Heaps’ predatory behavior and would otherwise receive nothing.”

According to the July 2019 suit, over the years Heaps made inappropriate and sexually suggestive comments about patients’ appearance, anatomy or sexual activity, removed patients’ clothing without consent and recommended unnecessary procedures and overly frequent examinations so he would have additional opportunities for abuse. The OB-GYN also sexually assaulted patients in a variety of ways, the victims alleged.

The patients are represented by Daniel C. Girard, Jordan Elias, Trevor T. Tan and Makenna Cox of Girard Sharp LLP, Elizabeth A. Kramer of Erickson Kramer Osborne LLP and Eric H. Gibbs, Amy M. Zeman and Amanda M. Karl of Gibbs Law Group LLP. The case is A.B. et al. v. The Regents of the University of California et al., case number 2:20-cv-09555, in the U.S. District Court for the Central District of California.

Source: Law360.com

Judge Will Approve $23.6 Million Forex-Rigging Settlement

A New York federal judge has indicated she will approve a $23.6 million class-action settlement with more than a dozen big banks accused of rigging the foreign exchange market.

U.S. District Judge Lorna G. Schofield indicated her approval of the wide-ranging agreement during a telephone hearing, commending the investors’ counsel on what she said was an agreement so well received by an estimated 100,000 class members that not a single one had objected or opted out.

The settlement will benefit eight statewide classes of investors in Arizona, California, Florida, Illinois, Massachusetts, Minnesota, New York and North Carolina who indirectly purchased forex instruments from the banks.

The investors filed their claims in April 2017, alleging traders at Bank of America NA, Citigroup Inc., Deutsche Bank AG and other big banks worked together to manipulate the forex market and swap confidential customer information between 2007 and 2013.

According to the complaint, high-level traders held secret meetings using code words and used online chat rooms to coordinate the timing and volume of trades and move exchange rates in directions that favored the banks.

The investors also accused the banks of failing to maintain safeguards that could have prevented the manipulation and turning a blind eye to the collusion.

Judge Schofield has given preliminary approval of the five-part settlement in July. The investors are represented by Berger Montague, Schneider Wallace Cottrell Konecky Wotkyns LLP, Peiffer Wolf Carr Kane & Conway APLC and McCulley McCluer PLLC.

The case is Contant et al. v. Bank of America Corp. et al., case number 1:17-cv-03139, in the U.S. District Court for the Southern District of New York.

Source: Law360.com

Navy Federal To Pay $16 Million To Settle Insufficient Funds Fee Suit

A Navy Federal Credit Union member accusing the nation’s largest credit union of unfairly charging insufficient funds fees has asked a Virginia federal judge to preliminarily approve a $16 million proposed class settlement.

According to the motion for preliminary approval, the proposed settlement would establish a $16 million common fund for the settlement class and require Navy Federal to revise its account agreement policy to clarify how it assesses insufficient funds fees. Navy Federal did not oppose certifying the class.

Lambert sued the credit union in January 2019, alleging that its fee-assessment practices for insufficient funds violated her agreement with the credit union. In her complaint, Lambert says that Navy Federal charged multiple $29 insufficient funds fees per transaction, and contends that her contract only allowed the credit union to charge one fee per transaction.

After her suit was dismissed with prejudice for failing to state a claim in August 2019, Lambert appealed to the Fourth Circuit, but the appellate court stayed further proceedings to allow the parties to mediate an agreement.

Lambert said in her motion that one of the hallmarks of the agreement is that settlement class members are not required to file claims to receive compensation. The settlement fund will be allocated to members of the settlement class under a distribution plan in the agreement.

“The precise calculation and implementation of allocations of the settlement fund will be done by class counsel and plaintiff’s expert using data provided by Navy Federal,” the motion said.

In October 2018, Navy Federal agreed to pay out $24.5 million to end proposed class claims in a similar suit alleging the credit union unfairly charged overdraft fees. Lambert and the proposed class are represented by Kristi C. Kelly and Andrew J. Guzzo of Kelly Guzzo PLC.

The case is Rudy Lambert et al. v. Navy Federal Credit Union (case number 1:19-cv-00103) in the U.S. District Court for the Eastern District of Virginia.

Source: Law360

NURSING HOME LITIGATION

Nursing Homes Cleared For Infection Control Safety While COVID Claimed Lives

Approximately two-thirds of all COVID-19 deaths in nursing home between March and August occurred in facilities that had received a clean bill of health from Centers for Medicare and Medicaid Services (CMS) inspectors, according to a Washington Post investigation.

The investigation follows a report released Sept. 22 by the U.S. Senate Special Committee on Aging noting the devastating rate at which the coronavirus affected nursing home residents and staff alike. According to the committee, data reported to CMS and the Centers for Disease Control and Prevention (CDC) for the months of July and August alone revealed more than one nursing home resident was infected with coronavirus every minute, and 11 residents died every hour.

At the time of the Senate report, COVID-19 had claimed the lives of more than 78,000 nursing home residents and workers nationwide. To date, nursing home residents and staff make up 30% of all coronavirus deaths in the U.S., the Post reports.

Seema Verma, the CMS administrator appointed by President Donald Trump, tried to get a handle on the pandemic risk facing nursing homes in March, after infections spread through the Life Care Center in Kirkland, Washington, and confirmed cases at other nursing homes began cropping up. She proposed CMS partner with state agencies to make sure nursing homes were abiding by regulations put in place to stop the spread of communicable diseases.

Inspectors visited nursing homes, but surprisingly few violations were cited. Even when a nursing home had a virus outbreak before – or even during – the inspection. In the cases when a nursing home was reported for violations, the penalties were just a fraction of the $22,000 per day allowable by the CMS. Hardly an incentive for corrective action.

How did this happen? How were facilities entrusted to care for some of the most vulnerable people in the country allowed such a lackadaisical approach to common safeguards like requiring workers to wear masks, separating residents in common areas, or using protective gear when treating patients?

