The Jere Beasley Report April 2023

CAPITOL OBSERVATIONS

The Lack Of Regulation Can Be A Killer

Investigations of the Feb. 3 Norfolk Southern freight train derailment in East Palestine, Ohio, will take several months to complete, but already some answers have come to light. The causes are troublesome. They pertain to weaknesses in trains hauling tons of toxic chemicals through our communities. But these causes point to fundamental problems that allowed the derailment to happen – problems that paved the way for countless such “accidents” to occur.

Calling the East Palestine derailment, an accident suggests that forces beyond anyone’s control were at play. But when we consider how Norfolk Southern and other railroad giants have lobbied relentlessly for government deregulation and how politicians, whether ideologically aligned with corporate interests or under the influence of corporate donations, or both, accommodate them, we can see that this derailment and the thousands of others like it are not mere accidents.

Railroad workers have sounded the alarm for years over safety lapses within the industry, but their voices are effectively muted by the railroad lobby. For the past five years, railroad companies have drastically reduced their workforce while operating longer trains and heavier loads. The Norfolk Southern train that derailed was a two-mile-long chain of 150 cars operated by two employees and a trainee. The operators had no information about what chemicals their train was hauling, weakening the efforts of first responders.

Federal investigators found that the crew responded to a warning from a detector placed along the tracks about an overheated wheel bearing. Still, they couldn’t stop the train before more than three dozen cars derailed and crashed. Several cars in the derailment pile erupted into chemical-fueled flames that burned for days. Responders deliberately set fire to several other cars in an attempt to control the blaze. Meanwhile, half the town of about 5,000 people had to flee the community as plumes of toxic smoke carrying benzene, vinyl chloride, and a variety of other chemicals commonly used in industrial applications billowed from the flaming railroad cars.

Norfolk Southern’s East Palestine derailment wasn’t an isolated incident. The railroad’s trains were involved in 119 derailments last year alone. Industrywide, there were more than 1,000 derailments in 2022. On Mach 9, as Norfolk Southern CEO Alan Shaw was testifying before Congress about the Ohio derailment, another Norfolk Southern train derailed in northeastern Alabama. As of writing, other train derailments since Feb. 3 have occurred in Arizona, Florida, Michigan, Nebraska, Oklahoma, West Virginia, and two others in Ohio, including one that resulted in the death of a conductor.

The National Transportation Safety Board (NTSB) investigated the Feb. 3 derailment and now has opened a rare special investigation of Norfolk Southern, looking at its safety practices and internal culture. The U.S. Department of Transportation’s (DOT’s) Federal Railroad Administration (FRA) is also conducting its own investigation, aiming to assess Norfolk Southern’s administrative policies in addition to procedures related to rail inspections, maintenance, worker training, communications, and other issues.

Although these investigations are a positive step toward documenting the underlying problems with company culture and lack of oversight and regulation, it should not have taken a travesty of this magnitude to prompt this response.

A company’s poor safety culture is one serious problem. Combined with senseless deregulation and repealing essential safety initiatives, it can become exceptionally hazardous to railroad workers, the public, and the environment. In 2007, Norfolk Southern promoted a safer electronic braking system that could decrease train stopping distances by 60%, thereby reducing the number of train collisions. But when the Obama administration required this new technology on trains hauling oil and other hazardous materials, the company lobbied hard against it.

Instead of investing in rail safety improvements, Norfolk Southern and the larger railroad lobby spent millions of dollars fighting every common-sense safety regulation proposed by the DOT. Then, amid Donald Trump’s sweeping regulatory rollbacks, they successfully eliminated many improvements, including the new braking requirement, and weakened several others. It was only a matter of time before a derailment as potentially devastating as the one in East Palestine occurred.

Railroad industry deregulation is nothing new. The industry has worked for decades fighting any of the federal government’s attempts to execute oversight to enhance safety, including manipulating the two key federal laws currently regulating railroad safety – the Federal Railroad Safety Act (FRSA) and the Interstate Commerce Commission Termination Act (ICCTA). These industry efforts have protected railroads to the detriment of people harmed in some way by a railroad company’s tortious actions.

Most Americans believe that injured persons always have access to the courts when another person or corporation causes their injuries. A tort claim allows a person to seek compensation from wrongdoers who harmed that person. Often, plaintiffs file tort claims under state law. However, because of the railroad industry’s influence at the federal level, the industry successfully lobbied for federal preemption in both the FRSA and ICCTA.

Federal preemption is the legal doctrine based on the U.S. Constitution’s Supremacy Clause. There are different types of preemption, but the fundamental concept is that federal law will be applied when state or local laws conflict. The FRSA, enacted in 1970, expressly provides jurisdiction over the rail industry’s safety to the FRA and preempts state or local laws that interfere with or impact railroad safety.

The ICCTA passed in 1995, effectively ended the Interstate Commerce Commission (ICC), which was charged with many things, including regulating surface transportation. The ICCTA created the Safety Transportation Board (STB), giving it exclusive jurisdiction over surface transportation issues and providing express preemption over any laws that attempt to regulate rail transportation.

The FRSA and ICCTA are designed to work together in regulating the safety (FRSA) and economic (ICCTA) matters of rail transportation. However, the federal preemption established in both laws has placed plaintiffs in legal limbo. Congress addressed the FRSA’s preemption limitations with amendments in 2007. It has not addressed similar issues posed by the ICCTA. Further, courts have interpreted the ICCTA’s preemption broadly at times, striking down any state tort laws that can remotely be linked to or impact a railroad company’s economic activities.

Sadly, many of those affected by the Feb. 3 Norfolk Southern train derailment find themselves in this legal limbo.

In his testimony before Congress, Alan H. Shaw, the Norfolk Southern CEO, told lawmakers that he is “deeply sorry” for the impact of his company’s train derailment on those in East Palestine and the surrounding area, promising “to make this right.” He said, “We will clean the site safely, thoroughly, and with urgency.” Yet, immediately following the Feb. 3 derailment, Norfolk Southern planned to bury some contaminates to continue using the existing train tracks in the area. Residents publicly protested the plan, forcing the railroad company to agree to take up the tracks and dig up the contaminated soil underneath them.

It will be interesting to see if Norfolk Southern really “makes this right” or if it chooses to hide behind federal preemption and other defenses to limit or even evade the full extent of its responsibility. Regardless, the systemic problems that led to the Feb. 3 travesty have surfaced. It is time for law and policymakers to take action and demand more than empty promises from yet another CEO whose company’s wrongdoing will likely have tragic consequences for years to come.

Sources: Associated Press, USA Today, WBUR, Law360, Claims Journal, Law.com, New Republic, Freight Waves, Jacobin.com, WESA and Daily Kos

THE TALC LITIGATION

Talc Litigation And LTL Bankruptcy Update

Recently, Johnson & Johnson filed a request for rehearing by the full Third Circuit since the prior arguments were only heard by a panel of three judges. On March 22, the Third Circuit unanimously denied this request. This decision by the Third Circuit is another victory for thousands of victims of Johnson & Johnson’s (J&J’s) products. It reiterates that J&J will not be allowed to avoid liability by abusing the bankruptcy system.

J&J has indicated that it intends to appeal this decision to the U.S. Supreme Court and has asked for a continuing stay of trials. A decision on that request is expected very soon. Talc claimants oppose this stay request and hope the litigation will begin again in the next few weeks. Once the preliminary injunction has been lifted, Beasley Allen is prepared to continue the ongoing battle against J&J and advocate for our clients whose cases have been on hold over the past year and a half.

The Talc Claimants Committee vehemently argued against the request of J&J subsidiary LTL Management, LLC., that the full Third Circuit review en banc the three-judge panel decision to throw out its Chapter 11 Bankruptcy case. The committee argued that the panel’s decision earlier this year correctly found that LTLs’ bankruptcy was not filed in good faith as it was not experiencing any financial distress and was, in fact, backed by the vast financial backing of the J&J parent company.

Claimants argued that LTL filed bankruptcy in October 2021 to avoid liability or otherwise delay the legal process in tens of thousands of ovarian cancer cases related to its talcum powder cosmetic products. This was yet another maneuver in a series of legal moves J&J undertook to manipulate the process and delay or hinder plaintiffs’ efforts to take their cases to trial or to resolve the litigation. While awaiting a ruling on the improperly and fraudulently filed bankruptcy, plaintiffs’ cases and the needed movement in the litigation stayed, leading to many claimants passing away or suffering further harm while awaiting their chance at justice.

LTL argued that the panel’s focus should have been specifically looking at just its own finances rather than looking at the parent company or the corporate resources available. However, it could not cite any authority that bolstered this position. LTL also highlighted the financial backing of J&J while arguing that the bankruptcy process was the best avenue to resolve the claims.

J&J created LTL in a so-called “Texas Two-Step” legal maneuver by which J&J went through a complicated series of steps to ultimately assign all of the assets of Johnson & Johnson Consumer Companies Inc., the subsidiary responsible for talcum powder products, to a new entity with a similar name, and in the meantime spun off all of the talcum powder products liabilities to LTL. After the transfer was complete, LTL filed for bankruptcy in North Carolina with billions in potential litigation liabilities facing it and a relatively modest amount of assets in the company itself, but with the full backing of the parent corporation to pay any future liabilities incurred. With this backing, the Third Circuit correctly ruled that LTL was not actually in financial distress and reversed the previous rulings of Bankruptcy Judge Michael Kaplan, which had denied the claimants’ original motion to dismiss.

Beasley Allen Talc Litigation Team

Beasley Allen lawyers Ted Meadows and Leigh O’Dell head the Beasley Allen Talc Ovarian Cancer Litigation Team. Andy Birchfield, who heads our Mass Torts Section, has been directly involved in all phases of the talc litigation. The team handles claims of ovarian cancer linked to talcum powder and mesothelioma cases. Several key team members who have been focused on Johnson & Johnson’s abuse of the bankruptcy system can now be busy working on upcoming trials. The following Beasley Allen lawyers are members of the Talc Litigation Team:

Leigh O’Dell, Ted Meadows, Kelli Alfreds, Ryan Beattie, Beau Darley, David Dearing, Liz Achtemeier, Jennifer Emmel, Lauren James, James Lampkin, Caty O’Quinn,  Cristina Rodriguez, Brittany Scott, Charlie Stern, Will Sutton and Matt Teague.

While Charlie Stern and Will Sutton are on the team, they exclusively handle mesothelioma claims. Charlie and Will are looking at industrial, occupational, and secondary asbestos exposure resulting in lung cancer or mesothelioma and claims of asbestos-related talc products linked to mesothelioma.

THE ASBESTOS LITIGATION

Proving Liability In A Mesothelioma Trial

In every single toxic tort trial, there are a few basic requirements that the plaintiffs have the burden of proving.  One is causation. This usually involves scientific and medical experts explaining why an exposure to a certain substance caused a plaintiff’s injuries. But even if a plaintiff proves causation, we are also responsible for proving that the defendant or defendants are responsible for the alleged injury. 

In mesothelioma cases, proving liability can be a tricky thing. Unlike most torts, the bad acts by the defendants took place decades ago. Most mesothelioma cases involve asbestos exposure in the 1960s, 70s or 80s. So how do Beasley Allen mesothelioma lawyers prove that a defendant knew about the hazards of their product and/or should have known? 

One way that we do this is with a “state of the art” expert. We have written about this kind of expert before. They can help explain to the jury what was generally known and knowable in the medical, scientific, and corporate communities relative to asbestos over the years. But that only gets us so far. We also need to prove that the specific defendant at trial knew or should have known that their product was dangerous. To do this, we utilize the corporate representative deposition. In this deposition, the rules of civil procedure require the defendant to designate an individual to speak on behalf of the company on noticed topics.  In mesothelioma cases, these topics often deal with liability and when/how the defendant learned about the hazards of asbestos and its products.

In a recent corporate representative deposition, Beasley Allen lawyers collected documents from the early 1900s involving a particular defendant and its knowledge of the hazards of dust, generally, and asbestos in industrial settings. Our lawyer took the witness on a trip through time, beginning in the early 1900s and ending in the 1980s, showing how involved this defendant was in the asbestos discussion over the years and precisely what it knew and when. 

This sort of thing takes an incredible amount of time and planning, but it was worth it because it painted a clear and obvious picture of just how much the company knew about asbestos and when. By utilizing documents from the era, the defendant could not explain away any question of liability. This approach resulted in a fantastic result for our client. Our mesothelioma lawyers utilize this approach in all our mesothelioma cases. 

If you have any questions or need help on a case, contact Charlie Stern, the lead lawyer for our Asbestos Litigation Team, at 800-898-2034 or by using the form at the bottom of this page.

Jury Awards $29 Million In Talc Suit Against Supplier

A woman suing talc supplier Whittaker Clark & Daniels will receive over $29 million in damages after developing cancer linked to her use of talc-containing cosmetics.

Doctors diagnosed 35-year-old Sarah Plant with fatal mesothelioma after she was exposed to asbestos. It took a Richland County, South Carolina, jury only four hours to find that Whittaker negligently caused Ms. Plant’s cancer by selling its asbestos-tainted products. Ms. Plant’s suit also accused other companies of negligently selling asbestos-containing cosmetics.

In addition to Whittaker, Ms. Plant sued three other defendants, including talc manufacturer IMI Fabi, cosmetic pigment and filler company Color Techniques and makeup brand Mary Kay. The jury found that IMI Fabi committed no wrongdoing. Color Techniques and Mary Kay settled with Ms. Plant as the jury deliberated.

The jury found Whittaker strictly liable, awarding substantial damages to Ms. Plant. It also found that the company breached an implied warranty. Ms. Plant will receive approximately $4.1 million for past and future medical costs and $20 million for past and future noneconomic damages, including pain and suffering. Her husband will also receive $5 million for the loss of consortium.

Ms. Plant’s lawyer, Jessica Dean, indicated her client is happy with the results. Dean said:

I think she’s overjoyed; her reaction was truly gratitude for the jury and the time they gave. But she is also genuinely concerned that IMI Fabi will still be selling talc products, and she wants to know what it will take to stop them.

Whittaker argued during trial that there was not enough evidence to support Ms. Plant’s use of products with Whittaker-supplied talc. Further, the company said there was insufficient evidence showing any talc supplied by Whittaker contained asbestos.

Whittaker had also filed a motion for a directed verdict, stating that Ms. Plant could not link any cosmetics she used with talc supplied by the company.

The jury disagreed, rendering its verdict for Ms. Plant.

Jessica M. Dean and Rachel Gross of Dean Omar Branham Shirley LLP and Theile McVey of Kassel McVey represent Ms. Plant.

The case is Sarah J. Plant et al. v. Whittaker Clark & Daniels et al., case number 2022-CP-40-1265, in the Fifth Judicial District Court of Common Pleas, Richland County, South Carolina.

Source: Law360

Widow Awarded $20 Million For Husband’s Mesothelioma Death

A Connecticut jury returned a record verdict of $20 million to a woman whose husband died of mesothelioma in 2020 after years of exposure to a window glazing compound that contained asbestos.

The award is limited to compensatory damages against manufacturers DAP Inc. and Vanderbilt Minerals LLC. According to the lawsuit, DAP Inc. manufactured the DAP 33 window glaze that John Peckham was first exposed to in the early 1960s as a worker at the Stillwater Worsted Mill in East Woodstock, Connecticut. Vanderbilt Minerals acquired International Talc Co., which supplied the asbestos-contaminated ingredients. Proceedings to determine punitive damages are pending.

Mr. Peckham filed the lawsuit in July 2019 after he was diagnosed with mesothelioma, an incurable form of cancer caused by asbestos exposure. He died in November 2020, just a year and a half after his diagnosis. Mr. Peckham’s wife became the plaintiff as executor of her husband’s estate following his death.

According to the lawsuit, Mr. Peckham’s exposure to the DAP 33 glazing compound spanned decades. He scraped dusty old glazing from hundreds of window frames in the 1960s and used the same glazing for home repairs in the 1970s and 1980s.

The complaint alleges the manufacturers knew the hazards of asbestos as early as the 1920s and 1930s but continued to use it in their products without publicly acknowledging the risks or informing the public. The jury found that the window glazing products were defective and dangerous and that the companies failed to warn the public about the products’ health risks. The jurors held each of the defendants 50% liable.

