This month, we will write on activity in the Consumer Fraud & Commercial Litigation Section of the firm. Dee Miles, in his capacity as Section Head, manages the Section. Michelle Fulmer serves as the Section Administrator. The Section has been very busy during 2017. Currently, lawyers in the section are investigating and/or litigating the following cases:

USFL Complaint Filed In Ohio Federal Court

Beasley Allen lawyers recently filed a class action lawsuit in the Southern District of Ohio against U.S. Financial Life Insurance Co. (an AXA Company) for its unfounded cost of insurance (COI) increases. The complaint alleges that these increases are being implemented ultimately to benefit shareholders and rid U.S. Financial Life (USFL) of near-term liabilities it has accrued due to its wrongful use of captive reinsurance companies.

Similar to the arrangement our lawyers have seen implemented by several life insurance companies, USFL has also engaged in a captive reinsurance scheme whereby USFL has dumped more than $865 million worth of liabilities into a wholly owned reinsurance company – effectively transferring these liabilities nowhere. Nonetheless, this creates a false surplus on USFL’s financial documents, allowing the company to paint itself as a supremely healthy insurer. All the while, USFL and its captive reinsurers are incapable of satisfying its assumed obligations.

For more than a decade, USFL has pretended to offload billions of dollars of liabilities to its wholly owned captives and other affiliates. These captive companies are strategically domiciled in jurisdictions that allow the “reinsurers” not to file any public financials, hiding the true nature and details of these transactions.

In 2013, the North Carolina Department of Insurance notified USFL that it had been charging above the guaranteed maximum COI rate for a block of 3,000 policies. USFL was required to reimburse both lapsed and existing policyholders within the affected policies. Beginning in 2014 and throughout 2015, tens of millions of dollars were set aside and paid out to those affected policyholders. In 2015, the same year USFL finished paying off this costly mistake, it suddenly announced the COI increase charged to certain universal life policyholders.

Because of the reinsurance scheme described above, and USFL’s required reimbursement to policyholders charged in excess of their policy guarantees, USFL does not have sufficient reserves to pay the death benefits coming due in the near future. Faced with the unprecedented death benefit obligations, and a significant reserve shortfall, USFL chose to increase the COI charges on the Nova and SuperNova universal life policies, believing that the owners of these policies either (1) had the resources to pay exorbitant COI charges, or (2) would allow their policies to lapse, thus relieving USFL of its payment obligations. This COI increase was as high as 40 percent for many policyholders.

USFL has told policyholders that dramatic COI increases are necessary because USFL “anticipate[d] the future mortality experience for this product to be worse than was anticipated when the current schedule of cost of insurance rates was established.” However, in reality, this was a strategic increase implemented by USFL so that it could systematically raid policyholder accounts in order to accomplish three objectives:

• find new cash with which to fund the company;

• rid itself of near-term liabilities and delay inevitable financial disaster; and

• recoup for past losses.

Because of these actions, Plaintiffs and Class Members are seeking relief under breach of contract, unjust enrichment, conversion, and fraud theories.

Unfortunately, USFL is not the only insurance company raising premiums and cost of insurance in order to account for its wrongful use of captive reinsurance schemes. Multiple other life insurers have sent their universal life and/or flexible premium policyholders letters informing them of an upcoming raise in costs – usually claiming these increases are due to “an increase in mortality rates.” In order to avoid a loss of coverage, consumers are paying these increases – oftentimes tripling or quadrupling the policyholders’ original costs.

Lawyers at Beasley Allen have filed numerous lawsuits based on this wrongful activity. They are currently preparing to file additional lawsuits against other companies. If you have seen this practice by any life insurance company, there may be a claim that our firm can investigate and help with. You can contact Andrew Brashier or Rachel Boyd, lawyers in our Consumer Fraud & Commercial Litigation Section, at Andrew.Brashier@beasleyallen.com or Rachel.Boyd@beasleyallen.com. You can call them at 800-898-2034 to discuss further.