It may have something to do with a three-year effort prior to the pandemic to try to roll back Obama-era regulations on nursing home requirements for infection control and other reporting. In many cases, CMS pushed for nursing homes to decide for themselves how much time should be spent on infection-control policies and procedures. The classic scenario of the fox watching the henhouse that always turns out so well – for the fox.

While CMS scrambled to implement an inspection and penalty program when it became apparent the coronavirus posed a serious threat to the nation’s nursing homes, it failed to add any real teeth to hold facilities accountable. When larger fines were imposed by the agency, it postponed collections. A cohesive plan to provide guidance and enforce regulation never materialized. In short, the agency responsible for overseeing the safety of people most at risk from the coronavirus dropped the ball.

Sources: The Washington Post and U.S. Senate Special Committee on Aging

The Beasley Allen Nursing Home Litigation Team

Alyssa Baskam, the Beasley Allen lawyer who previously headed the Nursing Home Litigation Team, has moved to the firm’s Personal Injury & Products Liability Section. Alyssa did an outstanding job in the Nursing Home Litigation. But because of her skillset and interest in product safety, she will now concentrate her practice on Product Liability litigation. Rhon Jones will temporarily head up the Nursing Home Litigation Team with a permanent head to be named later. We do not expect there to be any significant changes in how the firm handles nursing home cases.

David Diab and Gavin King also serve on the Nursing Home Litigation Team. In order to properly handle nursing home litigation, lawyers and support staff must have experience and expertise in this type case.

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

PHARMACY BENEFITS MANAGER (PBM) LITIGATION

Texas Judge Allows Price Fixing Claims Against Drug Makers And PBMs To Proceed

A county in Texas has filed suit in federal court against some of the largest manufacturers of insulin drugs, along with three of the country’s largest Pharmacy Benefit Mangers (PBMs) for allegedly fixing prices for insulin drugs and committing fraud against Harris County. This fall, the federal judge overseeing the case ruled that the case will be allowed to move forward, making this the first time that drug manufacturers and PBMs will have to collectively defend their role in the rising price of insulin drugs.

The lawsuit accused PBMs of collaborating with drug manufacturers to drastically and artificially raise prices for insulin, costing Harris County millions in overpaid taxpayer dollars. PBMs are the middleman between drug makers, pharmacies, and health care benefit plans. PBMs are supposed to be using their negotiating power to decrease prescription drugs costs and then pass their savings on to patients and plan sponsors. However, PBMs are being scrutinized for increasing drug costs, inflating overhead costs, overcharging administrative fees, retaining rebates and pocketing savings. Having such a consolidated industry, with just three major PBMs accounting for 85% of the market, hinders competition, increases drug prices and keeps consumers in the dark about the wrongful conduct of these companies and the drug manufacturers with whom they conspire.

The lawsuit was filed in federal court and among the various Defendants is insulin manufacturer Novo Nordisk, and PBMs OptumRx, Express Scripts and CVS Caremark. The lawsuit alleges that from 2013 to 2018, Harris County had to pay $27.5 million for insulin due to an alleged pricing scheme between the insulin drug manufacturers and PBMs, subjecting the companies to claims of civil racketeering and fraud.

The lawsuit alleges that the companies made unlawful deals in which the drug manufacturers agreed to artificially raise the prices for insulin drugs in exchange for the PBMs placing the manufacturers’ drugs on their formularies. The lawsuit further claims that the drug manufacturers made secret payments to the PBMs disguised as rebates, fees and discounts.

The PBMs have been accused of using the inflated insulin prices to create a spread between the price they pay pharmacies for the drug versus the price they are reimbursed by health plans. That spread in prices creates a windfall to the PBMs, who pocket the money as pure profit. The PBMs have also been accused of using the inflated prices to profit when selling insulin drugs through their own mail-order pharmacies. Joanne Cicala, an attorney who represents Harris County, said:

The truth is that both groups of companies have been working together to create an artificial pricing system, and so anyone purchasing insulin is being harmed by this conspiracy by two dominant market actors.

Prescription drugs are increasingly more expensive in the United States than anywhere else in the world and many are blaming drug manufacturers and PBMs for these rising drug costs. Now, the companies can be put under the microscope together, and finally be held accountable for their conduct that essentially skims money from pharmacy transactions, causing economic harm to consumers, health plans and governments.

Over the years, Beasley Allen has represented various states and municipalities in complex health care litigation against drug manufactures and PBMs. Our firm welcomes the opportunity to investigate potential drug manufacturer and PBM misconduct. If you have any questions about our firm’s health care fraud practice, contact Dee Miles, Ali Hawthorne or James Eubank, lawyers in our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at Dee.Miles@beasleyallen.com; Alison.Hawthorne@beasleyallen.com or James.Eubank@beasleyallen.com.

Source: Becker’s Hospital Review

THE CONSUMER CORNER

Do You Know If Your Tires Have Been Recalled?

Did you know that retailers are not required to register the tires they sell with manufacturers? Each tire sold can be identified with a “DOT” (Department of Transportation) code that is stamped on the side of the tire. This code identifies the manufacturer of the tire along with the week and year the tire was manufactured. One reason for the DOT code is to allow manufacturers to send out recall information to consumers in the event a safety-related defect is discovered after the distribution of the tires. However, in order to notify consumers, manufacturers must know who bought the tires.

Studies have shown that approximately one in five defective tires is actually removed from the road through the safety recall process. The National Transportation Safety Board (NTSB) has examined this process and determined that it needs to be improved. Independent dealers sell about 92% of the tires sold directly to consumers according to the NTSB. Unfortunately, most consumers are not aware that they have to register their tires with manufacturers so they can receive safety-related defect recall information.