The Peckham estate is represented by Patrick Wigle, Sam Iola and Camille Hunt of Waters Kraus & Paul and Chris Meisenkothen of Early Lucarelli Sweeney & Meisenkothen. The case is Peckham v. DAP Inc. et al., case number CV-19-6088003, in the Fairfield Judicial Superior Court in Bridgeport, Connecticut.

Sources: Law360, Insurance Journal and CT Post

Asbestos Suit $17 Million Award Upheld By Appeals Court

A three-judge appellate court panel affirmed a nearly $17 million jury verdict for Kevan A. Holdsworth’s estate against Scapa Waycross Inc. for its asbestos-containing products supplied to the papermill where Mr. Holdsworth worked for more than four decades in Camas, Washington. Mr. Holdsworth’s widow, Sherrie D. Holdsworth, represented his estate in the legal proceedings following his death.

The Holdsworths filed lawsuits against Scapa Waycross and several other companies that manufacture products containing asbestos. When her husband died in 2019, Mrs. Holdsworth continued the case. The trial jury awarded Mrs. Holdsworth $16.6 million. Scapa requested a new trial and for judgment as a matter of law, but the appellate panel rejected both requests and affirmed the jury verdict in its 28-page opinion issued last month.

The panel determined there was more than sufficient evidence for the jury to decide on the adequacy of proof required. The panel said:

Scapa boldly asserts that this evidence called for speculation and, as a result, the claims should never have been allowed to go to a jury. This position crumbles when considered under the proper legal standard; we need only conclude that it was either substantial evidence to meet the exposure element of Holdsworth’s claims, or that reasonable inferences could be drawn therefrom for a jury to determine that the element had been satisfied.

The opinion also explained the standard used to determine asbestos exposure. The factors that trial courts must consider include the proximity of exposure, size of the work area, duration of exposure and the kinds of asbestos products used. 

According to the court record, Mr. Holdsworth was part of a crew assigned to blow dust off every part, inside and out, of the paper machines with hoses. He was in this position from 1969 to 1976. Mr. Holdsworth’s crew used the hoses to direct air through dryer felts manufactured by Scapa that moved wet sheets of paper through the drying process. During the seven years Mr. Holdsworth was part of the crew, 141 of the 238 dryer felts he would “blow down” contained asbestos. His team was assigned 11 machines, and crew members would “blow down” the felts at least once every three weeks. The process blew up so much debris it left Mr. Holdsworth completely covered.

Mr. Holdsworth also replaced dryer felts that were used up, requiring him to cut apart the used dryer felts.

Mr. Holdsworth left the paper mill in 2001 and was diagnosed with mesothelioma 17 years later, which proved fatal the year after his diagnosis.

Mrs. Holdsworth is represented by Lucas William Hannum Garrett and Thomas James Breen of Schroeter Goldmark & Bender, and Catherine Wright Smith and Jonathan Collins of Smith Goodfriend PS. 

The case is Sherrie D. Holdsworth v. Scapa Waycross Inc., case number 83564-5, in the Court of Appeals Division I, State of Washington. 

Source: Law360

The Beasley Allen Asbestos Litigation Team

There has been no slowdown in the asbestos litigation. Case filings continue to spread nationwide. The Beasley Allen Asbestos Litigation Team is headed by Charlie Stern in our Dallas, Texas, office. Charlie has years of experience in asbestos litigation and was a perfect fit to lead the team. Other team members are Will Sutton and Cindy Lopez. Rhon Jones, who heads our Toxic Torts Section, works with the team. If you need assistance with cases involving asbestos products, contact one of the team members by phone at 800-898-2034 or by using the form at the bottom of this page.

THE CAMP LEJEUNE LITIGATION

Camp Lejeune Litigation Update

Litigation has begun in the Camp Lejeune matter. At the time of writing this article, over 250 cases have been filed in the Eastern District of North Carolina. As the litigation picks up steam, so does another key issue: a potential cap for attorney fees. Since the bill was passed to start this legislation, attorney fees have been a hotly contested issue. Senator Dan Sullivan (R-Alaska) is leading the charge in favor of a fee cap.

In a recent hearing before the U.S. House and Senate Veterans Affairs committees, various veteran organizations gathered to urge the committees to impose some form of a cap on fees. In fact, the American Legion identified imposing a fee cap as one of its top tasks. Last December, Senator Sullivan proposed a cap of 2% for resolution at the administrative level and a cap of 10% for resolution if the case proceeds to trial. However, the senator faced pushback on these values. In light of this, Senator Sullivan’s adjusted bill would place a 12% cap on filing a claim and a 17% cap for litigating a case.

The main opposition from democrats has not been whether a fee cap is appropriate, but rather what amount is appropriate for a fee cap. By lowering the fee cap to Senator Sullivan’s suggested rates, the opposition argues that these low fee caps will discourage any qualified attorney from taking on these cases. Instead, the veterans would be left with unqualified representation to their detriment. Democratic representatives Mark Takano (California) and Jerry Nadler (New York) introduced their own version of a Camp Lejeune attorney fees bill. Specifically, their version would impose a 20% cap on fees for resolution at the administrative level and a 33.3% cap on fees for resolution at trial.

Beasley Allen has an entire team of lawyers and staff dedicated to investigating, filing, and establishing causation for these Camp Lejeune claims.  The team is co-led by Julia Merritt and Leslie LaMacchia, lawyers in our firm’s Toxic Torts Section, which is led by Rhon Jones. The timetable for filing claims for the exposure to toxic water at Camp Lejeune is limited to two years from the date The Camp Lejeune Justice Act was signed into law on Aug. 10, 2022.

Beasley Allen Camp Lejeune Litigation Team

If you need help on a potential claim or more information on our Camp Lejeune litigation, contact one of the Camp Lejeune Litigation Team lawyers at 800-898-2034 or by email. The Camp Lejeune Litigation Team is comprised of the following:

Julia Merritt and Leslie LaMacchia, who co-lead the team. Other members are Matt Pettit, Trisha Green, Will Sutton, Elizabeth Weyerman. Ken Wilson, Ryan Kral and Tucker Osborne. Rhon Jones (Section Head) works closely with the team. Additional lawyers are being added to the team as needed.

SOCIAL MEDIA LITIGATION

Meta Litigation Update

The Social Media Addiction/Personal Injury Product Liability multidistrict litigation (MDL) – which includes defendants Facebook, Instagram, Snapchat, TikTok, and YouTube – continues to progress. The plaintiff leadership team, including Beasley Allen lawyer Joseph VanZandt, filed its master complaint on Feb. 14, 2023, against all defendants, beginning the first phase of this litigation. The filing complied with Judge Yvonne Gonzalez-Rogers’ instructions. Judge Gonzalez-Rogers is overseeing the MDL consolidated in the U.S. District Court for the Northern District of California. The master complaint sets forth potential claims that individual plaintiffs may assert against various defendants.

Defendants will file their motion to dismiss certain claims on or before April 17, 2023. The plaintiff leadership team’s opposition to the motions will be filed on or before June 1, 2023. Litigation will continue to the discovery phase, provided plaintiffs overcome the defendants’ motion to dismiss the initial claims. Further, additional families will eventually be able to join the lawsuit, adopting, in whole or in part, the allegations contained in the master complaint.

Likewise, personal injury litigation against defendants in California state court is advancing. On Dec. 16, 2022, Judge David Cunningham of the Superior Court of California, Los Angeles Civil Division, ordered those cases against defendants be consolidated in a California state court action like the federal MDL. Further, on Jan. 6, 2023, the Judicial Council Coordination Proceedings (JCCP) ordered consolidated proceedings against defendants to be before Judge Carolyn Kuhl in the Los Angeles Superior Court. On Feb. 28, 2023, Judge Kuhl appointed the firm’s Joseph VanZandt as co-lead counsel for this JCCP, a most positive development for the overall prospects of this litigation.

Beasley Allen continues to litigate against Meta and other social media companies in the Social Media Addiction/Personal Injury Product Liability MDL. Our lawyers are honored to represent the victims of the tech giants’ harmful product designs.

If you have a potential claim or need more information on our Meta litigation, contact one of the lawyers on the Meta Litigation Team at 800-898-2034 or by email. Members of the team are:

Joseph VanZandt, who heads the team, Jennifer Emmel, Suzanne Clark, Clinton Richardson, Sydney Everett, Davis Vaughn and Seth Harding. Andy Birchfield, who heads our Mass Torts Section, also works with the team.

The class action aspect of the Meta Litigation is handled by lawyers in our Consumer Fraud & Commercial Litigation Section. If you need help in that area, contact Michelle Fulmer, Section Director, at 800-898-2034 or by email using the form at the bottom of this page, and she will have a lawyer contact you.

Sanctions For Google Over Abuse Of Discovery Rules

U.S. District Judge James Donato sanctioned Google over the company’s default policy to delete internal chats after 24 hours as an abuse of discovery rules in a multidistrict litigation. Judge Donato found that the company failed to preserve evidence in the ongoing MDL with state attorneys general and private plaintiffs over the tech giant’s control of the app-distribution market for the Android phone.

In his March 28 order, judge Donato ruled that Google must cover legal costs to plaintiffs in pursuing the sanctions motion. While he stopped short of giving plaintiffs a default win on the suit itself at this point, Judge Donato reserved ruling on additional, more substantial punishment for a later time in the case. He added:

Google did not take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation. The court concludes that Google intended to subvert the discovery process, and that Chat evidence was ‘lost with the intent to prevent its use in litigation’ and ‘with the intent to deprive another party of the information’s use in the litigation.’

This was an important development, not only in the case, but it puts parties to complex litigation on notice that discovery rules must be followed and that deception and cheating on the rules don’t pay! All parties must follow the rules, and the guilty party must be punished when intentional violations are involved.

Source: Law360

Facebook’s $725 Million Data Harvesting Settlement Is Delayed

A California federal judge indicated he would approve Facebook’s $725 million settlement to resolve claims in a multidistrict litigation (MDL) over the Cambridge Analytica scandal. But he put those plans on hold to address concerns the New Mexico Attorney General’s office raised in the eleventh hour.

New Mexico’s counsel asked U.S. District Judge Vince Chhabria whether the settlement would restrict government actions, like his client’s claims against Facebook regarding restitution. New Mexico had only recently sought to be part of the MDL.

New Mexico’s counsel asked Facebook that same question six weeks prior but didn’t get a response until two days ago. The social media giant said it “anticipates taking the position that the release in the proposed MDL settlement … operates to release [New Mexico’s] claim.” However, if the state seeks civil penalties or other relief, “Facebook reserves all rights.” New Mexico is concerned that Facebook may later assert that the settlement also released the other claims against the social media giant.

Judge Chhabria criticized New Mexico’s counsel for not speaking up sooner if it had concerns for its client. He also suggested changing the settlement notice to inform the class of 250 million Facebook users about the New Mexico Attorney General’s case.

Attorneys for both sides raised concerns about the impact such an unprecedented move would have on other class actions against tech companies. Those settlements are usually contingent upon a minimum number of class members opting out.

Judge Chhabria said he would consider the issue carefully before entering an order to approve the settlement. Still, he didn’t expect the “small question” to hold up the “reasonable settlement” for long.

The Facebook users are represented by Derek W. Loeser, Cari C. Laufenberg, David Ko, Adele A. Daniel, Benjamin Gould, Emma M. Wright, Christopher Springer, Eric Fierro, Daniel Mensher, Michael Woerner and Matthew Gerend of Keller Rohrback LLP and Lesley E. Weaver, Anne K. Davis, Matthew S. Melamed, Angelica M. Ornelas and Joshua D. Samra of Bleichmar Fonti & Auld LLP.

New Mexico is represented by Raul Torrez, P. Cholla Khoury, Jacqueline N. Ortiz and Judy Paquin of the New Mexico Office of the Attorney General, Adam J. Levitt, Amy E. Keller and Corban Rhodes of DiCello Levitt LLC and David M. Berger of Gibbs Law Group LLP.

The case is In re: Facebook Inc. Consumer Privacy User Profile Litigation, case number 3:18-md-02843, in the U.S. District Court for the Northern District of California.

Sources: Law360 and Law.com

Who Qualifies For Refunds From The $245 Million Fortnite Settlement

The Federal Trade Commission (FTC) ordered Epic Games, the maker of the popular video game Fortnite, to pay consumers $245 million over allegations that the company deceptively lured players into making unwanted purchases. Children made some of those purchases without their parent’s knowledge. The FTC said in a statement:

Fortnite’s counterintuitive, inconsistent, and confusing button configuration led players to incur unwanted charges based on the press of a single button. The company also made it easy for children to make purchases while playing Fortnite without requiring any parental consent.

The FTC said refunds under the settlement are available to the following:

• Parents whose children made an unauthorized credit card purchase in the Epic Games Store between January 2017 and November 2018.
• Fortnite players charged in-game currency (V-Bucks) for unwanted in-game items (such as cosmetics, llamas, or battle passes) between January 2017 and September 2022.
• Fortnite players whose accounts were locked between January 2017 and September 2022 after disputing unauthorized charges with their credit card companies.
• The FTC says there is nothing to do at present to get a refund. More refund information can be found online by vising  https://www.ftc.gov/enforcement/refunds/fortnite-refunds.

Source: Federal Trade Commission

AN UPDATE ON MOTOR VEHICLE LITIGATION

Electric Transportation Popularity Creates High Potential For Tire Development

One of the driving forces behind innovation in vehicle technology is an across-the-board demand among consumers for greater vehicle safety. The motor vehicle industry has continued to invest time, effort, and money into developing new vehicle technologies to achieve this goal. These technologies will have to cope with and anticipate the continued rise of electric transportation methods and the safety challenges that these may bring.

Increased usage of electric vehicles means that new tire technologies will focus on load-carrying capacity, improvements in rolling resistance, and attempts to reduce the overall noise emanating inside the vehicle cabin. Many manufacturers also try to make their tires more environmentally friendly without compromising tire service life.

Because electric vehicles often sport higher torque, tires on these vehicles have the potential to wear out at accelerated rates. Manufacturers are focusing on combating this trend as more and more people use this form of transportation. Many manufacturers think these goals can be achieved by increasing electronic technology inside the tires themselves. This method will allow manufacturers to learn more about tire wear and efficiency and update and develop new technologies accordingly.

Ultimately, the fact that electric vehicles and conventional vehicles often differ in terms of weight and torque level means that developments in tire technology must happen with these differences in mind.

Beasley Allen lawyers have successfully handled numerous cases involving fatal and non-fatal accidents caused by tire failures. If you need more information or help on a case, contact Ben Baker, a lawyer in our Personal Injury & Products Liability Section, at 800-898-2034 or by using the form at the bottom of this page.  

Sources: Modern Tire Dealer and Nationwide  

NHTSA Investigating Tesla Detached Steering Wheel Complaints

Two reports have prompted National Highway Traffic Safety Administration (NHTSA) officials to examine the safety of Tesla steering wheels after drivers stated the wheels detached as they were driving their vehicles.

In both cases, NHTSA’s Office of Defects Investigation looked into the incidents, finding no bolt securing the wheel to the steering column. Friction kept the 2023 Model Y Teslas’ steering wheels in place for a short time, but eventually, the drivers turned them with enough strength to loosen them.

The wheels came loose while the drivers were operating their vehicles at low speeds, according to the NHTSA notice.

NHTSA is taking a closer look to determine how often steering wheels are detaching, how many vehicles the problem affects and how the manufacturing process works.

One owner says his steering wheel detached on Jan. 29, five days after he purchased the vehicle. When the incident occurred, he was driving his family along Route 1 in Woodbridge, New Jersey. He says that he was able to pull into the median.

The owner posted about the incident on Twitter, tagging Elon Musk. Although Musk failed to respond, Tesla’s customer service did. The owner’s posts have now been seen by hundreds of thousands.

Tesla agreed to purchase back the owner’s car, although the company stated the vehicle contained no defect. In addition, Tesla provided the owner with a loaner vehicle until it replaced the old Tesla Y with a new one on Feb. 23.

In February, Tesla recalled almost 363,000 U.S. vehicles with its Full Self-Driving (FSD) Beta software installed. The company’s software update will affect how the vehicles operate in intersections and with yellow lights.

NHTSA said Tesla voluntarily recalled the vehicles, responding to concerns that the FSD Beta software causes them to “exceed speed limits or travel through intersections in an unlawful or unpredictable manner.” Tesla plans to issue a software update free of charge that will improve how the FSD Beta navigates certain driving situations.