Life Insurance

Our firm has recently filed three class action lawsuits against separate companies, Banner Life, William Penn Life and Voya/Lincoln Life Insurance Company, alleging that the cost of insurance increases these companies have implemented on certain policies are unfounded. Policyholders are seeing increases of more than 500 percent in some cases, and the cash value of their policies are being stripped down to zero dollars in a matter of months. It appears that these increases have been executed ultimately to benefit shareholders and rid the company of near-term liabilities it has accrued due to its wrongful use of captive reinsurance companies. We have also filed some individual cases against Transamerica Life Insurance Company and AXA for the same reasons. We are attempting to recover the excess insurance costs paid out-of-pocket or stripped from the value of these policies. Additionally, we are looking into many other life insurance companies with similar unfair practices and welcome the opportunity to review additional policies that have seen sudden increases in costs or premiums.

Lawyers: Dee Miles, Andrew Brashier, and Rachel Boyd
Primary Staff Contact: Michelle Fulmer, Ashley Pugh, and Ashley Burgin

Class Actions

Our firm’s class action practice is continuing to grow. Lawyers in the Section have cases filed all over the country ranging from consumer fraud, antitrust, employment abuses, ERISA to product liability cases. This area of our practice continues to grow due to the corporate abuses in the business world.

While arbitration clauses have had some impact on class action filings, it has not proved to be the effective deterrent corporate America intended. This is mainly due to the courts finally recognizing that arbitration was never intended to be utilized in consumer transactions. Arbitration was designed for complex business transactions involving sophisticated parties in specialized areas of business. However, corporations have manipulated the use of arbitration clauses to frustrate consumer resistance to their fraudulent practices.

Recently, the Consumer Financial Protection Bureau (CFPB) mandated a ban on most types of mandatory arbitration clauses in credit card agreements and back account agreements. The CFPB issued this ban on some mandatory arbitration clauses as part of the 2010 Dodd-Frank Act, which created the CFPB and empowered it with rule-making authority regarding consumer mandated arbitration clauses. However, congress will ultimately have a final say on the arbitration bill. Stay tuned.

Just because a consumer contract has an arbitration clause, that doesn’t mean a class action on the abusive corporate conduct is barred. There may be ways around the arbitration clause and a lawyer familiar with the ever-changing law on this issue can make that determination. Our lawyers in the consumer fraud/commercial litigation section are well versed in the area of the law surrounding both class actions and arbitration clauses. We review many potential class actions daily and welcome the opportunity to review more.

Volkswagen/Audi/Porsche Emissions Defect

It is no secret that our firm joined with other firms to file a nationwide class action lawsuit on behalf of consumers that own Volkswagen, Audi and Porsche vehicles who were deceived by the automaker’s deliberate “end-run” around Environmental Protection Agency (EPA) pollution controls. We were most fortunate to have been selected by Judge Charles R. Breyer, United States District Judge in California, located in San Francisco, California, to serve on the Plaintiff’s Steering Committee of this most important case. Dee Miles was selected by the court and he has been quite busy on this case over the last year and a half, but we are pleased to be part of the three-part Volkswagen settlement of the “cheat device” class; the $15 billion 2.0 Volkswagen settlement announced in July 2016; the $4 billion 3.0 settlement announced in February 2017; and the Bosch Volkswagen settlement of $327.5 million also announced in February 2017.

In addition Volkswagen agreed to pay $4.3 billion in civil/criminal penalties to the federal government as part of a plea bargain. To date the Volkswagen scandal has cost Volkswagen nearly $24 billion. However, there are still other Volkswagen cases that remain pending, including the cases our firm has filed on behalf of the Environmental Protection Commission of Hillsborough County, Florida, to recover statutory penalties for violations of a local clean air ordinance for these allegations.

The illegal defeat devices installed in the Defendants’ diesels affect more than 1,000 vehicles in the greater Tampa area. If you own one of the affected vehicles, and need help with your class claim, please contact one of our class action attorneys for more details.