In most cases, retailers are supposed to provide consumers with registration cards or information for tire registration on manufacturers’ websites. However, this information is not often provided by retailers to consumers and manufacturers do not require independent dealers to obtain or transmit this information to the manufacturers. As a result, approximately 80% of recalled tires do not get removed from use.

Even when manufacturers are provided with DOT code information, manufacturers are not doing everything they can to ensure that the registration information is up to date or that consumers actually receive recall notices. In one case, our firm learned that a major tire manufacturer sent recall notices out via third-class mail, which meant that notices were not forwarded in the event consumers had moved after registering their tires.

Again, there is no law mandating that recall notices be sent out via first-class mail. Although the NTSB has unanimously approved recommendations to improve the tire recall system, the system remains broken.

Between 2009 and 2013, there were approximately 55 tire-related safety recall campaigns involving 3.2 million tires. If 80% of those tires were not removed from use, there is a significant safety-related implication, as approximately 500 people are killed and 19,000 injured in 33,000 tire-related accidents annually. Therefore, if your tire retailer does not provide you with information on registering your tires, please request the information or visit the tire manufacturer’s website to ensure that you are notified about any safety-related defect recalls.

If you have any questions or need more information, contact Ben Baker, a lawyer in our firm’s Personal Injury & Products Liability Section, at 800-898-2034 or by email at Ben.Baker@beasleyallen.com. Ben is one of the lawyers handling trucking litigation for the firm.

Source: CBS Interactive, Inc., “NTSB: Recall System for Defective Tires is ‘Broken’”

Apple To Pay $113 Million To End IPhone “Throttling” Suit

Apple Inc. has agreed to pay $113 million to 33 states and the District of Columbia to settle a suit alleging that the company deliberately “throttled,” or reduced the performance of, certain iPhone models starting in 2016 in response to a battery issue that it concealed from consumers. Arizona Attorney General Mark Brnovich announced the settlement on Nov. 18.

In a press release, Attorney General Brnovich said the settlement resolves a suit stemming from a multistate investigation, which found that after discovering a battery issue that caused millions of phones to unexpectedly shut down on a daily basis, the tech giant hid the cause from consumers and pushed through an update that slowed performance. Arizona will receive more than $5 million from the settlement.

As a consequence of the update, and Apple’s efforts to prevent customers from replacing their batteries to fix the issue, many users saw no alternative but to buy new phones, artificially boosting Apple’s sales numbers, according to the complaint, also filed on Nov. 18. Brnovich said in the release:

Big Tech companies must stop manipulating consumers and tell them the whole truth about their practices and products. I’m committed to holding these goliath technology companies accountable when they conceal important information from users.

The following allegations are made in the suit:

Apple became aware of the shutdowns as a result of customer complaints in 2016, but limited the amount of information that iPhone owners could receive about their batteries, while downplaying the issue as affecting a “very small number” of devices.

Instead, millions of phones around the world experienced at least one unexpected shutdown a day, but rather than admit to the battery issue and replace them, Apple pushed through an update that slowed the performance of iPhones that was intended to reduce the number of shutdowns.

That this update was sent to all iPhones is more evidence that more than a “very small number” of devices were affected. At the same time, Apple resisted replacing batteries, requiring that an iPhone fail its own diagnostic test before issuing a replacement, even though the test did not account for the battery issue in question.

Apple concealed the true nature of the update until March 2018, but in the meantime had raked in sales of new iPhones from consumers who thought that was the only solution to the shutdowns and slow performance of their old phones.

In addition to the monetary payment, the settlement requires Apple to maintain a webpage to inform consumers about the batteries and unexpected shutdowns, and to inform consumers if any future updates affect the performance of their phones.

Illinois Attorney General Kwame Raoul, whose state will receive more than $3.4 million, praised the settlement deal. Raoul said in a press release:

Apple knowingly withheld information from consumers in an effort to sell more phones and increase profits. Today’s settlement holds Apple accountable for taking advantage of consumers and ensures that protections are in place so consumers can be well-informed when making purchases.

New Jersey Attorney General Gurbir S. Grewal, whose state will get more than $3 million, said in a press release that Apple’s behavior was “rotten,” adding:

Not only did Apple try to conceal the iPhone’s shortcomings, but the company’s supposed fix for those defects created new problems that led consumers to shell out money for new iPhones. Today’s settlement should send a clear message that we will never tolerate such abuse of New Jersey consumers.

Arizona is represented by Joseph Sciarrotta, Matthew du Mee, Rebecca Eggleston and John Gray of the Arizona attorney general’s office, Civil Litigation Division.

The case is State of Arizona v. Apple Inc., in the Superior Court of the State of Arizona, in and for the County of Maricopa.

Source: Law360.com

Sprint And T-Mobile To Pay $200 Million Over Unused Lifeline Phones

The newly combined T-Mobile and Sprint will pay $200 million to settle claims that Virgin Mobile USA, one of the company’s units, abused a subsidy program for low-income customers. The Federal Communications Commission (FCC) announced the settlement on Nov. 4. According to a consent decree announced by the agency’s Enforcement Bureau, the companies are responsible for profiting off nearly 1 million inactive Lifeline subscriber accounts operated by Virgin Mobile.

According to FCC Chairman Ajit Pai, the penalty adds up to the “largest fixed-amount settlement in FCC history.” In September 2019, the FCC announced that it would investigate how Sprint wrongly claimed subsidies tied to these accounts in the Lifeline subsidy program. That program reimburses low-income households for about $10 toward their phone and internet bills. According to the FCC, the accounts in question were attached to subscribers who were not actually using the subsidized cellphone services but for which Sprint was reimbursed through the program anyway.

The FCC said that Sprint attributed the errors to a “software programming issue” in which the company’s systems “failed to detect that over a million Lifeline subscribers nationwide lacked usage over an extended period of time.” The FCC noted that Sprint fully cooperated with the investigation. The $200 million settlement includes an agreement that Sprint will set up a training and compliance program to ensure the company and any vendors or contractors follow Lifeline rules.