The recall covers certain 2016-2023 Model S, X, 3, and Y vehicles with the FSD Beta software installed and those same models awaiting software installation.

NHTSA is investigating crash reports involving Teslas with the FSD Beta system in operation. The agency’s Office of Defects Investigation is looking into accidents involving Tesla’s autopilot system after multiple crashes with emergency and first-responder vehicles occurred.

If you have any questions or need help on a case, contact Sloan Downes, Section Director of the Personal Injury & Products Liability Section, at 800-898-2034 or by using the form at the bottom of this page. She will have a lawyer in the section respond.

Sources: Law360 and National Highway Traffic Safety Administration

Dangers Of Rolling Vehicles Due To Defective Auto Products

We are all taught to be careful around moving vehicles from a young age. A much less-known but equally dangerous hazard is the phenomenon of parked vehicles that slip out of gear and roll forward or backward unexpectedly.

Rolling vehicles may strike buildings or people, posing a significant threat to those around the vehicle during unexpected movements. Many potential causes exist for this dangerous rolling of parked vehicles, including faulty transmissions and defective parts within gear shifters. These defects allow vehicles to slip into gear spontaneously or at the slightest bump. For example, young children may move around inside the vehicle’s cabin and bump into the shifter, causing a vehicle to shift gears.

Auto manufacturers should, but often do not, account for the realistic possibility of shifters being bumped during regular vehicle use. In even less predictable circumstances, vehicles suddenly roll forward or backward while empty when left parked.

Beasley Allen lawyer Mike Andrews is currently investigating a case where an individual was pinned against the wall of a building by their vehicle. The vehicle was parked and empty, yet rolled forward unexpectedly and struck its owner.

Beasley Allen lawyers continue to fight to hold automotive manufacturers accountable to ensure safety for the public.  If you or a loved one were seriously injured in an unexpected car rollaway, or if you have any questions about automotive defects like this one, contact Sloan Downes, Section Director of our Personal Injury & Products Liability Section, at 800-898-2034 or by using the form at the bottom of this page. She will have a lawyer in the Section who handles product liability cases involving motor vehicles contact you.

Nissan Recalls Over 809,000 SUVs Due To Engine Shut-Off Problem

Nissan is recalling over 809,000 vehicles due to an engine shut-off problem connected to the ignition key. The recall covers certain U.S. 2014-2020 Rogues and 2017-2022 Rogue Sports models. The Canadian Nissan Qashqai is also included in the recall. Only S-trim level SUVs are affected, as other trim levels and newer Rogues use Intelligent Keys.

Sometimes referred to as a jackknife or switchblade key, the folding design of the SUV’s key enables drivers to turn off the ignition accidentally. This can occur while the vehicle is in motion, affecting engine power, power steering, power brakes and airbag deployment.

According to the National Highway Traffic Safety Administration (NHTSA), the engine shutdown issue increases the crash risk. The recall report indicates that a pivot within the key may weaken over time, eventually causing the key fob to unlock and turn downwards. This makes it easy for a driver’s hand to touch the key and turn the vehicle off.

Nissan is expected to mail letters notifying affected vehicle owners of the recall on March 29, advising them of the safety risks involved. The company will contact owners a second time when a remedy is available. In the meantime, Nissan will instruct dealers and renters on placing a fastener into the key to prevent it from folding. Once remedy parts become available, they’ll be trained on installing a spacer into the key fobs to keep them from closing.

Until owners’ fobs contain a spacer, Nissan advises against attaching anything to the key fob. Owners should also operate their vehicles with keys in the unfolded positions only.

Sources: Consumer Reports and National Highway Traffic Safety Administration

500,000 Honda Vehicles Recalled Over Seat Belt Defect

U.S. regulators say a seat belt defect stops the buckle from latching in certain Honda vehicles. The defect has promoted the recall of 500,000 Honda vehicles in the U.S. and Canada. The regulators were citing court documents the automaker filed last month. The defect is within the surface coating on the channel for the buckle. It can deteriorate over time, causing the release button to shrink against the channel at lower temperatures. This increases friction and prevents the buckle from latching. These vehicles are in the recall: 

• CR-V (2017-2020)
• Accord (2018-2019)
• Odyssey (2018-2020)
• Insight (2019)
• Acura RDX (2019-2020)

Thus far, there have been no reports of injuries caused by the problem. Letters will be distributed to owners of the affected vehicles on April 17. If needed, dealers will replace the front seat belt buckle release buttons or the buckle assemblies.

Source: AL.com

TRUCKING LITIGATION

Disputed Liability Trucking Cases

Our lawyers frequently see disputed liability trucking cases where the basis of denied liability would surprise you. We have learned that defenses present opportunities to strengthen the plaintiff’s claim.

Recently a tractor-trailer driver attested in written discovery and deposition that he rear-ended a vehicle in front of him in the roadway and that our client was at fault. The basis for this denial was that traffic was traveling at a stop-and-go pace, and our client did not drive forward at a speed that the defendant driver anticipated the plaintiff to move. The defendant driver testified that the commercial driver’s license (CDL) manual he used to obtain his CDL discusses at length “the need for space ahead.” Specifying that the “vehicle that trucks most often run into is the one in front of them. The most frequent cause is following too closely.”

The defendant driver knew and agreed that was the case. He understands that his vehicle cannot stop as quickly, so he must ensure that the space ahead is enough for him to stop his truck. The defendant stated that he could see the plaintiff through her tinted back windshield using her phone and that she was distracted. Interestingly, he followed this “distracted driver” for two miles before the accident.

While we sharply contest the allegation that the plaintiff was distracted, the defendant driver’s testimony provided that a distracted driver is a foreseeable hazard and that he must exercise care in driving around. In fact, recognizing a “distracted driver” provided the defendant with yet another indicator that he must manage his space.

AVIATION LITIGATION

Beasley Allen Lawyer Investigates Two Deadly Aviation Incidents

Our firm is investigating two major aviation incidents. One involves a Feb. 22 fatal plane crash in Little Rock, Arkansas, that claimed the lives of all five people onboard. The five men killed worked for environmental consulting firm CTEH and were traveling to Ohio to investigate a metals plant explosion that had occurred two days earlier. Sean Sweeney was piloting the twin-engine Beech BE20 and was transporting his four colleague passengers.

The plane took off from the Bill and Hillary Clinton National Airport around noon on the day of the crash. A witness near the crash site felt heavy winds immediately after the plane lifted into the air and then heard an explosion followed by several small booms when the aircraft burst into flames.

A Little Rock meteorologist reported a line of showers with strong winds moving through the area at the time of the crash. At 12:02 p.m., the airport recorded a 46 mph wind gust.

National Transportation Safety Board (NTSB) investigators arrived at the crash site the day after the plane went down to begin gathering facts. The investigators planned to stay in Little Rock for two to three additional days to collect as much information as possible.

NTSB investigators viewed airport surveillance video from the time of the crash. They described seeing the weather front bring windy conditions, heavy rainfall and flying debris to the area at the time of the crash.

Our firm is also reviewing the circumstances surrounding the death of 34-year-old Montgomery Regional Airport worker Courtney Edwards. On Dec. 31, the young mother of three was killed after being sucked into the engine of an Embraer 170 airplane, according to an NTSB preliminary report.

The plane arrived late from Dallas, Texas, landing on the Montgomery, Alabama, tarmac on the afternoon of New Year’s Eve. Because the onboard auxiliary power unit (APU) was inoperable, the captain left the jet engines running as ground personnel worked around the aircraft. A ramp agent outside the aircraft heard a loud “bang,” and airport security video showed Ms. Edwards being pulled from her feet into the Embraer 170 engine. She was killed horrifically.

The NTSB will continue investigating these incidents, releasing final reports 12 to 24 months after the events.

Our lead aviation lawyer, Mike Andrews, will continue his independent investigations, and we will update our readers on any significant developments.

If you have questions or need help with a claim, contact Mike at 800-898-2034 or by using the form at the bottom of this page.

Sources: National Transportation Safety Board, AP News, KATV

WORKPLACE LITIGATION

OSHA Fines Defendant In Firm’s Fatal On-The-Job Injury Case $1.3 Million

Beasley Allen continues representing Regina Elsea’s family in ongoing civil litigation. After Ms. Elsea’s tragic death, Kendall Dunson, a lawyer in our Personal Injury & Product Liability Section, filed a lawsuit against AJIN, the entity responsible for her death. As we continue seeking justice for the family, the Occupational Safety and Health Administration’s investigation of this preventable incident continues to develop. The agency’s Review Commission affirmed the citations it filed against AJIN USA with $1.3 million in penalties for Ms. Elsea’s fatal on-the-job injury being assessed.

In 2016, Ms. Elsea was fatally crushed while cleaning a robotics machine at AJIN’s Cusseta, Alabama, plant. She and three coworkers were sent to clear a sensor fault and re-activate the machine after the assembly line stopped production. While attempting the clear the sensor fault, the machine restarted unexpectedly.

Korea-based AJIN USA is a parts supplier for the automakers Hyundai and Kia. Following Ms. Elsea’s death, OSHA inspectors found 51 safety violations – 48 that were willful – after investigating the incident and company.

Safety regulations established by the federal government require machinery to be de-energized when workers conduct maintenance to prevent the unplanned activation of the machinery. This is known as “lockout” or “tagout.” The OSHA investigation revealed that Ajin supervisors failed to enforce such procedures effectively. Supervisors entered the machine on at least two occasions without following safety procedures.

Tremelle Howard, U.S. Department of Labor Regional Solicitor, said that the case is a “stark reminder to all employers that the U.S. Department of Labor will exhaust all available resources and actions to hold them accountable when they fail to meet federal requirements to protect the safety and health of their employees.”

In addition to the fine levied by OSHA, the U.S. Department of Labor prosecuted AJIN for the death of Regina Elsea, resulting in AJIN pleading guilty to intentionally causing her death in federal court on Sept. 2, 2020. The guilty plea included fines and penalties against AJIN in excess of $1.5 million.

We will keep our readers updated on developments in our civil case. For questions about this or other on-the-job products liability cases, contact Kendall Dunson at 800-898-2034 or by using the form at the bottom of this page.

Sources: Occupational Safety and Health Administration, AL.com and U.S. Department of Labor

When An On-The-Job Injury Is More Than A Workers’ Compensation Claim

An employee injured on the job in Alabama is limited to benefits payable under the Alabama Workers’ Compensation Act (Comp Act). Two exceptions to this statutory limitation are (1) when the injury was caused by a third party, such as a product manufacturer who sells a dangerous or defective piece of equipment to the employer, or (2) when the willful conduct of a co-employee caused the injury. 

Section 25-5-11(c), Code of Alabama, provides that “willful conduct” of an employee can occur when the co-employee has “[a] purpose or intent or design to injure another” or where a co-employee participates in the “willful and intentional removal from a machine of a safety guard or safety device provided by the manufacturer of the machine.”  (For the full language of “willful conduct,” see § 25-5-11(c)).

Alabama courts have found that in some circumstances, the failure to maintain a safety device is equivalent to removing that device and can constitute willful conduct.  In other words, if a product manufacturer provides a safety device on a piece of machinery and a co-employee responsible for maintaining and servicing that equipment fails to ensure the safety device is in good working order, resulting in injury or death to another employee, the co-employee can then be subject to liability outside of the limitations placed by the Comp Act.

Lawyers in our firm’s Personal Injury & Products Liability Section are involved in several cases involving injuries on the job. For example, one case involves a 29-year-old man working on a clean-up crew. He was asked to assist maintenance personnel to add metal plates to machines being set up in the plant.  While the client was inside the machine, an outside contractor was programming the machine. 

The programmer was told to stop the programming while the plant’s employees added the metal plates. Instead, the programmer flipped a breaker to the machine and continued programming. Large metal rollers inside the machine turned on while the plant’s employee was inside. The employee was pulled into the wheels, resulting in the loss of one of his legs.

Beasley Allen lawyers have successfully handled numerous cases involving fatal and non-fatal accidents related to injuries on the job. If you need more information or help on a case, contact Sloan Downes, Section Director, at 800-898-2034 or by using the form at the bottom of this page. Sloan will have a lawyer in the section contact you.

Mobile Jury Awards $1.9 Million Verdict Against Dollar General

A Mobile County, Alabama, jury hit Dollar General subsidiary Dolgencorp with a $1.9 million verdict. The jury found that the retailer failed to properly maintain a delivery ramp, which caused serious injuries to a delivery driver during a 2019 incident.

According to the lawsuit, Jason Agee was moving a half-ton rolling car loaded with bottled water onto a delivery ramp at the backdoor of a Dollar General store in Mobile. The retailer had placed the metal ramp between the ground and the store entrance. As Agee moved the cart over the ramp, the ramp gave away on the deteriorated gravel, causing Agee to fall.

As a result of the fall, Agee suffered injuries, including a torn rotator cuff and a broken toe. He also required at least two surgeries and intense physical therapy.

Federal officials have repeatedly warned Doller General and Dolgencorp for violations at their stores that have put employees and others in harm’s way. Since 2017, the companies have been fined more than $15 million by the Occupational Safety and Health Administration (OSHA) for “numerous willful, repeat, and serious workplace safety violations.”

Dollar General is one of the nation’s largest discount retailers and is headquartered in Tennessee. It operates over 18,000 stores and 17 distribution centers in 47 states nationwide. The stores employ about 167,000 full- and part-time employees.

The case was tried by Brad Kittrell and Michael Fondren, lawyers with the Andy Citrin law firm.

Sources: AL.com and Occupational Safety and Health Administration

PREMISES LIABILITY LITIGATION

When It Matters – Beasley Allen And Negligent Security Claims

For over forty years, Beasley Allen has been proud to represent courageous victims in high-stakes litigation. As we look back to this past year, we are particularly proud of our results in the negligent security field in Georgia. From January 2022 to January 2023, our lawyers, led by the firm’s lead catastrophic premises lawyer Parker Miller, obtained verdicts and settlements totaling $186 million.

Georgia property owners are required by law to protect tenants, patrons and others from foreseeable harm while they are on the owner’s property. This includes ensuring adequate security measures to protect against injury from criminal activity the property owner could have anticipated. Our lawyers have seen many tragic outcomes when property owners failed to uphold this law, resulting in sexual assaults, severe injuries or the death of unsuspecting people and children. In such cases, where the property owner clearly contributed to or ignored the warning signs, the injured parties (or their families) can seek compensation and justice from negligent property owners or occupiers. 

Negligent security cases present unique challenges that are often unseen in other cases. Corporate wrongdoers often attempt to deflect the blame on a specific criminal actor, even though the criminal actor was enabled by the corporate wrongdoer’s indifference and lack of care. Insurance and discovery games are standard in any high-stakes case but are particularly commonplace in negligent security cases. These cases are expert-intensive, very expensive, and extremely time-consuming. 

The case results above spawn from different cases our lawyers have handled where multiple people lost their lives due to criminal victimization. But collectively, they involve the classic corporate wrongdoing. Despite clear warning signs that human life could be in jeopardy due to criminal victimization, the defendants in these cases chose inaction as opposed to using common sense and practical security measures. Parker had this to say about the cases:

Unfortunately, in many of these cases, it seems that the defendant property owner or occupier would almost rather the place be inconspicuously dangerous, as opposed to having a security presence with security measures, because they may believe having these measures causes their customers to think the location is unsafe. This situation is the worst-case scenario from a safety perspective because the customer has no clue how dangerous the property really is, and they become sitting ducks for criminal assailants who are more than happy to prey on them without fear of being seen or caught. Unfortunately, the needless suffering and senseless deaths could have absolutely been prevented if the locations had been properly secured.

Our lawyers’ results obtained in these cases are yet another example of how dedicated Beasley Allen is to securing justice for our clients. If you have questions about these cases or catastrophic premises liability generally, contact Parker Miller at 800-898-2034 or by using the form at the bottom of this page. 

Attractive Nuisance Liability In Georgia

It is black-letter Georgia law that a landowner owes a duty to invitees to exercise ordinary care to keep their premises safe from foreseeable harm. See O.C.G.A. § 51-3-1. Of course, this same duty is normally not owed if the individual coming upon the premises is a trespasser – with a notable exception for child trespassers.