Lawyers: Dee Miles, Archie Grubb, and Clay Barnett
Primary Staff Contacts: Michelle Fulmer, Ashley Pugh and Whitney Gagnon

Fiat Chrysler Emissions Defect

On June 19, 2017, U.S. District Judge Edward Chen appointed Dee Miles to the Plaintiffs Steering Committee for the Fiat Chrysler Emissions fraud MDL (multidistrict litigation) along with nine other firms. Our friend Elizabeth Cabraser, from the firm of Leiff Cabraser, was named as the sole lead counsel and we were selected for the “VW like” litigation in the Northern District of California located in San Francisco.

Though similar to the VW litigation on emission cheat devices, the Fiat Chrysler case involves only about 100,000 Jeep Cherokees and Dodge Ram pickup trucks, but involves Bosch as a Defendant and the Plaintiffs class is joined by the U.S. Department of Justice, the California Air Resources Board and other government agencies.

We look forward to prosecuting our class action in the MDL and working together with the team of fine private and government lawyers representing this MDL.

Lawyers: Dee Miles, Archie Grubb, and Clay Barnett
Primary Staff Contacts: Michelle Fulmer, Ashley Pugh and Whitney Gagnon

Takata Airbags

Lawyers in the Section have filed a class action lawsuit for economic losses related to the potentially defective airbags manufactured by Takata Corporation. We were fortunate to have been selected by the MDL Leadership to conduct discovery in this case and are working furiously to move this case along to trial and class certifications. While vehicle owners and drivers could not have known about the potential danger posed by the airbags, the Defendants knew about the defect and failed to disclose it to consumers and actively concealed that defect from the public and federal regulators. It was not until December 2011, when the fifth recall was issued related to the same defect, that Honda finally reported the injuries and deaths related to the Takata airbags to federal regulators. To date, more than 14 million vehicles with Takata-manufactured airbags have been recalled due to the defects.

Recently, Toyota, Mazda, Subaru and BMW collectively reached a settlement agreement with consumers for $553 million to cover economic losses to the value of their vehicles due to the Takata airbag defect.

Also, Takata filed for Chapter Eleven bankruptcy protection, but a panel has been set up to provide relief to personal injury victims for other losses through the bankruptcy court in Japan. We will continue to prosecute the class claims against Honda, Ford and Nissan, and will keep our readers updated on any new developments in this cases.

Lawyers: Dee Miles, Archie Grubb, Clay Barnett, and Andrew Brashier
Primary Staff Contact: Michelle Fulmer, Ashley Pugh, and Whitney Gagnon

General Motors

The consumer fraud section is also involved in the class action lawsuits against general motors concerning GM model vehicles (listed below), alleging the Generation IV 5.3 Liter V8 Vortec 5300 engine rapidly consumes oil at a rate that greatly exceeds industry standards. This excessive oil consumption results in low oil levels and internal engine damage.

The oil consumption defect is caused by low-tension oil control rings that GM installed within its Generation IV 5.3-Liter V8 Vortec 5300 passenger engines. The low-tension oil rings are incompatible with these engines as they allow an excessive amount of engine oil to enter the engine’s combustion chambers – where it is consumed or accumulates – resulting in oil loss.

GM offered the defective 5.3-liter engines in the following vehicles (the “Class Vehicles”):

  • 2010-2013 Chevrolet Avalanche
  • 2010-2012 Chevrolet Colorado
  • 2010-2013 Chevrolet Express 1500
  • 2010-2013 Chevrolet Silverado 1500
  • 2010-2013 Chevrolet Suburban
  • 2010-2013 Chevrolet Tahoe
  • 2010-2013 GMC Canyon
  • 2010-2013 GMC Savana 1500
  • 2010-2013 GMC Sierra 1500
  • 2010-2013 GMC Yukon
  • 2010-2013 GMC Yukon XL

GM’s “Oil Life Monitoring System,” which is supposed to alert drivers when it is time for an oil change, makes the problem worse because it does not properly monitor the engine oil level. As the oil ring defect rapidly depletes the engine’s oil reserves, the Oil Life Monitoring System dangerously encourages drivers to travel farther than the engine can safely handle due to inadequate oil levels.