As FCC Democrat Geoffrey Starks noted last year, Sprint’s violations triggered the largest investigation into Lifeline subscriber abuse at the agency. The second-largest investigation involved about 40,000 ineligible subscribers claimed by the American Broadband and Telecommunications Co. in 2018. In that instance, the agency proposed a $63 million fine for the conduct, which included signing up dead people for Lifeline.

Although the FCC levied a much larger fine this time, it declined to further look into the company’s “basic qualifications to hold or obtain any commission license or authorization,” as it said no new evidence surfaced to merit that step. A T-Mobile spokesperson said in a statement that “while we inherited this issue with our merger, we are glad that it is now resolved. We look forward to continuing to deliver reliable and affordable network connectivity to consumers across the country who depend on it.”

Source: Law360.com

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

Our BeasleyAllen.com website provides all the latest information on all of the current case activity at Beasley Allen. The list can be found at the bottom of our homepage, top navigation, or our Practices page of the website ( BeasleyAllen.com/Practices/)

The following are some of the current case activity listings:

Business Litigation

  • Antitrust
  • Business Interruption Insurance
  • Commercial Disputes
  • Intellectual Property
  • Pharmaceutical Pricing
  • States & Municipalities

Consumer Protection

  • Class Actions
  • Insurance Disputes
  • Pension Plans

Defective Products

  • Defective Airbags
  • Defective Tires
  • E-Cigarette Explosions
  • Heavy Truck Defects
  • JUUL Vaping Devices
  • On-the-Job Injuries
  • Talcum Powder

Employment Law

  • Fair Labor Standards Act
  • Sexual Harassment
  • Whistleblower
  • Workplace Discrimination
  • Workplace Retaliation

Medical Devices

  • Hip Replacements
  • Knee Replacements
  • Physiomesh

Medication

  • Belviq Cancer
  • Proton Pump Inhibitors
  • Zantac Cancer

Serious Injuries

  • Truck Accidents
  • Auto Crashworthiness
  • Aviation Accidents
  • Heavy Equipment Injuries
  • Premises Liability
  • Sexual Abuse
  • Single Vehicle Accidents

Toxic Exposure

  • Benzene
  • Environmental Exposures
  • Mesothelioma
  • Roundup
  • Water Contaminations

The cases in the categories listed above are handled by lawyers in the appropriate section at Beasley Allen, which are Personal Injury & Products Liability, Mass Torts, Toxic Torts and Consumer Fraud & Commercial Litigation.

Resources to Help Your Law Practice

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

Aviation Litigation & Accident Investigation

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

Tire Litigation: A Primer

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

Nursing Home Abuse & Neglect Brochure

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

Co-Counsel E-Newsletter

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

The Jere Beasley Report

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

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

PRACTICE TIPS OF THE MONTH FOR TRIAL LAWYERS

Kendall Dunson, a lawyer in our Personal Injury & Products Liability Section, will give us some good information this month. Kendall has successfully handled a large number of product liability cases, with many of them going to trial. As any lawyer on either side who handles Product Liability litigation knows, these cases can be very difficult, complicated and expensive. Let’s see what Kendall has for us.

Trial Tips: Trying Cases During The Pandemic

Coronavirus restrictions have significantly impacted jury trials around the country this year. Recently, Mobile County, Alabama, took the bold step of reinstituting jury trials in civil matters culminating in a jury trial in early October. Attorneys who are preparing for trial will need to be prepared to navigate a different process. Trying a case in these times will require preparation, flexibility and patience.

Many litigants will consider smaller juries, different locations to conduct the trial, and even withdrawing the jury demand to have the issues decided by a judge. In our case in Mobile, the parties could not reach an agreement on a smaller jury. Twelve jurors, plus two alternates, meant the Court had to take measures to ensure social distancing requirements.

Attorneys should prepare their clients for a longer jury selection process. Under normal circumstances, panels would be chosen at the Courthouse. Our panels were chosen at the Civic Center and then transported to the Courthouse for voir dire. All voir dire had to be conducted in the ceremonial Courtroom, which meant we were not able to meet and question our panel until late in the afternoon.

Under normal circumstances, attorneys expect to strike a jury on Monday morning and start opening arguments in the afternoon. We did not finish striking our jury until Tuesday. Attorneys must also be prepared to encounter an abnormal venire. Certain citizens, due to age and other health factors, are ineligible to serve. A venue that would normally yield a favorable jury may not due to COVID-19 restrictions.

Once the jury is chosen and the trial starts, litigants will find that the Courtroom setup will be different. In our case, the jury did not sit in the jury box. The jury was placed in the gallery to enable social distancing. While in the Courthouse, everyone was required to wear a face mask. Thus, not only was the jury behind counsel when questioning a witness, but their faces were partly shielded, limiting counsels’ ability to “read” the jury.

Because safety must always be stressed, the judge and the witness stand were protected by plexiglass. Normally, a jury seated in the jury box would be close to the witness stand. However, seating the jury in the gallery meant the witness is too far away for the jury to see them. To solve that problem, the parties had to supply a camera and two large televisions to allow the jury a close-up view of any witness. Trying cases during COVID-19 will necessitate the use of more technology.

Attorneys, Court personnel, jurors, parties and witnesses could be exposed to COVID-19 at any time. Exposure to COVID-19 of anyone could cause a delay or even a mistrial. In our case, an expert witness was exposed to COVID-19 just days before the case was set to begin making him unavailable to attend trial. The Court denied the Defendant’s Motion for a Continuance and ruled the witness could testify via Zoom. Luckily, we had the capability to use Zoom in the Courtroom. Any attorney or firm that is technology averse may find it more difficult to try a case during this pandemic. If your firm does not have in-house technology specialists for trial, hire an outside company. The ability to adjust quickly to adapt to changed circumstances was instrumental in maintaining the trial date and moving the case along to a verdict.