And while a landowner is not an insurer of the safety of children who may trespass upon his property, a landowner is still “…liable for the consequences of his negligence where he should in the exercise of ordinary care have foreseen that harm would result to [a child] trespasser whose presence he should have anticipated.” Gregory v. Johnson, 249 Ga. 151, 154, 289 S.E.2d 232, 234 (1982)(quoting Starland Dairies, Inc. v. Evans, 105 Ga.App. 813, 815, 125 S.E.2d 682 (1962)).

This is known as the attractive nuisance doctrine. It serves to protect children – who may not fully appreciate the risks associated with their trespass – and incentivizes landowners to take reasonable steps to safeguard children from foreseeable harm stemming from a dangerous condition upon the landowner’s premises. It is a long-standing Georgia legal doctrine, and practitioners should be aware of its availability in any premises case involving a child where the child’s presence may not have been licensed or consented to by the landowner.

Parker Miller and Houston Kessler, lawyers in our Atlanta office, handle these types of cases and numerous other premises liability and negligent security cases in Georgia and other states. If you have any questions about these cases, you can contact them at 800-898-2034 or by using the form at the bottom of this page.

Class Action Litigation

Update On ARC Airbag Inflators Product Liability Litigation

We have previously written on one of our newer cases involving defective airbag inflators, In re ARC Airbag Inflator Products Liability Litigation. When a crash is detected, the ARC-made inflators are prone to exploding due to excess friction weld flash inside the inflator that may block the ventilation holes. Once the inflators explode, shrapnel is dispersed throughout the vehicle cabin, potentially injuring or killing the occupants. The ARC inflators are installed in many vehicles on the road today made by General Motors, FCA, Ford, Hyundai, and Kia.

Many similar cases filed across the country related to the defective ARC inflators led to a petition with the Judicial Panel on Multidistrict Litigation (JPML) for consolidation for pre-trial purposes as a multidistrict litigation (MDL). The JPML recently consolidated the cases in litigation before Judge Eleanor Ross in the U.S. District Court for the Northern District of Georgia.

Following consolidation, Judge Ross entered a detailed and thoughtful case management order, setting various deadlines for discovery and motion practice, including an early Rule 26(f) conference and initial discovery and filing a master complaint and motions to dismiss. Judge Ross also ordered the plaintiffs to file a consent motion for the already agreed-upon organizational structure to lead the plaintiffs’ side.

The judge affirmed the order and appointed Demet Basar from Beasley Allen as a co-lead attorney to help direct the litigation. We will update our readers as this very important case progresses.

The Beasley Allen lawyers working on this case in addition to Demet are Dee Miles, Clay Barnett, Tom Willingham, Mitch Williams, and Dylan Martin, along with attorneys from Lieff Cabraser Heimann & Bernstein, LLP, Baron & Budd, P.C., Motley Rice LLC, Carella, Byrne, Cecchi, Brody & Angello, P.C., Cotachett, Pitre & MacCarthy, LLP, and Levin, Papantonio, Rafferty, Proctor, Buchanan, O’Brien, Barr & Mougey, P.A.

The case is In re ARC Airbag Inflators Products Liability Litigation, MDL No. 3051, Case No. 22-CV-03285-ELR, pending in the Northern District of Georgia.

Class Filed Over E-Torque Defect In RAM 1500 & Jeep Wrangler

Dee Miles, Clay Barnett, Mitch Williams, Rebecca Gilliland and Dylan Martin, lawyers in our firm’s Consumer Fraud & Commercial Litigation Section, are pursuing a very important class action lawsuit against Fiat Chrysler Automobiles LLC (FCA) filed in the Eastern District of Michigan. Our plaintiffs allege that 2019-2022 RAM 1500 and Jeep Wrangler vehicles (class vehicles) are designed, manufactured, sold, and leased with a defect that causes the vehicles’ engines to turn off, shift the transmission to “Park,” and/or apply the emergency brakes, spontaneously and without warning (the eTorque defect).

All class vehicles are equipped with an internal combustion engine and the eTorque “mild hybrid” system, which is intended to improve the class vehicles’ fuel efficiency without compromising power and torque. The eTorque system serves several functions, including:

The eTorque system’s software or hardware components are not adequately designed, resulting in the class vehicles’ engines unexpectedly shutting off, shifting to “Park,” and/or engaging the emergency brake without user input. As the defect appears in all driving conditions, these vehicles present a serious safety risk to vehicle occupants and others on the road.

FCA knew of the eTorque defect as early as 2018 based on consumer complaints submitted to NHTSA, pre-release design and testing, warranty claims for repairs associated with the eTorque defect, and technical service bulletins (TSBs) issued by FCA. To date, FCA has not recalled or offered an extended warranty for class vehicles for the eTorque defect, nor has FCA determined the defect’s root cause. Instead, FCA issued limited TSBs for certain model year 2021-2022 Ram 1500 trucks equipped with the 5.7L V8 HEMI MDS VVT eTorque engine and excluded all other class vehicles.

The FCA eTorque case is Fisher, et al., v. FCA US LLC, filed in the U.S. District Court for the Eastern District of Michigan.

The plaintiffs and the proposed class are represented by Beasley Allen and lawyers from The Miller Law Firm, P.C., Lieff, Cabraser, Heimann, & Bernstein, LLP, and Newsom Law, PLC.

If you or someone you know has experienced the eTorque defect in their Ram 1500 or Jeep Wrangler vehicle, contact Michelle Fulmer, Section Director of our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by using the form at the bottom of this page. She will have one of the lawyers handling the case contact you.

Another GM Attack On The $102.6 Million Class Action Jury Verdict

In a not-so-surprising move, General Motors is still fighting against accepting responsibility for its Generation IV 53 LC9 ‘ defective engines. GM moved orally under Rule 50(a) for a Judgment as a Matter of Law at trial.  The court did not expressly rule on the motion but let the case go to the jury – implicitly denying GM’s request. GM has now renewed its motion under Rule 50(b) (JNOV) and asked the court to de-certify the class. The plaintiffs also had two pending motions, one for punitive damages because of GM’s egregious behavior and one to clarify the date class membership is set.

At a hearing on Feb. 23, 2023, Judge Chen primarily focused on one aspect of the JNOV, asking what evidence supported the jury’s verdict under California law that the defect was substantially certain to manifest. The plaintiffs reminded the court that the existence of a defect in all class vehicles was established and could manifest in any number of ways. As the plaintiffs described at trial and GM’s documents showed, worn piston rings causing excessive oil consumption can manifest through oil-fouled spark plugs, rough-running engines, cylinder misfires, low oil between oil changes, and, eventually, engine replacement. In addition to the testimony of the plaintiffs’ expert, Dr. Jeffrey Ball, that if the defect exists, he would expect 100% manifestation at some point, this leads to the reasonable conclusion that the defect will manifest in some form in every vehicle.

Regarding the class certification and membership motions, the court focused on tolling and fraudulent concealment questions but declined to reconsider the earlier grant of certification. GM did not appear to gain much ground at the hearing (nor in its briefing). Based on the briefing and hearing, the strength of the evidence, and Judge Chen’s focused questioning, plaintiffs are confident the verdict will stand. This is despite GM’s last-ditch efforts to avoid liability for their defective design.

We will keep our readers posted on any new developments with this important consumer class action verdict. In the meantime, if you have any questions, contact Rebecca Gilliland at 800-898-2034 or by using the form at the bottom of this page. Stay tuned!

Drivers Ask Judge To OK Hyundai, Kia $326 Million Deal Over ABS Brakes’ Fires

A class of Hyundai and Kia drivers has asked a California federal judge to approve a settlement agreement reached with the automakers. The deal would resolve claims involving defective anti-lock (ABS) brakes that can trigger fires, even when the vehicles are parked, and the ignition is turned off.

If approved, the settlement agreement would end three nationwide class action lawsuits consolidated in the Central District of California. The deal is worth at least $326 million but could increase to double that amount depending on how many class members take advantage of the proposed remedies.

The consolidated class action suits allege that Hyundai Motor Co., Hyundai Motor America Inc., Kia Corp. and Kia America Inc. sold about 3 million vehicles with faulty ABS modules that could short circuit and cause a spontaneous engine fire. The defect prompted both automakers to urge drivers to park their vehicles outdoors and away from any structures. 

Vehicles affected by the ABS module defect include most 2006 to 2021 Hyundai and Kia models, with about 3.1 million vehicles in total. The Hyundai class vehicles in the litigation include model years 2014-2021 Tucson; 2007 and 2017- 2018 Santa Fe; 2013-2015 and 2017-2018 Santa Fe Sport; 2019 Santa Fe XL; 2006-2011 Azera; 2017-2020 Genesis G80 sedans; 2019-2021 Genesis G70 sedans; 2015-2016 Genesis; 2007-2010 Elantra; 2009-2011 Elantra Touring; 2006 Sonata; and 2007-2008 Entourage. The Kia class vehicles include model years 2008-2009 and 2014-2021 Sportage; 2007-2009 and 2014-2015 Sorento; 2013-2015 Optima; 2018-2021 Stinger; 2006- 2010 Sedona; 2017-2019 Cadenza; and 2016-2018 K900 vehicles which were also the subject of recalls by the National Highway Traffic Safety Administration. 

Under the settlement terms, class members will be fully reimbursed for repairs and other expenses stemming from the defective ABS module, such as towing and car rentals. They will also receive a free inspection of the ABS module and an extended warranty to cover all future expenses related to the ABS defect. For class members whose vehicles were destroyed by an ABS-related fire, the deal will pay them the maximum “Black Book” value of their vehicle and a $140 goodwill payment.

Kia America said in a statement: 

This settlement provides customers with numerous benefits, including a warranty extension for the ABS Module/HECU for all class vehicles so that any qualifying repair will now be covered without cost to the class member for five to twelve years. The settlement also allows customers to seek reimbursement of out-of-pocket costs related to qualifying ABS Module/HECU repairs, rental changes, and loss of class vehicle that customers may have incurred in the past.

The plaintiffs are represented by Elizabeth A. Fegan and Jonathan D. Lindenfeld of Fegan Scott LLC, Steve W. Berman, Thomas E. Loeser and Rachel E. Fitzpatrick of Hagens Berman Sobol Shapiro LLP, Jonathan M. Jagher of Freed Kanner London and Millen LLC, Katrina Carroll and Todd D. Carpenter of Lynch Carpenter LLC, Jennifer A. Lenze of Lenze Lawyers PLC, J. Barton Goplerud of Shindler Anderson Goplerud and Weese PC, and Rosemary M. Rivas, David Stein and Rosanne L. Mah of Gibbs Law Group LLP. 

Sources: Law360

Class Action Lawyers At Beasley Allen

Beasley Allen lawyers remain heavily involved in class action litigation around the country. Dee Miles, who heads the Consumer Fraud & Commercial Litigation Section, leads the effort. Other lawyers in the section who handle class action cases are:

Demet Basar, Lance Gould, Clay Barnett, James Eubank, Mitch Williams, Rebecca Gilliland, Rachel Minder, Paul Evans and Dylan Martin.

THE WHISTLEBLOWER LITIGATION

Beasley Allen Wins A $4.6 Million Whistleblower Verdict

In March 2022, Beasley Allen secured a jury verdict for $1,438,467.74 in damages under the False Claims Act (FCA) against the Birmingham–Jefferson County Transit Authority (BJCTA). The agency had knowingly made false claims to federal transportation officials, which was the basis for the claim. The decision resulted from a lawsuit filed in April of 2018 by relators/whistleblowers Starr Culpepper, a former transit employee, and O. Tameka Wren, who served as chair of the BJCTA board from October 2017 to January 2018. 

As a recipient of federal grant money from the Federal Transit Authority (FTA), the BJCTA must comply with necessary federal laws, rules and regulations when procuring architectural and engineering (A&E) services. A&E services particularly demand compliance with the federal “Brooks Act,” also known as the Selection of Architects and Engineers Statute. The Act requires that the selection of engineering and architecture firms should be based on their competency, qualifications and experience rather than price.

The BJCTA flagrantly violated the Brooks Act selection requirements by solely sourcing from the third-most qualified A&E firm the BJCTA evaluated, all the A&E services connected with the Bus Rapid Transit (BRT) Project collaboration between the City of Birmingham and the BJCTA. The BRT project was designed to update Birmingham’s inner-city transit system by connecting 25 neighborhoods. The jury found that the relators proved the BJCTA falsely implied compliance with the Brooks Act when asking for federal grant money to pay for a sole-sourced contractor’s work and awarded the government compensatory damages of $1,438,467.74

In the intervening months, several post-trial motions were filed by both parties. The BJCTA asked the court to issue a judgment as a matter of law on its behalf and essentially invalidate the jury’s verdict, arguing that relators failed to present sufficient evidence on falsity, scienter and materiality. The relators asked the court to issue a judgment as a matter of law that the damage amount is 100% of the grant monies that the FTA awarded the BJCTA and assess penalties per the statute.

On March 7, 2023, U.S. District Judge Corey L. Maze issued an order in favor of the relators. The judge affirmed the jury’s decision and determined the verdict award is subject to a trebling under the FCA. That amounted to $4,315,403.22. Judge Maze also assessed civil penalties against the BJCTA for each of its 22 violations of the FCA, resulting in a penalty award of $308,000. That made the final damage award $4,623,403.22.

Judge Maze’s 44-page order is a comprehensive and forthright evaluation of how each element of the False Claims Act was supported by the evidence presented by the relators while serving as an abridgment for establishing critical nuances of each element under the statute. Most importantly, Judge Maze found that the federal government received no benefit as a matter of law from BJCTA’s noncompliant sole-sourced work.

With deference to the jury’s finding of materiality throughout his analysis, Judge Maze forthrightly dismisses the BJCTA’s primary argument they should be offset with credit from the noncompliant sole-sourced work because the work still offered an intangible benefit to the FTA and its purpose to provide public transport by enhancing the Birmingham transportation system before damages are calculated against them by stating that  “…as a matter of policy and common sense, [BJCTA] should not be credited for satisfying one of Congress’s policy goals while violating another.”

Judge Maze’s order also provides a sweeping and historical illustration of how the BJCTA knowingly and willfully acted against the best interest of the citizens it served as an agent of the FTA, in line with the “chief purpose” of the FCA is to “provide for restitution to the government of money taken from it by fraud. (See United ex rel Marcus v. Hess, 317 U.S. 537, 551 63 S.Ct. 379, 388, 87 L.Ed. 443 (1943)).”

This case is a victory against abuse by Corporate America of the government. It demonstrates why FCA cases brought by relators are essential in fighting fraud against the government and preventing bad actors from wasting taxpayers’ money for their own personal benefit.

The relators were represented by Beasley Allen lawyers Larry Golston, Leon Hampton, Lauren Miles and Jessica Haynes of the firm’s Consumer Fraud & Commercial Litigation Section. The case is United States Ex. Rel. Culpepper, et al., v. Birmingham-Jefferson County Transit Authority, et al., case no. 2:18-cv-567-CLM in the Northern District Court of Alabama.

Government Wins $43 Million Verdict In False Claims Act Case

A Minnesota federal jury handed down a $43 million verdict in a whistleblower lawsuit against an ophthalmology distributor. The verdict potentially opens the door to $485 million in False Claims Act (FCA) liability. The lawsuit accused the distributor of showering surgeons with luxury travel, sports tickets and other forms of kickbacks to induce doctors to use their eye surgery products. The jury found that the defendants’ kickbacks cause the submission of 64,575 false claims to the Medicare program between 2006-2015.

The government’s complaint alleged a distributor called Precision Lens and its founder, Paul Ehlen, paid kickbacks to doctors to induce them to use eye surgery products supplied by the company and its corporate partner, Sightpath Medical Inc. These kickbacks included luxury skiing vacations, fishing trips, golf and hunting outings, private jet travel, and lavish meals. 

Under the FCA, damages could be tripled to approximately $130 million, and during the 2006-2015 time period covered by the case, every false claim could trigger penalties of $5,500 to $11,000, working out to a range of $355 million to $710 million. That would equate to total damages and penalties of roughly $485 million to $840 million.  The lawsuit was initially brought by a whistleblower under the qui tam provisions of the FCA, which allow private parties to bring suit on behalf of the government for false claims.  Under the FCA, whistleblowers receive 15% to 25% of the proceeds in the cases the government joins. The whistleblower received a 19.5% share of two earlier settlements collectively worth about $15 million with other defendants in his case.