Beginning with its 2014 models, GM began installing a materially redesigned Generation V 5.3 Liter V8 Vortec 5300 engine, which was designed to remedy the excessive oil consumption problem. The redesigned engine abandoned the low-tension oil control ring engineering failure and returned to the use of standard tension oil rings. However, despite knowing that vehicles equipped with faulty 5.3-liter engines remained on the road, GM has done nothing to alert owners and lessees that their vehicles may be unreliable and unsafe.

We have filed the complaint in the Northern District of California federal court. Filed on Dec. 12, 2016, the case name is Monteville Sloan, Jr., Raul Siqueiros et al, vs General Motors 3:16-cv-07244.

Lawyers: Dee Miles, Clay Barnett, Archie Grubb and Andrew Brashier
Primary Staff Contact: Michelle Fulmer, Ashley Pugh and Whitney Gagnon

Talc

The firm is representing a class of California citizens who were deceived into believing that Johnson and Johnson’s talc-based products were safe and purchased those products for genital hygiene use. Some recent studies have demonstrated a significantly increased risk of ovarian cancer for women who use talc-containing products on their genitals. Johnson and Johnson has been aware of the risk, or should have been, for years, yet the company continues to market its products as safe for daily use. These citizens would not have purchased the baby powder and other talc products had they known of the increased risk of ovarian cancer, but thanks to Johnson and Johnson’s marketing, believed they were purchasing and using a safe product. Beasley Allen represents these citizens in an effort to recover the money they spent on these cancer-causing products that they would not have spent absent Johnson and Johnson’s marketing.

Lawyers: Dee Miles, Lance Gould, and Ali Hawthorne
Primary Staff Contacts: Holly Busler and Jessica Stapp

Oil and Gas

The firm has also filed a class-action complaint against oil and gas companies involving royalties owed to landowners for the sale of natural gas. The landowners signed leases with the oil and gas companies granting them the right to drill and produce natural gas and constituents. In exchange, the companies were to pay the landowners royalties as a share of the production income. Instead of selling the gas in arms-length transactions on the open market, the companies sell to affiliates at grossly inadequate prices. Landowners’ royalty payments are calculated off that first sale. The company affiliate or related entity that first purchased the gas then sells the products at market price. The company keeps the difference between what it would have paid in royalties to the landowners had those first sales been made at market price and the fraudulently low royalties it actually did pay the landowners.

Lawyers in the Section are representing the class of landowners and are seeking to recover the money those landowners would have received had XTO properly sold the natural gas on the market.

Our lawyers are pursuing a similar case in Monroe, Louisiana.

Lawyers: Lance Gould, Larry Golston and Leslie Pescia
Primary Staff Contact: Holly Busler and Whitney Gagnon

Home Depot Data Breach

Dee Miles was appointed to the Plaintiffs Steering Committee (PSC) representing financial institutions in the multidistrict litigation (MDL) over a massive Home Depot data breach. The litigation involves consumer and financial institution Plaintiffs who were affected by the incident, which compromised up to 56 million credit and debit card numbers. The cyberattack is believed to have occurred at Home Depot stores between April and September of 2014. The MDL Court recently and preliminarily approved a settlement valued at $27 million for the financial institutions and we will be moving forward to finalize this important settlement.

Lawyers: Dee Miles, Larry Golston, Andrew Brashier, and Leslie Pescia
Primary Staff Contact: Michelle Fulmer, Ashley Pugh, and Ashley Burgin

Silent Recalls

Lawyers in the section are investigating numerous safety defects involving multiple auto manufacturers and varying models. Although there are more active recalls now than ever before, every potential defect has not necessarily been placed under a mandatory recall. Auto manufacturers commonly conduct “silent recalls” – where the dealer only repairs a defect once a consumer complains about the specific defect even though the manufacturer is aware of the defect. This practice leaves thousands of American motorists unaware of the defective components in their vehicles. Alternatively, auto manufacturers are able to conduct regional recalls that are only disseminated to a particular region, leaving consumers outside the specified region unaware of the recall. Under this process, the same make and model under recall in one state may not be under recall just over the state line. If you have a vehicle with a safety defect and the manufacturer has refused to repair your vehicle under the warranty, then you may have a case. Please contact one of our class action attorneys for more details.