Without the ability to move forward with trials, the justice system will become inefficient. Trial attorneys must get their cases prepared and set for trial within a reasonable period of time. That can only be accomplished if the Judges and potential jurors feel they are safe. Trial attorneys must be prepared to modify procedures and demonstrate flexibility. Additionally, they must embrace technology and be prepared to take any steps necessary to obtain and maintain trial settings. Otherwise, justice will be delayed and thus, denied.

RECALLS UPDATE

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

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

FIRM ACTIVITIES

Employee Spotlights

LaBarron Boone

LaBarron Boone joined the firm more than 25 years ago and since then he has successfully represented clients in product liability and other personal injury and death cases. He has had quite an impact on improving product safety in America. He is a member of the firm’s five-person Executive Board, and as a Beasley Allen lawyer for more than 20 years, LaBarron has handled a vast array of important cases.

The veteran litigator was recently featured in Lawdragon’s Lawyer Limelight series, in which the nationally recognized magazine highlighted LaBarron’s successful legal career and the driving force behind his approach to practicing law – to “make the world a better place.” LaBarron was selected to serve on the Top 100 Executive Committees for both The National Trial Lawyers and the National Black Lawyers organizations.

Although he never intended to become a lawyer, LaBarron says that God had other plans and led him to the practice of law. Initially, LaBarron earned his B.S. from Auburn University in Industrial Engineering. He explained that while working as a project manager at an engineering firm, board discussions centered on the money the engineering firm spent on outside legal counsel. Those cost-control discussions created an opportunity for LaBarron to attend law school. One of his best friends and fellow industrial engineer, the president’s son, also returned to school for his MBA. The company paid for both young engineers to attend the University of Alabama for their post-graduate degrees. The bosses at the company believed the investments better positioned the company for future success.

LaBarron attributes his readiness for this opportunity to his mother who always asked him to “make the world a better place.” LaBarron says he was also influenced by the esteemed Justice Thurgood Marshall, whom LaBarron revered. As a lawyer, Justice Marshall dealt a death blow to school segregation and later became the first African American to serve on the U.S. Supreme Court. “I thought surely if I was able to become a lawyer, I might do some good just like Thurgood Marshall,” LaBarron says.

LaBarron’s background and experience as an industrial engineer as well as his mother’s urging him to “make this world a better place,” helps guide his advocacy on behalf of his clients. He strives to be a gatekeeper for fairness, justice and equality when it comes to consumer safety. LaBarron says:

Each one of my cases involves catastrophic harms and losses to people and families. Some cases even impact safety worldwide. It is so fulfilling to play a small role in making this world a safer and better place as I have been able to do through some of the cases I have worked on.

The award-winning lawyer is Martindale Hubbell AV Preeminent Rated and has been regularly selected by his peers for inclusion in The Best Lawyers in America. He was named Marquis Who’sWho in America 2020 Entrepreneurs and Business Owners from the State of Alabama. In Spring 2019, LaBarron was selected to The National Trial Lawyers Top 100, an invitation-only organization composed of the premier trial lawyers from each state or region who meet stringent qualifications as civil Plaintiff and/or criminal Defense trial lawyers. He has also been named to the LawDragon 500 Leading Plaintiff Consumer Lawyers, which is the 500 best attorneys across the nation in this category. LaBarron was recognized as Beasley Allen Litigator of the Year in 2007 and is especially proud to have been selected as Beasley Allen’s 2016 & 2017 Product Liability Lawyer of the Year. In 2009, he was given the Resurrection Catholic Mission’s Truth & Charity Award for his exemplary and extraordinary support of the Mission Center. On Sept. 22, 2005, LaBarron was the first recipient of the Hands for Children Award, presented to him at the Children’s Advocacy Center in Montgomery, Alabama.

LaBarron said that Beasley Allen is unique because of its principles and how it prioritizes those principles – God first, family second and work third. The principles also embody his mother’s motto of “making the world a better place.” He adds:

I know, for a fact, Beasley Allen has done just that! We fight injustice everywhere we find it, and when corporate greed leads to catastrophic suffering, we are there to fight for those families injured because of the tragic choices of others.

LaBarron is also actively involved in many community and social activities, such as serving on the Cleveland Avenue YMCA Board of Management, Resurrection Catholic Church Board of Trustees, Child Protect Board of Trustees, the Dexter Avenue King Memorial Foundation, and serving on the board of Medical Outreach Ministries (MOM). He also serves on the Central Alabama Community Foundation Board of Trustees (CACF), one of the largest charitable foundations in the state of Alabama with assets exceeding $27 million.

This year, LaBarron co-chaired the Montgomery Area Chamber of Commerce Ad Valorem Initiative Committee to improve funding for the Montgomery County (Alabama) Public Schools System. The committee encouraged voters to support an increase in the local property tax, which was successfully approved by Montgomery voters in the November 2020 general election. Previously, he was also selected to serve on the Alabama State University 2011 and 2013 Presidential Search Committees. He is married to Lori David Boone and they have two children, Micah and Logan.

LaBarron is a tremendous asset to Beasley Allen. He is not only a very good lawyer, he is a good person.

Sources: Lawdragon

Lydia Reynolds

Lydia Reynolds, a lawyer in our Consumer Fraud & Commercial Litigation Seciton, has substantial experience litigating complex class actions in a variety of practice areas, including consumer fraud and securities litigation. Her practice is focused on representing consumers seeking redress for violation of state and federal consumer protection statutes. Before joining Beasley Allen, Lydia represented consumers, shareholders and employees in class actions throughout the United States in an Of Counsel capacity at a prominent Plaintiffs’-side firm in New York and served as an Assistant Attorney General in the Consumer Frauds and Protection Bureau of the Office of the New York Attorney General. As an Assistant Attorney General, Lydia investigated and litigated actions against financial services corporations and manufacturers and retailers who engaged in unfair or deceptive practices. Lydia said:

I became an attorney because I wanted to fight for the social and economic rights of individuals who often struggle to seek recourse through the justice system. I have dedicated my career to representing consumers, shareholders, and employees who have suffered as a result of corporate wrongdoing.