Source: U.S. Department of Justice

The Beasley Allen Whistleblower Litigation Team

Beasley Allen lawyers continue to be heavily involved in handling whistleblower cases. Fraudulent conduct in corporate America continues to cause huge problems in many industries in this country. Fortunately, we significantly increased our healthcare whistleblower practice months ago. Currently, our lawyers are handling cases throughout the country involving fraud against governments at both the federal and state levels.

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 questions about whether you qualify as a whistleblower, contact a lawyer on our Whistleblower Litigation Team for a free and confidential evaluation of your claim.  There is a contact form on our website, or you may call or email one of the lawyers on our team who are listed below.

The experienced lawyers on the Whistleblower Litigation Team are dedicated to handling whistleblower cases. The Beasley Allen lawyers listed below are on the team: Larry Golston, Lance Gould, James Eubank, Paul Evans, Leon Hampton, Tyner Helms, Lauren Miles and Jessi Haynes. Dee Miles heads our Consumer Fraud & Commercial Litigation Section and works with the litigation group. The lawyers can be reached by phone at 800-898-2034 or by using the form at the bottom of this page.

INSURANCE LITIGATION

USAA’s $5 Million Bad-Faith Case Sent To Trial By Eleventh Circuit

The Eleventh Circuit ordered a division of insurance provider, USAA, to fight a $5 million bad-faith case with an injured driver, Daniel Ilias, at trial. The decision reversed and remanded an earlier ruling in favor of USAA.

According to Law360, the appellate panel found that the lower court incorrectly granted USAA General Indemnity Co. summary judgment. The three-judge panel determined “that a reasonable jury could conclude that USAA handled Ilias’ claim in bad faith and that USAA caused or contributed to an excess judgment against IIias as the policyholder.” U.S. Circuit Judge Stanley Marcus said in the court’s opinion:

Material issues of fact as to bad faith and causation remain in dispute and Ilias is entitled to have a jury resolve them. 

The case arose from a July 2017 car crash with Scott Dunbar that left Ilias with severe injuries, including a torn aorta and broken bones.

The two drivers were traveling on a highway in Pasco County, Florida. The police report would show that Dunbar was driving carelessly, traveling 70 mph in a 45-mph zone just before losing control of his van. Dunbar’s van jumped to the center median and landed on Ilias’ vehicle. USAA, which insured Dunabar, was informed of the crash the same day it happened and of Ilias’ injuries shortly after.

Dunbar’s USAA insurance policy limited coverage to $10,000 per person for bodily injuries and up to $20,000 per accident. The month following the crash, USAA accepted liability for injuries Ilias suffered, given the police report’s finding Dunbar solely at fault for the accident. 

A new USAA adjuster took over Ilias’ claim more than a month later, offering the $10,000 per person bodily injury policy limit. Ilias filed a personal injury lawsuit against Dunbar in Florida state court in October 2017 and was awarded a $5 million judgment against Dunbar at the close of trial.

Ilias then filed the current action in state court alleging bad faith against USAA under Florida common law. The court granted USAA summary judgment, finding that while USAA may have been negligent in how it approached Ilias’ claim, it did not act in bad faith. The lower court also held that a reasonable jury could not find that USAA’s actions led to the excess judgment against Dunbar, reasoning that Ilias’ lawyer, Maryanne Furman, had no intentions of settling the claim.

The Eleventh Circuit panel held that while USAA had the necessary information to offer the policy limits, it unduly delayed beginning the settlement negotiations. Judge Marcus said:

Despite learning that Ilias had suffered grievous injuries, so that his damages would almost surely exceed Dunbar’s $10,000 policy limit, and despite determining that Dunbar was solely at fault for the accident, USAA delayed initiating settlement negotiations for over a month. 

The panel further held that a reasonable jury could find sufficient evidence that USAA’s failure to offer the policy limits and begin settlement negotiations in a timely manner was not acting in the same way or with the same diligence as if it were acting on Dunbar’s behalf.

Court records show that USAA failed to give Furman the information she needed for her client’s (Ilias’) case and requested to settle the case. Furman explained to USAA that she couldn’t accept the policy limit and would not release Dunbar from liability until she had the information she needed to confirm Dunbar had additional insurance coverage to fulfill the excess judgment.

Judge Marcus noted:

Yet USAA did nothing in its capacity as the ‘go-between’ to facilitate the exchange of that information or to seriously apprise its insured of the risk posed by an excess judgment.

Regarding the question of USAA’s contributing to the entry of an excess judgment against Dunbar, the panel determined that there is a genuine issue of material fact. Judge Marcus said:

Had USAA complied with its ‘duty to initiate settlement negotiations’ sooner, or provided Furman with a coverage affidavit before Ilias filed suit, the case may have settled before rising costs changed the calculus.  

Chief U.S. Circuit Judge William H. Pryor Jr. and U.S. Circuit Judges Robin S. Rosenbaum and Stanley Marcus sat on the appeals panel for the Eleventh Circuit. Ilias is represented by Richard M. Benrubi of Benrubi Law PA and Philip M. Burlington and Adam Richardson of Burlington & Rockenbach PA. 

The case is Ilias v. USAA General Indemnity Co., case number 21-12486, in the U.S. Court of Appeals for the Eleventh Circuit. 

Source: Law360

SECURITIES LITIGATION

TD Bank To Pay $1.20 Billion To End Stanford Ponzi Suit

TD Bank has announced that it agreed to pay over $1.2 billion to settle a civil suit over its alleged involvement in the multibillion-dollar scheme run by convicted Ponzi scammer Robert Allen Stanford. The case against TD Bank and other financial institutions alleges that they ignored red flags that allowed Stanford to misappropriate investors’ funds. The case was scheduled to enter jury selection in Houston on the morning the settlement was announced.

Beyond TD Bank, HSBC Bank PLC agreed to pay $40 million, and Independent Bank Group Inc. (formerly known as Bank of Houston) agreed to pay $100 million to settle similar claims, yielding over $1.3 billion for the Stanford receiver to cover investor losses. 

TD Bank announced the proposed settlement on its website, noting that it “expressly denies any liability or wrongdoing.” The statement said:

TD provided primarily correspondent banking services to Stanford International Bank Ltd. and maintains that it acted properly at all times. TD elected to settle the matter to avoid the distraction and uncertainty of continuing a long legal proceeding.

HSBC issued a similar statement that it “is pleased to have resolved this claim, which relates to matters over a decade old, with no admission of any liability or wrongdoing.”

Stanford began his Ponzi scheme in the 1980s with the founding of Stanford Financial Group, headquartered in Houston, Texas. Through an affiliated company, Stanford International Bank, Stanford sold certificates of deposit to investors, which were pitched to provide consistent returns with little risk. In reality, Stanford and other insiders stole billions in investor funds to support their lavish lifestyle and used the rest in speculative investments or to repay prior investors. 

When federal agents raided Stanford Financial’s offices in February 2009, the scheme had taken in roughly $7.2 billion from over 50,000 investors in the U.S. and abroad. According to the SEC’s complaint, “[b]y year-end 2008, Stanford had misappropriated more than $1.6 billion from SIB.” 

After attempting to flee the country, Stanford was arrested in June 2009 and charged with 14 counts, including wire fraud, mail fraud, conspiracy, and obstruction.  In March 2012, a Texas federal jury convicted Stanford of 13 counts related to the Ponzi scheme. Stanford is currently serving a 110-year sentence in federal prison. 

Investors filed a class action lawsuit against TD and the other banks related to the Stanford Ponzi scheme in 2009. They alleged that the banks provided banking services that supported and furthered Stanford’s scheme, exposing more investors to harm. The class asserted claims for conspiracy to commit fraud and aiding and abetting fraud, among others.

In January 2022, after years of litigation, U.S. District Judge David C. Godbey denied the banks’ motions for summary judgment on the investors’ aiding and abetting claims, noting that the plaintiffs had identified “evidence that the [d]efendants engaged with Stanford in significant, nonroutine ways that involved the exercise of substantial professional judgment and discretion.” 

A week before the TD Bank settlement, Societe Generale Private Banking (Suisse) SA agreed to pay $157 million to escape the same lawsuit. The receivership says it has collected $1.6 billion from five banks accused of involvement in the Stanford Ponzi scheme. Trustmark National Bank was the first to settle, in early February, for $100 million.

The three banks that most recently settled were the remaining defendants in the case, filed in 2009 by a proposed class of Stanford’s customers.

Stanford receiver Ralph Janvey and the official Stanford investors’ committee, tasked with recovering money on behalf of those allegedly defrauded, moved to intervene in the case. The court granted the intervention in 2012. The $1.6 billion recovered from the banks adds to the $1.1 billion the receiver has already recovered. 

“This is an extraordinary result for the victims of the Stanford fraud,” according to counsel for the receiver.  “Given all the challenges faced by the [r]eceivership since 2009, this is nothing short of a monumental recovery.” 

The case is Rotstain, et al. v. Trustmark National Bank, et al., case number 4:22-cv-00800, in the U.S. District Court for the Southern District of Texas. 

Beasley Allen lawyers are currently working on a similar Ponzi Scheme class action where major banks were involved in the substantial transactions necessary to facilitate such a scheme through large money transfers between banks. While banks know better, the need to attract deposits so money can be used to make more money seems just too irresistible to the major banks and results in significant liabilities, like in the Stanford case.

Our Commercial Litigation Team of lawyers includes Dee Miles, Lance Gould, James Eubank and Tyner Helms. They stand ready to assist consumers who have fallen victim to a Ponzi Scheme. Contact Michelle Fulmer, Section Director of our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by using the form at the bottom of this page. She will have one of the lawyers on the team contact you.

Source: Law360

Securities Class Action Against Tesla For Fraud

On Feb. 27, 2023, Elon Musk, the billionaire CEO of Tesla, was sued by a shareholder of his electric vehicle company for making false and misleading statements in the company’s Securities and Exchange Commission (SEC) filings about the effectiveness and safety of its electric vehicles’ autopilot and full self-driving technologies. In addition to Musk, the company’s current CFO, Zachary Kirkhorn, and former CFO, Deepak Ahuja, who, like Musk signed the SEC filings, are also defendants.

Tesla first announced the autopilot driver-assistance system in 2014, which at first provided automated lane-centering and self-parking. Now the system allows Tesla vehicles to be driven autonomously to a destination entered into the Tesla navigation system.

The class action lawsuit alleges that between Feb. 19, 2019, and Feb. 17, 2023, Tesla made a series of representations touting the safety of the autopilot and full self-driving technologies while omitting known risks that the technologies pose a serious risk of injury and even death. The lawsuit alleges that as the truth about these risks began to emerge, the market reacted, leading to steep stock price drops and causing investor losses. The complaint also lists numerous instances of the technologies in the Tesla vehicles malfunctioning while in operation, leading to dangerous conditions, some resulting in the loss of life.

For example, in April 2021, two people were killed when a Tesla with no one in the driver’s seat crashed into a tree and burst into flames. After this incident appeared in the news, the company’s stock price fell by 3.4%, or $25.15 per share, to close at $714.63.

In another example, in August 2021, a Tesla crashed through a fence and landed on top of a parked ambulance, injuring three occupants. In response to this incident, the National Highway Transit Safety Administration (NHTSA) ordered Tesla to hand over extensive data about U.S. cars with autopilot technology to determine if there was a safety defect that led Tesla cars to collide with first-responder vehicles. 

The following are some of the happenings:

• The NHTSA investigation caused a further drop in Tesla’s stock price by 4.32% to $686.17 per share in August 2021.
• As reports of accidents mounted, NHTSA expanded its investigation. In 2022, it issued a formal inquiry about Tesla’s autopilot and full self-driving technologies after receiving complaints from over 750 owners about sudden unintended braking. This caused Tesla’s stock price to drop by over 9%.
• NHTSA reported that Tesla vehicles running autopilot software were involved in 273 reported crashes and were suspected of causing six fatalities.
• On Feb. 5, 2023, NHTSA announced that Tesla agreed to recall nearly 363,000 vehicles in the U.S. equipped with its advanced driver assistance system due to crash-risk concerns while the vehicles were being operated at intersections.
• On Feb. 18, 2023, another Tesla incident was reported involving a crash into a fire truck which killed the driver and injured a passenger and four firefighters. This led to another sharp decline in Tesla’s stock price by 5.25%, to close at $197.37.
• After the lawsuit was filed on March 8, 2023, NHTSA commenced an investigation into the Feb. 18 crash. Since 2016, NHTSA has opened more than three dozen investigations into accidents involving Tesla’s autopilot technology—twenty of those involved fatalities.

According to Tesla, the Tesla Model S, Model 3, Model X and Model Y have achieved among the lowest overall probability of injury of any vehicles ever tested by the U.S. government’s New Car Assessment Program.

This litigation is sure to be vigorously defended by Tesla and Musk, as has every other litigation filed against Musk and his companies. Securities fraud class actions require plaintiffs to establish that the speaker acted with scienter, which can be challenging to prove.

The case is Lamontagne v. Tesla Inc., et al., No. 23-00869, pending in the U.S. District Court for the Northern District of California. We will continue to monitor this litigation.

If you have any questions or need help on a case, contact Demet Basar, a lawyer in our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by using the form at the bottom of this page.

Sources: The Verge, The Register and Tesla

Cannabis Company Tilray’s $39.9 Million Settlement Approved by Chancery

Chancellor Kathaleen St. J. McCormick in the Delaware Court of Chancery approved a $39.9 million settlement between Canadian cannabis venture Tilray Inc. and its shareholders on March 7, ending litigation that began in February 2020. At that time, shareholders brought direct and derivative claims on behalf of the company against Privateer Holdings Inc.

Privateer Holdings Inc. is a private equity firm based in Seattle, Washington, that created Tilray. Privateer was founded by three people connected to Tilray, including Tilray CEO Brendan Kennedy and two Tilray board members, Maryscott Greenwood and Michael Auerbach.

The shareholders’ 2020 lawsuit alleged that Tilray reorganized itself in 2019, benefiting the three Privateer founders to Tilray’s minority shareholders’ disadvantage. The shareholders claimed as part of their direct lawsuit that the private equity shareholders exploited their “supervoting stock” to control the company for their benefit, according to Law360. In their derivative claim, the shareholders argued that the Privateer founder directors planned a two-step spinoff and merger to reap the benefits from “hundreds of millions in tax savings.” These benefits were not shared with Tilray stockholders.

In June 2021, Chancellor McCormick refused to dismiss the derivative claim. She found that the derivative suit allegations showed that it is “reasonably conceivable that the desire to avoid massive tax liabilities through the reorganization was more than merely a concurrent interest, but rather, a shared goal that the founders agreed or arranged to work toward.”

Later that year, Tilray’s board established a special litigation committee and requested a stay in the legal proceedings while it investigated the derivative claim. The investigation over eight months revealed that the derivative claim was likely legitimate and the company’s board members could face liability due to the merger. The committee was advised by its counsel, former Chancellor William B. Chandler III of Wilson Sonsini Goodrich & Rosati PC, to work towards settling the claims and expressed this plan to the court in May 2022.

Two months later, the company and shareholders tentatively agreed on a $26.9 million settlement. Former Chancellor Andre G. Bouchard of Paul Weiss Rifkind Wharton & Garrison LLP mediated the settlement negotiations.

In December 2022, a final proposed settlement was filed with the court and without explanation, the amount had increased to $39.9 million. The amount would be given to Tilray because of the derivative claim since the direct claim was no longer viable. Tilray created a stock conversion that addressed the direct claims.

Formal objections were filed with the court, including an argument that the settlement proceeds should be distributed to the stockholders pro rata.   Chancellor McCormick determined that none of the objections to the settlement were sufficient for her to reject the settlement.

Chancellor McCormick noted that since the direct claim was no longer viable and had been addressed by the company’s stock conversion plan, only the derivative lawsuit was still pending to be addressed. She explained that proceeds from derivative claims typically go to the company, not to stockholders directly, finding that “these objections do not defeat the settlement.”

The chancellor also approved $6.5 million in fees and expenses to be given to the plaintiffs’ lawyers. She said she was “not troubled” by the 16% fee request and that it “compares favorably with other settlements.”

Bernstein Litowitz Berger & Grossmann LLP, Friedlander & Gorris PA, Friedman Oster & Tejtel PLLC, Andrews & Springer LLC and Kaskela Law LLC, representing the plaintiffs, will share the fee award for their work, the total amount they requested.