Lawyers: Dee Miles, Archie Grubb, Clay Barnett, and Andrew Brashier
Primary Staff Contacts: Whitney Gagnon and Ashley Burgin

ERISA litigation

The Employee Retirement Income Security Act of 1974 (ERISA) dictates certain minimum standards for voluntarily established health and benefit plans. Employers sometimes violate the requirements of ERISA, to the detriment of their employees. If these violations are plan-wide, or affect a large number of employees, it is possible to form a class to seek recompense and/or to force compliance. Please contact us with information regarding any instances where ERISA’s requirements have been violated; we are particularly interested in self-funded employee health benefit plans.

Lawyers in the Section recently filed an ERISA class against Wells Fargo for withholding information concerning the Wells Fargo stock within the ERISA plan, which caused losses to the plan. The information involved the fraudulent accounts scheme that Wells Fargo engaged in. The bank has now paid more than $100 million to the federal government in fines and restitution. This fraudulent scheme was ongoing while bank members with knowledge of the scheme continued to suppress it while managing the assets of the ERISA plan and were authorizing more company stock purchases for the plan.

Lawyers: Dee Miles and Rebecca Gilliland
Primary Staff Contact: Michelle Fulmer and Ashley Pugh

QUI TAM CASES

A qui tam action involves a private party, called a relator, who asserts claims on behalf of the government. Although the government is considered the real (named) Plaintiff, if the action is successful, the relator receives a share of the award. Most qui tam actions are brought under the federal False Claims Act (FCA), 31 U.S.C. § 3729, et seq., although many States have adopted their own false claims acts. The successful results speak for themselves – more than $34 billion in recoveries since 1986 – and that tells us a powerful story. Our firm is currently involved in a number of these qui tam cases throughout the country.

Qui tam actions typically begin with an employee witnessing his/her employer defrauding the government. The employee may later consult with an attorney on another matter, but convey their knowledge of false information being given to the government. Attorneys need to be on the lookout for such information and recognize potential claims.

It takes vigilance and courage for these private individuals, commonly referred to as “whistleblowers,” to report fraudulent activity; but without them, the vast majority of fraud against our government would go undetected. Recognizing the perils faced by whistleblowers, legislators have passed laws protecting individuals who take a stand against fraud. 31 U.S.C. § 3730 prohibits discrimination and retaliation against whistleblowers and imposes strict penalties, including double back pay with interest, on violators.

Additionally, if a qui tam action is successful, the whistleblower receives between 10-30 percent of the Government’s recovery. Damages under the FCA include penalties and “3 times the amount of damages which the Government sustains” due to the fraud. 31 U.S.C. § 3729(a)(1)(G). In short, the law protects and rewards whistleblowers for their instrumental role in exposing and prosecuting fraud. Lawyers in our firm have waged war against corporate fraud for more than 30 years and would welcome the opportunity to assist with any qui tam actions that any of our readers may have.

Lawyers: Dee Miles, Larry Golston, Archie Grubb, Clay Barnett, Ali Hawthorne, Andrew Brashier, and Rebecca Gilliland
Primary Staff Contact: Holly Busler

ANTITRUST CASES

Lawyers in the Section continue to investigate and litigate antitrust cases. Antitrust law is the law of competition. The consuming public is better off if buyers and sellers act independently, not in concert. Antitrust law focuses on the promotion of competition through restraints on monopoly and cartel behavior. Typical cases involve attempts to monopolize, price fixing, exclusive distributorships, refusals to deal, tying arrangements, and mergers and acquisitions. We believe that antitrust is a growing area, as corporations increasingly tend to “cross the line” as they seek to gain advantage in this tough economy. The firm is currently heavily involved in antitrust litigation against Blue Cross Blue Shield companies.