While at her prior firm, Lydia worked alongside Dee Miles, who heads up our firm’s Consumer Fraud & Commercial Litigation Section, in Simerlein et al. v. Toyota Motor Corporation et al. The class action resulted in a settlement providing quality class-wide relief valued at up to $40 million for the benefit of 1.3 million owners of Toyota Sienna minivans with sliding doors. The settlement included a 10-year warranty for covered parts, a free inspection and reimbursement for covered repairs.

Lydia has also represented consumers, employees, and investors in a wide variety of class action litigations. At her prior firm, she represented investors in In re Empire State Realty Trust Investor Litig., a class action arising out of the initial public offering (IPO) of the Empire State Building and other historic New York City properties, ultimately securing a $55 million settlement for the class. Lydia has also represented purchasers of NYC taxi cab medallions in a lawsuit alleging consumer fraud and breach of contract by the City of New York, and has represented employees in actions brought under the Fair Labor Standards Act.

Lydia says there’s a lot she enjoys about the practice of law – learning about new industries, working with intelligent, driven people from all walks of life, and the opportunity to hone her writing skills – but, she says:

My favorite aspect about the practice of law is that I have the privilege of representing groups of people who have been harmed by large organizations and may have no other recourse. I am honored to tell their stories and seek justice for these individuals. I love the fact that I get to learn something new every day, and that the legal profession at its best simultaneously respects precedent and experience while remaining flexible and open to creative arguments and new ideas.

Lydia earned a Bachelor of Arts degree in English from Temple University. She attended the University of Pennsylvania Law School, earning her law degree in 2007. While in law school, Lydia served as Production Editor of the Journal of Constitutional Law, and served as a board member and volunteer with the Custody and Support Assistance Clinic, providing advice in family law matters to pro se indigent litigants.

An award-winning attorney, Lydia has been selected to the Super Lawyer list and previously was named a Super Lawyer Rising Star. She is a member of the New York City Bar Association and the Consumer Litigation Committee of the American Bar Association. She served as a panelist in the March 2018 “What’s Next in Class Actions” roundtable discussion presented by the Consumer Litigation Committee of the ABA. Additionally, Lydia served as a co-presenter of the January 2020 Lawline CLE “How to Mediate a Class Action Lawsuit.”

Lydia is equally committed to improving her community. She has volunteered with Lawyer Moms of America, a nonpartisan, grassroots organization harnessing the power of constituent activism to advocate for the legal and political rights of historically marginalized children and families who live in and seek entry to the United States. Lydia has also volunteered her time to a number of local, state, and federal election campaigns.

A Philadelphia, Pennsylvania, native, Lydia has lived in New York City since graduating from law school in 2007. She continues to reside there with her husband, James, and their two young children. In her free time, Lydia enjoys reading fiction, traveling, running and yoga.

Lydia explained that what brought her to the firm was a desire “to be part of a team that truly believes in its mission to represent people who have been harmed by corporate wrongdoing, and that was committed to ‘going the extra mile’ for its clients.”

At the time of her interview for this Report Lydia had this to say about the firm:

I’ve only been with the firm about a week, but in that short time I have been made to feel welcome (despite being located so far away!) and have been consistently impressed with the professionalism, friendliness, and passion of my colleagues at Beasley Allen.

We are fortunate to have Lydia at Beasley Allen. She will be a tremendous addition to the firm.

Marc McHenry

Marc McHenry has been with Beasley Allen for seven years and is one of our Investigators in the Personal Injury & Product Liability Section. As an investigator, Marc is utilized at the onset to gather information by obtaining copies of accident reports, incident offense reports, driver and criminal history reports and other reports as they relate to the case. The investigators will complete inspection reports describing the inspections and any findings of significance.

Marc has been married to his wife Kay for 29 years. Kay is currently employed with Southern Company working with Southern Linc Wireless. They have two children, Krystin age 28 who graduated from Troy University and Dalton age 21, who attends Auburn University. Marc and Kay attend Coosada Baptist Church.

Marc’s hobbies include hunting, boating, and working on various projects such as property management and remodeling. When asked what his favorite thing is about working at Beasley Allen, Marc says:

Working with other employees as a team helping other people. It is a pleasure to work with people who are focused, and team oriented with a common goal. I also enjoy traveling and meeting clients and experts to gather information to assist the attorneys in representing our clients.

Marc does outstanding work in his extremely important position with the firm. The work of an investigator at Beasley Allen is critically important to the firm and to our clients in their quest for justice. We are blessed to have Marc with the firm.

Andrea Shields

Andrea Shields, who has been with Beasley Allen for two years, is a Medical Claims Analyst in our Mass Torts Section. Andrea evaluates and consistently reviews Mass Tort cases in accordance with our criteria for each area of Mass Torts litigation. This involves compiling and documenting key case medical data, determining where the cases fit into the criteria, and providing this analysis to the lawyers and support staff.

Andrea was born in Detroit and her family relocated to Selma when she was a child. She is engaged to be married and has a 27-year-old daughter, Kenaeshaie, who is completing a Medical Billing and Coding Program. Andrea also has a 24-year-old son, William. She has six grandchildren, four boys and two girls.

In her spare time, Andrea is going to school to become a Registered Nurse. When she isn’t studying or working, she loves spending time with her grandchildren and she says “spoiling them.”

When asked what her favorite thing is about working at Beasley Allen, Andrea says:

The environment is amazing. I work closely with a great group of people. Since I’ve been with Beasley Allen there has not been one day where I felt like I didn’t want to be a part of this wonderful family.