The case is In Re: Tilray Inc. Reorganization Litigation, case number 2020-0137, in the Court of Chancery of the State of Delaware.

Source: Law360

Beasley Allen Securities Litigation Team

Lawyers in our firm remain very active in securities cases. This area of our practice continues to grow. We anticipate there will be a marked increase nationally in securities litigation. Lawyers in our Consumer Fraud & Commercial Litigation Section welcome any opportunity to investigate suspected practices and are blessed to be able to engage with both new and established colleagues in federal securities law and state securities litigation. You can contact a member of our Securities Litigation Team concerning any securities issues. The team consists of the following lawyers:

James Eubank, who heads the team, along with Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the section, also works with the team. The team members can be reached at 800-898-2034 or by using the form at the bottom of this page.

MASS TORTS LITIGATION

Beasley Allen’s Navan Ward Named To Hair Relaxer Plaintiff Executive Committee

On March 2, 2023, Judge Mary Rowland named Beasley Allen lawyer Navan Ward to the Plaintiffs Executive Committee in MDL 3060: In Re: Hair Relaxer Marketing, Sales Practices, and Products Liability Litigation, in the U.S. District Court for the Northern District of Illinois.

Navan is a recognized leader in the mass tort community, having served in leadership positions in the DePuy “ASR” Hip Implant Recall Multi-District Litigation (MDL), the DePuy “Pinnacle” Hip Implant MDL, Biomet M2a Magnum Hip Implants, and the PPI MDL litigation. Navan is also the Immediate Past President of the American Association for Justice (AAJ) and a Founding Executive Committee Member of Shades of Mass, which helps increase the representation of lawyers of color in mass tort litigation leadership.

The hair relaxer lawsuits have been filed against companies making, selling and marketing hair relaxers, including L’Oréal, Softsheen-Carson, McBride Research Laboratories, Luster Products, Inc., Godrej Consumer Products, Strength of Nature, LLC, and Dabur USA. The defendant companies knew their hair relaxers contained toxic chemicals known to cause cancer. Yet, to this day, the defendants have failed to warn women of these risks.

Lawyers on our firm’s Hair Relaxer Litigation Team are investigating cases involving women who regularly used hair relaxers and developed uterine cancer, endometrial cancer, and ovarian cancer. If you or a loved one developed any of these health conditions after using chemical hair straighteners or hair relaxers, Beasley Allen lawyers can help you seek justice. Contact Melissa Prickett, Director of our firm’s Mass Torts Section, at 800-898-2034 or by using the form at the bottom of this page.

Final Approval Order Entered For Class Settlement In J&J Sunscreen MDL

Many of you know that Beasley Allen and four other firms were appointed to serve as class counsel in the Johnson & Johnson Aerosol Sunscreen Multi-District Litigation Proceeding. This multidistrict litigation (MDL) consolidated many consumer class action cases involving benzene-contaminated sunscreen sprays sold by Johnson & Johnson under the company’s Neutrogena and Aveeno product lines. 

Last month, U.S. District Judge Anuraag Singhal in the Southern District of Florida entered an order granting final approval of our nationwide consumer class action settlement agreement. Among other things, the settlement will allow class members to be reimbursed for their qualifying purchases of Neutrogena and Aveeno aerosol sunscreen products. It also imposes testing restrictions on Johnson & Johnson (J&J) that will help prevent future benzene-contamination problems. 

More specifically, the settlement requires J&J to direct its external manufacturer to do the following:

• purge any existing inventory of isobutane intended for the use in aerosol products;
• adopt new testing protocols requiring any supplier of isobutane raw material intended for use in aerosol products to test for the presence of benzene at no more than 0.1 parts per million (PPM) and refrain from shipping such raw material unless the shipment has passed such test; and
• engage an independent, ISO-certified laboratory to test random samples from at least 25% of manufacturing lots of finished aerosol products for the presence of benzene and to withhold the release of such lots unless all samples have passed the test.

Importantly, the class settlement agreement only addresses consumer purchase claims and does not impact the claims of individuals who may have suffered personal physical injuries due to benzene-sunscreen exposures. 

In granting final approval of the settlement, Judge Singhal overruled an objection filed by Theodore H. Frank – the sole Class objector. Judge Singhal concluded that the settlement is fair and reasonable and that Mr. Frank’s criticisms of the settlement’s value and proposed attorney fee award had no merit. Indeed, in overruling the objection, Judge Singhal wrote that when he asked the objector’s counsel what would make the settlement fairer, the lawyer’s response was “in effect, ‘a better settlement.'” To this, Judge Singhal offered the following comment and quote from one of the most celebrated U.S. presidents:  

But as President Teddy Roosevelt famously noted, “complaining about a problem without posing a solution is called whining…. This settlement provides immediate, real, substantial, and practical benefits to the class members. There is no ‘better settlement.”

Well said, Judge Singhal and thank you for all your hard work as the presiding Judge of MDL No. 3015. If you need more information, contact David Byrne, a lawyer in our Mass Torts Section, at 800-898-2034 or by using the form at the bottom of this page.

CPAP Litigation Update

On June 14, 2021, Philips Respironics issued a voluntary recall of over 15 million CPAP, BiPAP, and ventilator devices, at least half of which are used daily in the U.S. The recall was issued because the PE-PUR foam, used to reduce the noise and vibration of the machine, and its off-gasses have long been known to be toxic.

These toxic particles and fumes can enter the devices’ airways, which, in turn, are inhaled by the users. The potential health risks for inhaling particles of the PE-PUR foam include asthma, irritation to the respiratory tract, and cancer-causing effects on organs like the lungs and kidneys.

In anticipation of a high volume of plaintiffs filing complaints throughout the U.S., these plaintiffs were consolidated into a multidistrict litigation (MDL) in the Western District of Pennsylvania. On Sept. 14, a joint motion was approved, effectively replacing the former tolling agreement with the Census Registry program. 

Over the month of February, 62 new cases were filed in the CPAP MDL, bringing the total number of filed cases in the MDL to 420 pending cases as of this writing. It is anticipated that by the end of 2023, there will be over one thousand pending cases.

Beasley Allen lawyers are investigating claims for the users of the recalled CPAP machines who have suffered from the adverse effects of the recalled Philips Respironics machines. For more information, contact Alexa Wallace or Melissa Prickett at 800-898-2034 or by using the form at the bottom of this page.

Sources: U.S. Food and Drug Administration

Infant Formula Litigation Update

Beasley Allen lawyers continue investigating cases involving the development of Necrotizing Enterocolitis (NEC) in premature infants who were fed cow’s milk-based infant formula products. A number of lawsuits against formula manufacturers are pending in federal court and have been centralized into a multidistrict litigation (MDL), pending before Judge Rebecca R. Pallmeyer. Discovery is ongoing in those cases, and the parties recently made science presentations to the court. At this time, we anticipate trials for these cases will begin in Spring 2024.

Lawsuits filed against formula manufacturers in state courts, including many handled by Beasley Allen, also continue to move through the discovery process. On March 1, the Third Judicial Circuit in Illinois entered an order consolidating all cases within that circuit before Judge Dennis Ruth for pretrial purposes. This consolidation functions similarly to that within the MDL but will apply only to cases pending in Illinois’s Third Circuit.

As more information becomes available about the dangers of cow’s milk-based formulas, additional focus has also been brought to the marketing tactics of formula companies.  Recently, the peer-reviewed medical journal The Lancet published a series of articles on the importance of breastfeeding and included an analysis of how marketing efforts of formula companies consistently share misleading information and the effects of that misinformation on public health.

David Dearing and Brittany Scott, lawyers in our firm’s Mass Torts Section, are aggressively investigating and filing these cases. For more information, contact them at 800-898-2034 or by using the form at the bottom of this page.

Source: The Lancet

Plaintiffs Oppose Defendants’ Motion To Dismiss Acetaminophen Autism/ADHD MDL

On Feb. 10, defendants in the Acetaminophen Autism/ADHD multidistrict litigation (MDL) filed motions to dismiss plaintiffs’ claims. The motions to dismiss primarily argued that plaintiffs’ claims were preempted and failed to plausibly allege causation and knowledge. There were two motions to dismiss filed in the MDL, one by “retailer” defendants that sell acetaminophen products and another filed by Johnson & Johnson Consumer Inc. (JJCI). 

The filing comes only a few months after Judge Cote already denied the defendants’ motion to dismiss on preemption grounds on Nov. 14, 2022, holding that “[a] manufacturer of an OTC drug sold under the monograph system is permitted to change its label so long as it meets the requirements of its monograph and other applicable OTC drug regulations.” 

At that time, the court determined that acetaminophen manufacturers are not pre-empted from adding a more specific warning regarding potential prenatal acetaminophen risks and allowed the plaintiffs’ claims to proceed. Plaintiffs filed oppositions to the defendants’ more recent motions to dismiss on March 3, 2023, arguing that claims were not preempted, were properly pled, and plausibly alleged that prenatal acetaminophen use can cause autism and/or ADHD.

Beasley Allen lawyers in our Mass Torts Section are investigating cases involving prenatal exposure to acetaminophen and subsequently being diagnosed with autism or ADHD. For more information, contact Mary Raybon or Melissa Prickett at 800-898-2034.

TOXIC TORT LITIGATION

PFAS Legislation Update

Based on our previous reporting on the subject, I am reasonably sure most of our readers now know that PFAS are a class of over 10,000 synthetic chemicals hazardous to human health. PFAS are found in many industrial and consumer products such as microchips, aerospace, textiles, waterproof clothing, stainproof carpet, dental floss, and fast-food wrappers. Their prevalence in many products and inability to biodegrade has led to widespread environmental contamination of PFAS.

Unfortunately, there is very little PFAS regulation at the federal level, leaving states to legislate and regulate PFAS independently. In February 2023 alone, 41 bills were introduced in various state legislatures relating to PFAS. Proposed legislation typically involves water quality and environmental cleanup but also includes bans on PFAS in consumer products.

Recently both Rhode Island and California introduced bills to address PFAS bans in packaging. The nonstick and oil-resistant properties of PFAS have long been utilized for packaging such as microwave popcorn bags, fast-food wrappers, and pizza boxes.  Similarly, these bills aim to avoid human contact with PFAS by banning the chemicals from cosmetics and their packaging.

Illinois, Maryland, Minnesota, New Jersey, and New York introduced bills this session related to water quality. Water legislation addresses issues ranging from water quality standards for drinking water, wastewater management and standards, and monitoring and investigations. The absence of federal standards for PFAS in water has left many states to develop their own.

If you need more information or help on a case, contact David Diab at 800-898-2034 or by using the form.

Source: National Law Review

Update On Paraquat Litigation

The Paraquat Products Liability Litigation MDL, centralized in the Southern District of Illinois, currently has over 2,900 cases pending before Chief Judge Nancy J. Rosenstengel. In California, approximately 131 paraquat cases are pending in the Judicial Council Coordinated Proceedings (JCCP) before Judge Charles S. Treat.

In the California tract of cases, there has been a flurry of activity. Recently, a case management conference was held to discuss several key points. First, the briefing schedule for the Sargon motions was outlined. While the schedule was meant to mirror the Daubert briefing scheduling from the MDL, the experts in the JCCP will have to meet the requirements imposed under the Sargon criteria independently under California law. 

Further, due to the advanced and precarious health of the plaintiffs in this JCCP, additional bellwether cases were selected for workup. The plaintiffs selected two additional cases, and two cases were chosen by the defendants for four additional bellwether cases.

Beasley Allen lawyers Julia Merritt and Leslie LaMacchia are members of the Plaintiffs’ Executive Committee for the Paraquat MDL. Beasley Allen will be glad to answer any questions about the status of this litigation or the intricacies of the intake process, including the Plaintiff’s Assessment Questionnaire. Beasley Allen continues to accept cases where clients applied paraquat and have Parkinson’s Disease or Parkinson’s-like symptoms.

Lawyers on the Paraquat Litigation Team are Julia Merritt and Leslie LaMacchia, who head the team, and members Trisha Green, and Matt Pettit. Rhon Jones heads our Toxic Torts Section and works with the team on this important litigation. You can contact a lawyer on the team by phone at 800-898-2034 or online for more information on the litigation, including the MDL.

Flint’s $626 Million Deal Gets Final Approval From Michigan State Judge

A Michigan state judge approved a $626 million settlement between Flint, Michigan, residents and government officials over claims that lead had contaminated the city’s drinking water. The settlement was announced nearly three years ago and approved more than a year ago by the judge overseeing the Flint cases in Genesee County.

The delay in the state court’s final approval was due to the judge assigned to the litigation retiring last November amid allegations of sexual harassment.

The settlement resolves claims that Flint residents had waged against Michigan, the city of Flint, McLaren Regional Medical Center, and Rowe Professional Services Co. Michigan agreed to pay $600 million of the settlement; Flint, $20 million; McLaren, $5 million; and Rowe, $1.25 million.

A $202 million portion of the settlement fund will cover attorneys’ fees. Individual claimants and class members will divide the remaining money from the fund. However, the bulk of it — 80% — will be reserved for children, particularly those exposed to lead beginning at age 6 and younger. Adult claimants will share 15% of the funds, local school districts will get 2% to provide special education services to students affected by the water contamination, 3% will go toward property damage claims, and 0.5% will go to businesses.

Claims from about 43,000 people who filed to join the settlement before the 2022 deadline are currently under review

The Environmental Protection Agency and two engineering firms named in some Flint water contamination lawsuits declined to join the settlement.

Sources: Law360

EMPLOYMENT AND FLSA LITIGATION

Justices Won’t Review Circuit Split On FLSA Collective Actions

In Fair Labor Standards Act (FLSA) cases, a complaining class of employees must bring their case to federal court as a “collective action,” which means you are not a class member until you “opt-in.” An FLSA collective action case alleging unpaid overtime pay, filed by former FedEx Worker Christa Fischer, will not be reviewed by the U.S. Supreme Court on an important issue that many were closely watching. The issue – Fischer’s petition requested that the Supreme Court determine whether collective actions could include wage and hour claims in cases where the claims arise in a state different than that of the state where the case is being litigated. There is a circuit split between the First Circuit and the Sixth and Eighth Circuits.

Specifically, in January 2022, the First Circuit ruled in Waters v. Day & Zimmerman NPS, Inc. that workers can opt-in to an FLSA collective action, even when the worker lives outside of the state where the case is being litigated. The majority opinion, written by federal Judge Timothy Belcher Dyk, read, “[i]nterpreting the FLSA to bar collective actions by out-of-state employees would frustrate a collective action’s two key purposes:

In contrast, the Sixth and Eighth Circuits, which each ruled against the ability of an out-of-state worker’s ability to join an FLSA case, both held that a district court does not have the requisite jurisdiction over the out-of-state claims where the suit was filed. The alternative for those out-of-state workers, under these circuits, is for the worker to sue a business in the state where the company is headquartered or incorporated, as the state’s jurisdiction would apply to any claim against the company regardless of the location of the alleged violation.

While the Supreme Court had a great opportunity to clarify this issue, it chose not to do so and the “split” in the law regarding who can join an FLSA case and where is still uncertain. Perhaps the Supreme Court is relying on the circuits to reconcile this current quirk in the law amongst themselves. In the interim, Beasley Allen lawyers will continue to navigate around the current laws to best represent the workers of this country in protecting their rights.

If you have a client who is alleging violations of the Fair Labor Standards Act, we are ready to review these claims. Contact a member of the firm’s Employment Litigation Team: Lance Gould, Larry Golston, Leon Hampton, Lauren Miles, or Jessi Haynes at 800-898-2034 or by using the form at the bottom of this page.

Source: Law360

THE CONSUMER CORNER

Choking Deaths Prompt Calico Critter Toy Recall

Toy manufacturer Epoch Everlasting Play and the U.S. Consumer Product Safety Commission announced a recall of 3.2 million “Calico Critter” toys with accessories that pose a choking hazard to children. The toys are blamed for three choking incidents globally, including two fatal choking incidents.

The toys, which are sold globally in stores and online, feature a variety of animal figures, along with toy homes, vehicles, furniture, and other miniature accessories. The Calico Critters animal figures and playsets being recalled include toy bottle and pacifier accessories.