Blue Cross Blue Shield

Lawyers in the Section are currently involved in an antitrust cases dealing with Blue Cross Blue Shield’s illegal actions. The BCBS case involves the Blues’ agreements not to compete with each other. BCBS has separate companies that cover different geographical regions of the country. Those individual companies agreed amongst themselves to stay out of other geographic regions. For example, BCBS of Alabama and BCBS of Mississippi agreed to not compete with each other for providers (hospitals and physicians) or subscribers (individual and group policyholders). Normally, competition in a certain area drives costs down with each company trying to be the lowest available. Absent competition, the companies were able to set prices for both reimbursement and premiums at any price they chose.

Fortunately, we are honored to be serving on the leadership of this multidistrict litigation (MDL) and are diligently pursing discovery in the case as the Alabama portion of this MDL is headed for trial in 2017.

Lawyers: Dee Miles, Archie Grubb, and Rebeca Gilliland
Primary Staff Contact: Michelle Fulmer, Ashley Pugh and Whitney Gagnon

Capacitors

The capacitor litigation involves a price-fixing scheme. Capacitors are, generally, tiny but are in nearly every electronic device on the market. The manufacturers agreed amongst themselves to only sell their products at a certain price, one that is above what normal market conditions would dictate. Their actions caught the attention of several United States and foreign agencies, including the Department of Justice, who are investigating the illegal agreements. Beasley Allen and other national firms we are working with moved quickly to recover damages for those directly injured by the price-fixing scheme.

Lawyers: Archie Grubb, Ali Hawthorne, Andrew Brashier, and Rebecca Gilliland
Primary Staff Contact: Jessica Stapp, Holly Busler, Whitney Gagnon and Brenda Russell

PHARMACEUTICAL LITIGATION

Lawyers in the Section handle a wide array of cases dealing with the pharmaceutical industry. These cases include AWP, unapproved drugs, Actos, Granuflo and many others.

STATE ATTORNEY GENERAL REPRESENTATION

AWP

Our firm has represented the States of Alabama, Alaska, Hawaii, Kansas, Louisiana, Mississippi, South Carolina and Utah in a series of cases against pharmaceutical companies, known as the Average Wholesale Price (AWP) litigation. These States allege that pharmaceutical companies falsified pricing information, causing state Medicaid agencies to grossly overpay for prescription drugs. The Manufacturers’ false and inflated AWPs caused pharmacies to shop for drugs that offered the highest reimbursement from the State. The inflated AWPs in turn provided higher sales revenue, volume and market share for the drug companies, and created dramatically steeper costs for the States. Juries have returned more than $600 million in verdicts for the States of Alabama, Mississippi, Kentucky, Wisconsin, Missouri and Massachusetts. We recently won the appeal of a $30 million verdict in Mississippi Supreme Court regarding Sandoz, Inc. Meanwhile, our firm has settled with many companies in all eight states for more than $1 billion and completed the litigation in all states, with the exception of two trials remaining in Utah.

Lawyers: Dee Miles and Ali Hawthorne
Primary Staff Contacts: Jessica Stapp and Brenda Russell

Molina/Unisys

At the conclusion of the AWP cases in Louisiana, the State discovered that its’ data-processing firm, Molina, had not been utilizing the correct reimbursement rate in processing payments to pharmacies. Instead of the computer system automatically calculating reimbursements with the state-approved formulary, Molina programmers apparently input the wrong data points, resulting in overpayments. Beasley Allen represents the State in seeking to recoup those overpayments from the party that caused them, which appears to be Molina.