Andrea is a hard-working and dedicated employee who is good at her job. We are most fortunate to have her with the firm.

Cindy Weber

Cindy Weber has been with the firm for 19 years. She is a Staff Assistant in our Mass Torts Section where she assists with ordering medical records on behalf of our clients and making sure the records received reflect our company’s criteria. This is very important in the handling of a mass torts case.

Cindy, a native of Montgomery, grew up in the middle of two brothers. She attended Lanier High School. After a year in Secretarial school, she married a Navy Pilot, moved to the west coast, and she says loved traveling, while being a navy wife.

Cindy’s daughter, Ashley, and her husband Jason live in Georgia. Cindy’s granddaughter, Anna Caroline, is currently a Junior majoring in Biology at the University of Georgia with the hopes of attending medical school. Her grandson, Greyson, is a Freshman at Kennesaw State University, majoring in Electrical Engineering

In her spare time, Cindy says she enjoys reading and spending time with friends. When asked what her favorite thing is about working at Beasley Allen, Cindy says:

Working with our clients is the best part of my job. The attention given to clients always yields a wealth of information regarding their current health situation and how we can best help them with their individual case.

Cindy does good work and is a hard worker who is dedicated to the clients she works with. We are fortunate to have her with us.

SPECIAL RECOGNITIONS

Beasley Allen Lawyers From Atlanta And Montgomery Make The List Of The Best Lawyers® In America

Twenty Beasley Allen lawyers were recently recognized in The Best Lawyers in America® 2021. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. The following lawyers were included on the list.

The firm’s Founder, Jere L. Beasley (included since 2011), along with Greg Allen (the firm’s Lead Products Liability Attorney) – (included since 2011); Mike Crow – (included since 2011); Tom Methvin (the firm’s Managing Attorney) – (included since 2006); Cole Portis (Personal Injury Section Head), (included since 2011); Dee Miles, (Consumer Fraud Section Head) – (included since 2011); Andy Birchfield, (Mass Torts Section Head) – (included since 2007); Rhon Jones (Toxic Torts Section Head) – (included since 2011); Chris Glover (the firm’s Managing Attorney – Atlanta) – (included for the first time in 2021); Ben Baker, (included since 2013); LaBarron Boone, (included since 2011); David Byrne, (included since 2012); Kendall Dunson, (included since 2016); R. Graham Esdale, (included since 2011); Ben Locklar, (included since 2017); Leigh O’Dell, (included since 2011); Roger Smith, included since 2012; Gibson Vance, (included since 2012); Navan Ward, (American Association for Justice President-Elect) (included since 2018); and Frank Woodson, (included since 2016).

Three Beasley Allen lawyers were also specifically recognized for their successes and were named “Lawyer of the Year” in three categories:

  • Greg Allen was named the Best Lawyers® 2021 Personal Injury Litigation – Plaintiffs “Lawyer of the Year” in Montgomery.
  • Leigh O’Dell was named Best Lawyers® 2021 Mass Tort Litigation / Class Actions – Plaintiffs “Lawyer of the Year” in Montgomery.
  • Ben Baker was named Best Lawyers® 2021 Personal Injury Litigation – Plaintiffs “Lawyer of the Year” in Montgomery.

Four additional Beasley Allen lawyers were included in The Best Lawyers® in America: Ones to Watch 2021 edition:

  • Ryan Kral was named to The Best Lawyers® in America: Ones to Watch Environmental Law list.
  • Parker Miller was named to The Best Lawyers® in America: Ones to Watch Personal Injury Litigation – Plaintiffs list.
  • Stephanie Monplaisir was named to The Best Lawyers® in America: Ones to Watch Personal Injury Litigation and Products Liability Litigation – Plaintiffs list.
  • Brittany Scott was named to The Best Lawyers® in America: Ones to Watch Mass Tort Litigation / Class Actions – Plaintiffs list.

Best Lawyers lists are based entirely on peer-review evaluation. Lawyers are not required or allowed to pay a fee to be listed; therefore, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

FAVORITE BIBLE VERSES

Mike Crow, a lawyer in Beasley Allen’s Personal Injury & Products Liability Section, supplied two verses for this issue. He says that “with all that is going on in the U.S. at this time these two verses Come to mind, one from 1 Corinthians 10:13.”

No temptation has overtaken you except such as is Common to man; but God is faithful, who will not allow You to be tempted beyond what you are able, but With the temptation will also make the way of escape, That you may be able to bear it. 1 Corinthians 10:13

The second one is from 1 Chronicles 28:20:

Be strong and courageous, and do the work. Do not be Afraid or discouraged, for the LORD God, my God, is with you. He will not fail you or forsake you until all the work for the service of the temple of the LORD is finished. 1 Chronicles 28:20

David Dearing, a lawyer in the firm’s Mass Torts Section, also furnished some verses for this issue. He says:

In this historic season of our nation, amid the worst health crisis in our history, hateful political divisions not seen since the civil war, and with the largest election ever in America – resulting in a new President – it’s easy for us to become stricken with fear, anxiety, depression and overall emotional fatigue. But we are also entering the Holy season of Christmas – as we deeply reflect when the God of all creation sent his son as a helpless baby into a chaotic and oppressive land governed by brutal and paranoid Roman governors and kings, so that, through Christ’s ministry and ultimate sacrifice, mankind might once again enjoy renewed hope and a right relationship with God. In short, Christ brought a message of love and hope to a broken world. Christ still offers that message of hope, love and redemption today! I pray our nation hears that message – AND RECEIVES IT!