The items were manufactured between 2000 and 2021. The recall doesn’t include items sold after 2021 without the bottle and pacifier accessories. According to Epoch, the accessories came in pink, dark pink, blue, teal, yellow, and orange colors. The recalled toys and toy sets were sold online at www.Amazon.com and Calicocritters.com and in retail stores, including Walmart, Barnes & Noble, Meijer, and other retailers. 

A release from the manufacturer says that known fatalities include a two-year-old child in New Mexico in 2018 and a nine-month-old child in Japan in 2015.

Epoch lists the specific recalled products, the item numbers for each, and a claim form on its website, https://epocheverlastingplay.com/recalls/calico-critters/.

The company asks that adults destroy the recalled parts using scissors to cut off the top of the bottle and pacifier handle, then take photos of the destroyed parts and upload them with the claim. The company will send replacement accessories.

Sources: AL.com, Epoch Ever Lasting Play, CalicoCritters.com and U.S. Consumer Product Safety Commission

Judge Rejects Google’s Motion To Move Antitrust Case

A Virginia federal judge overseeing a government antitrust lawsuit against Google rejected the tech giant’s motion to transfer the case to New York, where several similar state and private lawsuits are consolidated for multidistrict litigation.

U.S. District Judge Leonie Brinkema in Alexandria, Virginia, said that Congress had expressed serious concerns about bunching the suit with the other consolidated cases, particularly private ones — a scenario that could bog down government enforcers and drag the case out.

In its motion to transfer the case to New York, Google said the U.S. Justice Department forum shopped the courts and chose Eastern Virginia to file the case because of the district’s “rocket docket” reputation for resolving cases quickly. The company’s lawyers maintained that the case has no significant connection to the venue.

The DOJ accuses Google of monopolizing online advertising. According to the complaint, Google “corrupted legitimate competition in the ad tech industry” by systematically seizing control of the tools publishers, advertisers, and brokers use for online advertising. The DOJ maintains that Google uses “anticompetitive, exclusionary, and unlawful conduct to eliminate or severely diminish any threat to its dominance over digital advertising technologies.” 

Unlike the lawsuits in the New York MDL, the DOJ’s suit is the only one that seeks to break up part of Google’s business.

In refusing Google’s transfer motion, Judge Brinkema said that federal antitrust cases are exempt from being consolidated with other cases across multiple jurisdictions. On December 29, 2022, the State Antitrust Enforcement Venue Act was signed into law, extending the same exemption from MDL to states.

This lawsuit is the DOJ’s second antitrust complaint against Google. Another, filed in Washington DC federal court in 2020, accuses Google of monopolizing search and search advertising, which are different from the digital advertising markets at issue in the latest lawsuit.

The federal government is represented by Jessica D. Aber, Gerard Mene, Julia Tarver Wood and Aaron M. Teitelbaum of the U.S. Department of Justice’s Antitrust Division. The states are represented by their respective attorneys general.

The case is U.S. et al. v. Google LLC, case number 1:23-cv-00108, in the U.S. District Court for the Eastern District of Virginia

Sources: Law360 and U.S. Department of Justice

Boy Scouts’ Chapter 11 Plan Upheld On Appeal

A Chapter 11 bankruptcy plan for the Boy Scouts of America confirmed in September 2022 was affirmed on appeal by U.S. District Judge Richard G. Andrews in Deleware on March 28. The plan creates a $2.5 billion settlement trust for more than 82,000 claims against the organization for childhood sexual abuse.

Judge Andrews acknowledged the case’s size and complexity in his 155-page ruling and noted that he carefully considered all parties’ arguments, including the more than 15 that appealed last September’s ruling. Judge Andrews said:

Appellants argue on many fronts that the plan did not meet requirements for confirmation, and I have carefully considered each of these arguments. Based on the record, appellants have failed to put forth evidence that would demonstrate clear error in the bankruptcy court’s careful findings of facts. Finding no error in the bankruptcy court’s legal conclusions, either, I will affirm the confirmation order.

The Boy Scouts of America filed for bankruptcy in February 2020 when the organization was facing hundreds of abuse claims. More than 80,000 abuse claims had been filed in the bankruptcy by the deadline for filing such claims.

U.S. Bankruptcy Judge Laurie Selber Silverstein confirmed the Boy Scouts of America’s Chapter 11 Plan on Sept. 8, 2022. Two weeks later, some non-settling insurers and abuse claimants filed an appeal.

Source: Law360

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

The Latest Look At Case Activity At Beasley Allen

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

Practices

• Business Litigation
• Class Actions
• Consumer Protection
• Employment Law
• Medical Devices
• Medication
• Personal Injury
• Product Liability
• Toxic Exposure
• Whistleblower Litigation

Cases

The cases in the categories listed below are handled by lawyers in the appropriate Litigation Section at Beasley Allen. The list can be found on our homepage, on the top navigation, or on the Cases page of our website (BeasleyAllen.com/Recent-Cases/).

• Acetaminophen
• Auto Accidents
• Aviation Accidents
• Camp Lejeune
• CPAP Devices
• Defective Tires
• Hair Relaxers
• Heavy Metals in Baby Food
• Mesothelioma
• NEC Baby Formula
• Negligent Security
• On-the-Job-Injuries
• Paraquat
• Social Media
• Talcum Powder
• Truck Accidents

Resources to Help Your Law Practice

Beasley Allen only handles litigation on behalf of individuals, companies and governmental entities that have been injured or damaged in some manner by a wrongdoer. Our lawyers do no defense work of any kind. However, we continue to receive inquiries from some in corporate America asking if our firm would consider defending them in lawsuits.

All of us at the firm are pleased and humbled that our law firm has consistently been recognized as one of the country’s leading law firms representing solely claimants involved in complex civil litigation. It is an honor and a privilege to be trial lawyers for victims of wrongdoing. I want to make it very clear: our firm does no “defense work” at all for corporate America. I made that decision in 1979, and the firm has stuck to it ever since.  

All of us at Beasley Allen have truly been blessed. We understand the importance of sharing resources and teaming up with peers in our profession. The firm is committed to investing in resources that will help our fellow trial lawyers in their work. For those looking to work with Beasley Allen lawyers or simply seek information that will help their law firm with a case, the following are among our most popular resources.

Co-Counsel E-Newsletter

Beasley Allen sends out a Co-Counsel E-Newsletter 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.

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 essential 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.

Webinars

Beasley Allen hosts a variety of webinars. These webinars feature lawyers in the firm and cover topics related to Beasley Allen cases. Continuing legal education (CLE) credits for Alabama or Georgia are often available for live presentations. To register for upcoming events or to access past webinars on-demand, you can visit the Events and Webinar page of the Beasley Allen website at https://www.beasleyallen.com/events/.

PRACTICAL TIPS FOR TRIAL

What To Expect After A Crash With A Commercial Truck

Mike Crow, a veteran lawyer in our firm, has some tips on handling cases involving commercial trucks. Mike, an exceptionally talented lawyer in the firm’s Personal Injury & Products Liability Section, has successfully handled a number of cases involving personal injury and deaths arising out of truck-related litigation. Let’s see what Mike has to say.

What To Expect After A Crash With A Commercial Truck

Hopefully, you or someone you know will never be involved in a commercial truck crash because it could be devastating and fatal.

However, should this happen to you or someone you know, they should contact a lawyer or law firm that has handled these cases in the past. The lawyer or law firm will have experience and the financial ability to handle such a matter.

Thinking about hiring a law firm is probably the farthest thing from your mind if you have been in a commercial truck crash because your whole life has been suddenly disrupted, and you are attempting to bring normalcy back into your life. 

The trucking company will respond to the catastrophic event shortly after it occurs with lawyers, accident investigators, accident reconstructionists, and insurance adjusters. The only person remotely being an advocate for you may be the law enforcement officer or the DOT investigator if the State uses them.

The first 24 hours of any catastrophic crash are crucial because the trucking company will have people on the scene being an advocate for the trucking company. To place yourself on equal footing with the trucking company, the law firm you hire should have investigators to speak with the law enforcement officers and witnesses, photograph the scene and vehicles, download the black box information, request the trucking company to preserve all electronic data, whether it is the driver’s logs, onboard video recordings, and/or all telematics. This law firm should be able to hire an accident reconstructionist and trucking expert.

Rest assured, the truck driver has been given a checklist of tasks to perform at the crash scene. They will include but not be limited to the following: notifying the trucking company, securing the vehicles, putting out reflectors and following federal regulations, contacting 911, not rendering aid to any victims or speaking to anyone at the scene except law enforcement officers, taking photographs, taking video, and performing a drug and alcohol screen if required.

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Contacting an experienced lawyer in a law firm with the resources needed to go to war with the powerful trucking industry will put you in a better position to resolve your claim earlier than later. Beasley Allen has a team that includes experienced lawyers, support staff, and investigators working on commercial truck cases. Lawyers on the team have handled a large number of cases involving commercial trucks and have a very good track record.

If you have any questions or need help on a trucking case, contact Mike Crow. You can also contact Sloan Downes, Section Director of our Personal Injury & Products Liability Section. She will have a lawyer on the team respond to you.

FIRM ACTIVITIES

Lawyer And Employee Spotlights

Liz Achtemeier

Elizabeth (Liz) Achtemeier joined Beasley Allen’s Mass Torts Section in 2012. She is currently working on the talcum powder litigation,  representing women who developed ovarian cancer due to Johnson’s Baby Powder and Shower to Shower products.

Liz previously had a career in music, teaching kindergarten through fifth-grade elementary music and chorus for Georgia’s Fulton County schools. She then shifted her focus to law, graduating cum laude from Samford University Cumberland School of Law in 2012. She says:

I was looking for a career that would be both challenging and rewarding – something that would present new and difficult problems to solve and where I could make a difference in someone’s life. To me, those two components give the job purpose.

Liz served as research editor for Vol. 42 of the Cumberland Law Review. She was also active on the Henry Upson Sims Moot Court Board, serving as the national team Assistant Justice. Liz won the 2010 Robert B. Donworth Freshman Moot Court Competition. Further, she was a semi-finalist in the 2011 Janie L. Shores Moot Court Competition and the 2011 Saad Moot Court Competition.

During law school, Liz clerked for the Middle District of Alabama Federal Defenders Program and the Alabama Attorney General’s Office. She was also an Alabama Law Institute legislative law clerk during the 2012 general legislative session.

Liz has experience handling several types of mass torts cases. She has focused on the defective drug Zofran, which has been linked to birth defects in babies born to pregnant women who took the drug for morning sickness. She has also investigated claims of proton pump inhibitor-induced kidney disease. In addition, Liz has worked on litigation involving Actos, a drug commonly prescribed to treat Type 2 diabetes that has been linked to an increased bladder cancer risk. More recently, Liz coordinated the enrollment, claims submission, and, ultimately, payment for more than 1,200 Beasley Allen Xarelto clients.

Liz says she enjoys practicing in the field of mass torts law. She adds:

My favorite part of mass torts practice is that there is always something new to learn. Our practice requires us to work with the laws of almost every state in the country and in just about every area of law – from products liability and wrongful death to probate and bankruptcy issues that come up as we litigate cases. 

Liz has worked on cases in other parts of the country that recognize the Beasley Allen Law Firm. She says:

Beasley Allen’s commitment to integrity makes us stand out. I have encountered lawyers from all over the country in my work, and all of them have a good impression of Beasley Allen. All of them trust that our word is good. That commitment to integrity is a big part of why Beasley Allen gets the kind of results we get for our clients.

Liz is an Alabama State Bar (ASB), Montgomery County Bar Association, and Alabama Association for Justice member. She was also selected to Class 15 of the ASB Leadership Forum. She has been named to the National Trial Lawyers Top 40 Under 40 list.

Liz is an exceptionally talented lawyer who does excellent work for her clients. We are fortunate to have her with us.

Katie Barlow

Katie Barlow is a Legal Secretary in the firm’s Toxic Torts Section, where she assists with the paraquat and Camp Lejeune litigations. In her role, Katie handles incoming phone calls, processes mailings, and assists with various tasks whenever needed. Katie initially joined the firm in September 2020, and after a very brief short time away, she returned in May 2021. Katie is an asset to the firm, and we are thankful to have her with us!

Katie has a beautiful ten-year-old daughter, Paisley Kate, whom she says is her twin. Paisley Kate is currently in the fourth grade and loves hunting, fishing, and going to a rodeo whenever possible! Katie and her husband, Bill, have been married for almost five years. Bill has been a mechanic for ten years and recently moved into diesel mechanic work, which Katie says he loves! The family also has a one-year-old pitbull, Axl, an eight-year-old pitbull/lab mix, Gunner, and a sweet little eight-month-old kitten, Mille. Katie says she and her family love the outdoors, spending summers on their boat, camping, and riding their four-wheeler.

When asked what her favorite thing about working at Beasley Allen is, Katie says it is the unmatched environment and people at the firm! She added, “This has been an amazing experience for me all the way around, and I have finally found my career and what I want to do for the rest of my life.”

Rodney Curtis

Rodney Curtis is an Investigator in the firm’s Personal Injury & Product Liability Section. His work includes investigating accidents involving vehicle- and industrial-related equipment. Most of an investigator’s work is focused on visiting the scene of an accident to inspect all aspects of the scene and vehicle or industrial equipment. These investigations play a pivotal role in a case because most cases involve an initial investigation before further steps are taken. 

Investigations typically include inspecting the tires, airbags, roof, seatbelts, other damaged parts, and other potential contributing factors. Investigators also photograph the scene, vehicle, and any other involved equipment. They collect and examine the evidence, police reports, and other information used to compile a report for Beasley Allen lawyers to review to determine whether sufficient evidence exists to pursue the case. Rodney joined the firm in March 2021, and he does an outstanding job! We are thankful to have him with us!

Rodney and his fiancé, Julie, have two children, Landon (30) and Carly (27).  They also have one “fur child,” a Doodle named Max. When not at work, you can find Rodney on a golf course, fishing, hanging out with family and friends, or shooting pistols or any firearm.

When asked what his favorite thing about working at Beasley Allen was, Rodney shared:

I really like how family-oriented the firm is and the morning devotionals. I also really like what the firm stands for and ensuring our clients receive the compensation they deserve!

Rodney does excellent work and is a definite asset to our firm.

Tyner Helms

Tyner Helms practices in our Consumer Fraud & Commercial Litigation Section, primarily handling whistleblower, class action, and business litigation. He joined the firm after graduating from the University of Alabama School of Law in 2017.

Tyner says he chose the legal profession for several reasons. He explains:

I became an attorney because I wanted to do something that was interesting, challenging and put me in a unique position to help people. I believe the field of law I have chosen provides all of those aspects. In almost every part of society, any individual person is at a disadvantage against a corporation if that corporation wrongs that individual or takes advantage of them in some way. The legal system, in which each party has a representative that fights for justice on the merits, is one of the only places where individuals are put on a level playing field. I consider it an honor and privilege to be that representative.

Tyner works hard to achieve positive outcomes for his clients. He says:

Obtaining a favorable result for our clients, and seeing the relief in them, is my favorite part of practicing law. Oftentimes our clients come to us in a desperate state, whether it be physically or financially. I take great joy and pride in assisting them through their legal battles to find solutions to their problems.

Tyner also helps others outside of his role as a lawyer. Last summer, he donated one of his kidneys to save a stranger’s life. Tyner’s kidney donation was one of several reasons why he earned our firm’s 2022 Chad Stewart Award.

The Chad Stewart Award is named after Beasley Allen lawyer Chad Stewart, who passed away unexpectedly in 2014 at the young age of 41. The award honors Chad’s spirit of service to God, his family, and the practice of law. Our firm presents the award each year to one of our lawyers who best exemplifies the qualities Chad demonstrated in his life and law practice.

Tyner says he appreciates that Beasley Allen helps those who need it most. He believes our firm is special, explaining:

Beasley Allen is unique because it really is more than a law firm. The people at this law firm have a special passion for service, the clients, and helping people in general. This collective passion has allowed Beasley Allen to be not just a law firm but a great force of positive impact in the community at large. Further, the people here have a strong commitment to achieving that impact without compromising their integrity or character.

Tyner is a member of the Alabama State Bar and its Young Lawyers Section. He is also a Montgomery County Bar Association board member, serving as Secretary/Treasurer of its Young Lawyers Section. Further, he is a National Trial Lawyers Association and Christian Legal Society member.

In addition to receiving the Chad Stewart Award, Tyner has been selected to the National Trial Lawyers Top 40 Under 40 Civil Plaintiff Trial Lawyers list and Midsouth Super Lawyers “Rising Star” list.