Lawyers: Dee Miles and Ali Hawthorne
Primary Staff Contact: Jessica Stapp

Unapproved Drugs

In order for a state to reimburse pharmacies for dispensing drugs to state Medicaid beneficiaries, those drugs must be approved as Covered Outpatient Drugs. By manipulating the system, some pharmaceutical manufacturers have been able to sneak certain drugs that have not been approved for Medicaid reimbursement onto the state Medicaid reimbursement without alerting anyone. States have reimbursed pharmacies for dispensing these drugs, unaware that they were not approved, and therefore, ineligible for reimbursement. Beasley Allen represents the States of Louisiana and Mississippi in seeking to recover Medicaid reimbursements for these ineligible drugs and we are consulting with other state attorneys general.

Lawyers: Dee Miles, Lance Gould, and Ali Hawthorne
Primary Staff Contacts: Holly Busler and Jessica Stapp

GranuFlo

GranuFlo is a dialysate product used in the hemodialysis process. Several years ago Fresenius, the manufacturer of GranuFlo, realized that through a natural biological process, its product created a significantly increased risk of cardiac distress and death when not administered in a different dosage than every other dialysate product on the market. It appears that instead of warning clinics, physicians, consumers, and the states, Fresenius remained silent about the risk. Once the risk came to attention of the U.S. Food and Drug Administration (FDA), Fresenius notified its own clinics to adjust their dosage, but it appears it did not notify those owned and operated by non-Fresenius companies. Eventually, the true risk information became public.

There are several cases filed against Fresenius alleging that the Defendants actions caused injuries to individual users. Beasley Allen represents the states of Louisiana and Kentucky in seeking to recover for the reimbursements it made and damages it suffered because of the claims submitted to the states’ Medicaid office for this substandard product and Fresenius’s failure, through its marketing to physicians, clinics, and citizens, to inform its customers of the proper dosage requirements.

Lawyers: Dee Miles, Lance Gould, Ali Hawthorne, and Rebecca Gilliland
Primary Staff Contacts: Holly Busler and Jessica Stapp

Actos

Actos is a commonly prescribed drug used in treating Type 2 Diabetes Mellitus. Diabetes affects more than 26 million people nationwide. Approximately 90 to 95 percent of those 26 million Americans with diabetes suffer from Type 2 Diabetes. Actos received U.S. Food and Drug Administration (FDA) approval in 1999, but prior to that, an unreported clinical study was conducted, whereby the Defendants discovered an association between Actos and an increased risk of bladder cancer. Subsequent studies over the years have demonstrated that there is in fact a statistically significant increase in the risk of bladder cancer for individuals that have been prescribed and consumed Actos. The Defendants, manufacturers of Actos, were aware of the increased risk of bladder cancer, but downplayed and tried to discredit the numerous studies that demonstrated that risk. Beasley Allen represents the State of Louisiana in seeking to recover for the reimbursements it made and damages it suffered because of the claims submitted to the state’s Medicaid office for this substandard product and the manufacturer’s failure, through its marketing to physicians and citizens, to inform its customers of the proper dosage requirements.

Lawyers: Dee Miles, Lance Gould, and Ali Hawthorne
Primary Staff Contact: Jessica Stapp

Usual and Customary

State Medicaid agencies reimburse pharmacies for the drugs they dispense to Medicaid beneficiaries within their states. The amount that a pharmacy receives is determined by a reimbursement formulary that is set by the state and approved by the federal government.

Most states will reimburse using a “lesser of” or “lower of” formula where four to five factors are considered and the pharmacy is paid whichever amount is the lowest. These factors usually include: Wholesale Acquisition Cost (WAC), Average Wholesale Price (AWP), the Federal Upper Limit (FUL), a State-set Maximum Allowable Cost (SMAC), or the pharmacies’ Usual and Customary price (U&C) as reported by the pharmacy seeking reimbursement. U&C is generally understood to be the price charged to a cash-paying customer.

Historically, the AWP, WAC, FUL, or SMAC were lower than a pharmacy’s reported U&C, so U&C was very rarely utilized in reimbursement. However, around May of 2006, the historical U&C pricing model underwent a drastic change when Walmart and Kmart introduced their nationwide discount generic drug programs. Walmart’s discount program offered hundreds of generic drugs at $4 for a 30-day supply and $9 for a 90-day supply.