An angel of the Lord appeared to them, and the glory of the Lord shone around them, and they were terrified. 10 But the angel said to them, “Do not be afraid. I bring you good news that will cause great joy for all the people. 11 Today in the town of David a savior has been born to you; he is the Messiah, the Lord. 12 This will be a sign to you: You will find a baby wrapped in cloths and lying in a manger.13 Suddenly a great company of the heavenly host appeared with the angel, praising God and saying,14 “Glory to God in the highest heaven, and on earth peace to those on whom his favor rests.” Luke 2: 9-14

For God so loved the world that he gave his one and only Son, that whoever believes in him shall not perish but have eternal life. 17 For God did not send his Son into the world to condemn the world, but to save the world through him. John 3:16-17

May the God of hope fill you with all joy and peace as you trust in him, so that you may overflow with hope by the power of the Holy Spirit. Romans 15:13

Whitney Gagnon, a paralegal in our Consumer Fraud & Commercial Litigation Section, supplied two verses for this issue. Whitney says:

As we begin to celebrate the holidays, I am reminded by this verse to take the time and appreciate the joy of our Saviors birth. No matter how fearful life may seem at times, rejoice in the beautiful news that God is here to take away the sins of the world.

And the angel said unto them, Fear not: for, behold, I bring you good tidings of great joy, which shall be to all people. Luke 2:10

Whitney says further:

Although we may not fear the same, fear is universal. No matter how hard we try and brave our way through life, it seems inevitable that one day, we must accept these feelings. Health, death, our possessions, the unknown; Isaiah 41:10 not only reminds us to trust God, but it allows us to be emotionally stronger because He knew we would need to be. Whatever we are facing, it is not bigger than God. We are continuously encouraged to be strong and fear not because He is with us and He is what brings me strength one day at a time.

fear not, for I am with you; be not dismayed, for I am your God; I will strengthen you, I will help you, I will uphold you with my righteous right hand. Isaiah 41:10

CLOSING OBSERVATIONS

The Future Of Public Education In Alabama’s Capital City

The people of Montgomery County spoke loudly on Nov. 3, voting a resounding YES by a margin of 61.1% to 38.9% to increase property taxes to better fund Montgomery Public Schools (MPS). With that vote, the people vowed to support and encourage MPS, which has been sorely neglected for years, receiving only the mandatory funding increases and little public support over the past few decades. Beasley Allen lawyer LaBarron Boone, who served on the Chamber of Commerce Select Task Force working on the project, says:

I am proud to have spent time serving on the Chamber of Commerce taskforce developed to educate Montgomery citizens on this very important vote. Raising two children who have attended public schools I am keenly aware of the roadblocks ahead but I am encouraged because of the positive influences and tenacity of the teachers and administration my family has witnessed over the past 13 years.

The vote will increase the current tax rate by 12 mills, which is estimated to generate about $33 million for the school system, and the average family would pay only about $12.75 more per month in property taxes. This increase will allow MPS leadership and faculty to compete with neighboring Pike Road and Auburn districts.

This vote was critically important for the Capital City. Montgomery is now poised to move forward as a strong and vibrant Capital City. We all want a place our children and grandchildren can return to and raise a family. Improving our public school system will pay dividends over the coming generations, allowing not only for personal growth but economic growth with businesses choosing to locate to our city and allowing existing businesses the opportunity to grow with a strong hiring pool and a place for their employees to send their own children. The economic and social future of the Capital City was at stake in this vote. Today that future is much brighter for this and future generations.

Our Monthly Reminders

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

2 Chron 7:14

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

Edmund Burke

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

Isaiah 10:1-2

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

Martha Washington (1732 – 1802)

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

Louis Brandeis, 1937
U.S. Supreme Court Justice

Injustice anywhere is a threat to justice everywhere.

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

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

Martin Luther King, Jr.

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

Vincent Lombardi

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

Mark Twain (1835-1910)

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

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

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

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

Theodore Roosevelt Sr., December 16, 1877

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

Bryan Stevenson, 2019

Get in good trouble, necessary trouble, and help redeem the soul of America.

Rep. John Lewis speaking on the Edmund Pettus Bridge in Selma, Alabama, on March 1, 2020

Ours is not the struggle of one day, one week, or one year. Ours is not the struggle of one judicial appointment or presidential term. Ours is the struggle of a lifetime, or maybe even many lifetimes, and each one of us in every generation must do our part.

Rep. John Lewis on movement building in Across That Bridge: A Vision for Change and the Future of America

PARTING WORDS

Regardless of how we voted on Nov. 3 in the presidential race, the time has come for all Americans to get behind the person who won the most important race in my lifetime. The presidential race is over and Joe Biden is the President-Elect. There have been unfounded claims by the loser of cheating and fraud, which have only served to further divide our nation. It’s quite obvious there was no fraud and no wrongdoing committed during the voting and that the vote-counting in the states was closely monitored and all applicable laws followed.

This was the most closely watched and monitored race in our country’s history. Any person who falls for the false claims of fraud and participates in this charade is helping to destroy our democracy and endanger the U.S. from a national security perspective. The endless number of lawsuits filed by the Trump campaign – led by Rudy Giuliani –have been totally unsuccessful.

The overwhelming majority of Americans believe Donald Trump should concede and allow for a peaceful transition of power to take place. Unfortunately, Trump is doing his best to further divide our county and to foster more hate and mistrust of our government. Trump’s bizarre antics are playing directly into the hands of Russia and other foreign leaders who oppose America and want our nation to be further divided and fail. Trump is also making it difficult for our allies to do their job in a number of international areas of concern.

Our country was already divided when this race started and that division grew wider during the campaign and the division is still growing. We must replace hate with love for one another and replace division with unity. All Americans, regardless of political party affiliation, must join together and make sure the transition to the new administration is truly peaceful and without roadblocks set up by the Trump loyalists.

My prayer today is for unity. I pray further that America will follow the solution found in the Holy Bible, which is set out below.

If My people who are called by My name will humble themselves, and pray and seek My face, and turn from their wicked ways, then I will hear from heaven, and will forgive their sin and heal their land. 2 Chronicles 7:14

May God bless America!