Similarly, Kmart’s discount drug program offered hundreds of generic drugs at $5 for a 30-day supply and $10 to $25 for a 90-day supply. Those low, flat-rate prices became the pharmacy’s U&C price and should have been reported to state Medicaid agencies as the U&C.

Lawyers in the Section uncovered evidence that many pharmacies with discount drug programs are not, however, reporting their flat-rate prices as their U&C, causing state Medicaid agencies to overpay large, chain pharmacies by millions of dollars. Our lawyers have filed cases for the State of Mississippi to hold these pharmacies accountable and are working closely with other state attorneys general regarding their potential state claims.

Lawyers: Dee Miles, Ali Hawthorne, Rebecca Gilliland, and Clay Barnett
Primary Staff Contacts: Michelle Fulmer, Ashely Pugh and Jessica Stapp

FLSA LITIGATION

Our firm has been handling FLSA (Fair Labor Standards Act) cases for many years. FLSA cases range from mischaracterizing an employee as a “manager” to avoid having to pay overtime wages, to employers having employees “work off the clock” to save on labor cost, but both are violations of the law under the FLSA.

Lawyers: Lance Gould
Primary Staff Contact: Holly Busler and Brenda Russell

EQUAL PAY/RACE DISCRIMINATION/AGE DISCRIMINATION

Several Lawyers in the Section are handling other employment cases involving discrimination due to gender, race, age, culture and other factors. We recently settled several cases involving these issues and hopefully bettered the work environment for many others.

Lawyers: Larry Golston and Lance Gould
Primary Staff Contact: Holly Busler

WILLS AND ESTATES

Creating a will to plan for what happens to your estate after you pass is critical. Without a will, all of a person’s possessions pass through their state’s intestate succession laws – meaning that heirloom you want your cousin to have probably will not get into your cousin’s hands without a will; it will pass to whomever the law dictates receives your estate. For some people, those with a lot of assets, even a trust is necessary to protect the estate assets for years to come. This is particularly important for people who own their own business. A trust can dictate who controls the business, what happens to business assets, and how the company profits are handled. Though the decedent would hope it does not create a dispute, sometimes the heirs of an estate dispute the validity of the will/trust or dispute the meaning of the language in the will/trust. Beasley Allen lawyers are looking into these disputed wills and trusts involving large estates.

Kessler

Beasley Allen teamed up with The CBC Law Group in Nashville to litigate an estate dispute involving the estate of the late Gerald A. Kessler. Mr. Kessler died in March 2015 at the age of 80, leaving an estate believed to be valued at more than $800 million. In dispute is an Amendment created in 2013 to the Gerald A. Kessler Revocable Trust that gives Melanie Kay Williams (an actress also known by the stage name Meadow Williams) control over almost all of his assets as Trustee. It further established her as, essentially, the sole and exclusive beneficiary of the estate. The Petition filed on behalf of the Kessler family alleges Ms. Williams, who is 31 years younger than Mr. Kessler, manipulated and unduly influenced him to execute new estate planning documents through actions including bigamy, undue influence and elder abuse.

Lawyers: Dee Miles, Lance Gould, and Leslie Pescia
Primary Staff Contact: Holly Busler

CONCLUSION

These are some of the highlights of the Section’s work. Our lawyers continue to dedicate their practice to all issues involving corporate misconduct and abuse and do an excellent job in this area of the law. Michelle Fulmer, the Section Administrator, can be reached at 800-898-2034 or by email at Michelle.Fulmer@beasleyallen.com.

We're here to help!

We live by our creed of “helping those who need it most” and have helped thousands of clients get the justice they desperately needed and deserved. If you feel you have a case or just have questions please contact us for a free consultation. There is no risk and no fees unless we win for you.

Fields marked * may be required for submission.

Wonderful to work with

Beasley Allen did a great job with my case. They were wonderful to work with. They were available by phone when I needed them, treated me with the utmost respect and worked hard on my behalf. If a need arises in the future, I would definitely call on them again.

—Geraldine