Tyner is an exceptionally talented lawyer who works hard for his clients. He is totally dedicated to his efforts to see the clients receive justice. We are blessed to have Tyner with the firm.

Rachel Josey

Rachel Josey works in the firm’s Accounting department as an Accountant I. In her position, Rachel is responsible for all administrative-related invoices and office checks, handling employee reimbursements, and assisting with other tasks as needed. She joined Beasley Allen in February 2021 and has been a dedicated, hard-working employee. We value dedication and hard work from employees like Rachel and are blessed to have her with us!

Rachel grew up in Opp, Alabama, but now calls the River Region home. She has two siblings, whom she described as brilliant, and her mother, a teacher, and father, a police officer, all of whom Rachel says she loves and adores. Rachel and her husband, Lamar, were recently married, and they enjoy being newlyweds! They have two “fur babies,” a Husky, Lucy, and a cat, Uno, which Rachel described as mischievous! Rachel’s hobbies include reading, spending time with friends and family, and binge-watching television.

Rachel shares that her favorite thing about working at Beasley Allen is the people. She added, “the people at Beasley Allen are the best. They have welcomed me since day one and continue to make an enjoyable work environment.”

SPECIAL RECOGNITIONS

AIEG Recognizes Laura Reaves Among Top U.S. Paralegals

Our firm is truly proud to announce the selection of Laura Reaves as first runner-up for the Attorneys Information Exchange Group (AIEG) Paralegal of the Year. This prestigious award recognizes only the very best of the paralegal profession in the U.S., and we cannot think of a more deserving candidate.

Laura has been with Beasley Allen since 2001 and has been a paralegal for Chris Glover since 2011. Chris is the Managing Attorney of Beasley Allen’s Atlanta office and practices in the Personal Injury & Product Liability Section.

AIEG is a national organization that facilitates sharing of information and ideas among member lawyers to better assist clients harmed by dangerous and defective products. Laura, who knew since childhood that she wanted to have a career in law, exemplifies the dedication and passion of someone who truly loves their work. According to Chris, Laura’s extra steps to help clients “are incalculable and come from a heart of truly caring.”

Last year, Laura received the Alabama Association of Paralegals, Inc. (AAPi) President’s Award in honor of her dedication to the legal profession and commitment to AAPi’s mission. In 2021, the AAPi named her Paralegal of the Year for her outstanding performance as a paralegal.

Laura is an Advanced Certified Paralegal with advanced certification in e-Discovery and Trial Practice. She received her Bachelor of Arts in international business from Huntingdon College in Montgomery, Alabama, and an Associate of Science in legal studies from Faulkner University in Montgomery.

Ali Hawthorne Named To Law360’s 2023 Consumer Protection Editorial Board

Law360 tapped Beasley Allen lawyer Alison “Ali” Hawthorne to serve on its 2023 Consumer Protection Editorial Board. The editorial advisory board provides feedback to the legal media resource on its coverage. Board members also serve as a pool of potential sources for Law360 reporters. Ali had this to say:

I am honored to have been selected, and I look forward to serving in an advisory role for such a significant resource of litigation and legislation to lawyers, judges, court staff, and government officials.

Ali focuses her practice primarily on assisting clients in complex litigation on a national level. She also helps manage the firm’s Consumer Fraud & Commercial Litigation Section, allowing her to work with all the section’s lawyers to pursue their cases successfully.

Ali also serves as the 2023 President of the Montgomery County Bar Association (MCBA) and sits on the Board of Directors of the organization’s Volunteer Lawyer Program. Ali also serves on the Alabama State Bar Leadership Selection Committee. Her previous leadership roles include serving as President of the MCBA Young Lawyers Section, Executive Board for the Alabama State Bar Leadership Forum Alumni Section and various Alabama State Bar Task Forces.

Several national organizations have recognized Ali’s work, including Super Lawyers, which named her to its “Rising Stars” list yearly since 2016. The National Trial Lawyers also named Ali a “Top 40 Under 40” lawyer, a designation extended to only a few of the most qualified lawyers in each state.

Law360 is a news source for legal news and analysis of major litigation, legislation, and transactions developments. Government agencies use Law360 as a primary resource to stay current on litigation and policy developments. Lawyers nationwide use it to keep up with what’s happening in their practice areas. It is an invaluable source of information.

Law360 does a tremendous job of making important information available in a timely and professional manner. Beasley Allen has utilized their services for a long time and highly recommends Law360.

Source: Law360

Bryan Stevenson Awarded National Humanities Medal

Equal Justice Initiative (EJI) founder and Montgomery, Alabama, lawyer Bryan Stevenson has been awarded the National Humanities Medal. President Biden presented Stevenson the award “for his moral call to redeem the soul of our nation.” Stevenson was announced as an award winner in 2021. The ceremony was postponed until last month due to the COVID-19 pandemic. 

The EJI is a Montgomery-based nonprofit organization committed to freeing wrongly convicted death row inmates. It also works to memorialize lynching victims.

The EJI opened the Legacy Museum in 2021 to provide “a comprehensive history of the United States with a focus on the legacy of slavery.” The organization established an anti-hunger program through its Anti-Poverty Initiative as an extension of its work for disenfranchised populations.

The National Endowment for the Humanities says the honor is given to “an individual or organization whose work has deepened the nation’s understanding of the human experience, broadened citizens’ engagement with history or literature, or helped preserve and expand Americans’ access to cultural resources.”

Upon presenting the award, President Biden had this to say about Stevenson:

An advocate fighting tirelessly for the poor, incarcerated, and condemned, Bryan Stevenson, follows the Book of Micah’s instructions to act justly, love mercy, and walk humbly as he chronicles the legacy of lynching and racism in America, shining a light on what has been and all that we can be as a nation.

Bryan Stevenson is a great American and is certainly deserving of this high honor.

Source: AL.com

Mobile Office Gives Back To The Community

Last fall and winter, lawyers in our Mobile, Alabama, office brought warmth and smiles to many in need across Mobile and Baldwin counties. Our lawyers participated in the 2022 Salvation Army of Coastal Alabama Angel Tree Program and a winter give-back blanket drive. Their charitable efforts also included donations to local homeless shelters and service providers.

Each year, the Salvation Army Angel Tree Program provides Christmas presents to thousands of children ages 12 and under from low-income families across Mobile and Baldwin counties. When families register children for the program, the children create wish lists for toys and clothing. The children’s lists are then hung on Christmas trees at Walmart stores and local malls throughout the area. Shoppers “adopt” the angels by purchasing gifts from the wish lists and providing them to the Salvation Army for distribution.  

Our Mobile lawyers donated gifts for seven children in need. They purchased toys the kids wanted most, including stuffed animals, Barbie dolls, basketballs, remote control cars and Creator Cams.

In addition to bringing joy to area children, our Mobile office donated 20 blankets total and $500 each to Waterfront Mission and McKemie Place. Waterfront Mission is a non-profit organization providing shelter and services to the homeless community. Services include meals, showers, job training and addiction counseling. McKemie Place is a non-profit, temporary emergency women’s shelter that offers access to multiple resources, including health care, education, job training, employment opportunities and housing assistance.

Jessi Haynes, who practices in our firm’s Consumer Fraud & Commercial Litigation Section from our Mobile office, also serves as a board member this year for Baldwin County’s Dream Center. The not-for-profit organization serves at-risk youth, providing them with education, advocacy and mentorship. The center ensures participants access essential physical, emotional and financial resources to prepare them for long-term success.

Jessi and her husband attended a benefit dinner last fall to support the Dream Center’s efforts. She is also hosting a golf tournament to raise funds for the organization this month.

Davis Vaughn Served As AAJ 2023 Student Trial Advocacy Competition Judge

Davis Vaughn, a lawyer in our firm’s Mass Torts Section, served as a judge for the American Association for Justice’s (AAJ) 2023 Student Trial Advocacy Competition (STAC). The regional tournaments were held last month.

One of the country’s most renowned student trial competitions, STAC offers AAJ law student members the chance to compete against each other for a scholarship while demonstrating their trial advocacy skills to volunteer lawyers and judges. Over 1,000 lawyers and judges volunteer their time each year to serve as competition judges and jurors.

AAJ also invites competition winners to its annual convention. AAJ conventions offer education, networking and comradery. Lawyers attend Section, Litigation Group and Caucus meetings to learn the latest developments in their practice areas.

The competition mock trial cases are civil cases typically in the products liability, personal injury or medical malpractice/negligence area. Competition judges review students’ case preparation skills, opening statements, use of facts, witness examinations and closing arguments. Law schools may enter up to two teams in the competition.

Davis, an AAJ member since 2020, says he enjoyed judging this year’s competition. He said:

STAC is a great opportunity for up-and-coming trial lawyers to get their feet wet. The competitive atmosphere encourages them to sharpen their advocacy skills while gaining invaluable experience being judged by seasoned legal professionals. It was an honor to judge such a talented group of students.

AAJ, an association of professional trial lawyers, promotes justice and fairness for injured persons, safeguards victims’ rights – particularly the right to trial by jury – and strengthens the civil justice system through education and disclosure of information critical to public health and safety.

Beasley Allen Launches Pro Bono Program For Human Trafficking Survivors

Beasley Allen’s latest pro bono project gets to the very heart of what our firm is all about — “helping those who need help the most.” Last year, Preston Moore, a lawyer in our Atlanta office, teamed with the firm’s Pro Bono Coordinator, Chad Cook, to spearhead a project to break the chains holding human trafficking survivors from moving forward in their lives. 

Under Georgia’s Survivor’s First Act, victims of human trafficking who show they are rebuilding their lives can have convictions they received as a direct result of being trafficked or that happened when they were trafficked, restricted or vacated from their records. Having certain convictions appear on background checks has created obstacles for trafficking survivors seeking employment or housing.

Preston and Chad are partnering with Street Grace, a faith-based organization working to end the sexual exploitation of minors, to help identify trafficking survivors who might qualify for post-conviction relief under the state’s Survivor’s First Act. Then Preston and Chad held a presentation to recruit Beasley Allen lawyers to work in teams of two to serve in a pro bono capacity as attorneys for these clients. Preston said:

It’s our firm’s expectation and our attorneys’ commitment that, from day one, we treat the representation of these survivors with the same vigor and attention that we would treat a multimillion-dollar plaintiff’s case.

After months of planning, the program recently welcomed its first two clients. It’s been a win-win opportunity for both clients and lawyers. Preston had this to say about the opportunity to assist clients through this project:

For the survivors we’re working with, there’s a 100% guarantee that they’ve had interactions with the legal system before. And for that reason, they are typically nervous around us — the very people they’re coming to for help. We are able to show them that justice is not only the thing that comes to get you. It can also be a part of your own rehabilitation and the thing that sets you free.

It’s great to have a chance to be a part of helping people move forward by breaking the chains of criminal conviction at their feet so they can walk forward into the future.

Sources: Georgia Justice Project and StreetGrace.org

Clinton Richardson Chairs Alabama Lawyers Association Hall Of Fame Gala

Clinton Richardson, a lawyer in our Mass Torts Section, was selected to chair the 2023 Alabama Lawyers Association (ALA) Hall of Fame Gala last month. The 2023 ALA Hall of Fame inductees honored during the Gala include Judge Martha Lynn Sherod, Judge Agnes Chappell, Judge Michael Bellamy, Jock Michael Smith (posthumously) and Walter McGowan.

Having noted the great privilege of leading this effort, Clinton had this to say about the inductees:

On March 9, we honored five titans of the legal profession for their service to the State of Alabama and to ALA. The honor that we bestowed on them, while prestigious, is part of a collective for each of them, as their respective resumes are filled with accolades that reflect high esteem in the legal community. We are very grateful to all who traveled, from near and far, to be present for the occasion and for those who generously provided sponsorships.

The Alabama Lawyers Association (formerly known as the Alabama Black Lawyers Association) was organized in 1971. The group was created because “certain segments of the population have historically been unrepresented or underrepresented in the legal arena, and recognizing that justice is a blind concept, yet sometimes unjustly administered.” Its purpose is to encourage the study of law, provide support services and networking opportunities for members to enhance their effectiveness as legal counsel, and protect all citizens’ civil and political rights.

Beasley Allen lawyers have been instrumental in helping lead ALA, with four past Presidents (LaBarron Boone, Kendall Dunson, Navan Ward, and Leon Hampton) and a current Vice President (Aigner Kolom).

National Bar Association President Lonita Baker was the keynote speaker for the Gala and offered a penetrating account of the present state of social justice. She extended a call to action to continue to further the aim of ensuring equal economic, political, and social rights for all. Ms. Baker gained national attention for her representation of the family of Breonna Taylor in 2020. She secured a groundbreaking settlement with the City of Louisville, which included terms of police reform and one of the most significant financial awards for an individual civil rights case to date.

Clinton said the night was a celebration of ALA’s past, present, and future and an opportunity to honor those who have made and continue to make a difference and encourage others to do the same. He is proud to be a member of ALA and of the honor of chairing the 2023 Gala.

Clinton works on the Social Media multidistrict litigation (MDL) and the JUUL MDL and assists with investigating the viability of other prospective actions. Before joining Beasley Allen, he worked for other law firms, litigating matters in employment discrimination, federal criminal defense, and 42 USC § 1983 litigation. He also worked for the United States Attorney’s Office in the Northern District of Alabama, where he prosecuted False Claims Act cases, defended against claims premised on the Federal Torts Claims Act and responded to numerous habeas petitions. Clinton is also a member of the Alabama State Bar, Birmingham Bar Association and Magic City Bar Association.

Sources: Alabama Lawyers Association and National Bar Association

FAVORITE BIBLE VERSES

Several lawyers and staff employees who are being featured this month share their favorite Bible verses in this issue.

Tyner Helms

Tyner says one of his favorite Bible verses is one his dad reminded him of frequently when he was growing up. He says:

This is a verse my dad used to quote to me as a kid when I had a big game or test coming up. Now, as an adult, I have felt a personal conviction from God to make it my mission statement as a Christian.

Have I not commanded you? Be strong and courageous. Do not be afraid; do not be discouraged, for the Lord your God will be with you wherever you go.

Joshua 1:9

Tyner takes comfort in Romans chapter 8. He says:

I can’t pick out one single verse that is my favorite, but this is my favorite chapter in the Bible. I believe it is a beautiful illustration of God’s grace and the power of being guided by the Holy Spirit as you live your life.

Rodney Curtis

Rodney Curtis says Psalms 23:1-6 is one of his favorite passages of scripture. He says:

To me, these verses are an acknowledgment and trust that the Lord is our shepherd and is guiding us into something that will work for our best. God’s presence is the great power, the great comfort, the great source of peace and rest. He is my safe haven. He does not leave me, and He is walking through this life with me in spite of my shortcomings all day, every day.

Rodney explains the verses this way:

• Possession: My shepherd (v.1)
• Position: He maketh me to lie down … beside the still waters (v.2)
• Promise: He restoreth my soul (v.3)
• Progress: Yea, though I walk through the valley (v.4)
• Provision: Thou preparest a table before me (v.5)
• Prospect: Goodness and mercy (v.6)

News From The Nation’s Capital

Freshman Senator Gets Good Committee Assignments

Alabama’s freshman senator, Katie Britt, has hit the ground running, having replaced my longtime friend Richard Shelby upon his retirement last year. Sen. Britt was appointed to three very important committees in the U.S. Senate, all of which Sen. Shelby served on before his retirement. Those appointments are highly important and most significant.

Katie Britt understands the inner working of the Senate. She recognizes the important role of each committee in conducting the federal government’s business. She knows how the committees work. The Senator stated:

I have always said that my mission is to ensure Alabama has the best possible seat at the table, and these committees strongly position me to fight effectively for our great state’s people, interests, and values during my first two years in the United States Senate. I want to be the kind of leader who works to identify and implement tangible, meaningful solutions to the pressing challenges facing Alabama and America. I look forward to championing priorities that help preserve the American Dream, build a bright future, and grow opportunities for our children and our children’s children.

Senate Committee on Appropriations

The Senate Appropriations Committee is the largest committee in the U.S. Senate, consisting of 29 members in the 118th Congress. It’s highly significant that Sen. Britt is the only freshman appointed to the committee. The committee writes the legislation that allocates federal funds to numerous government agencies, departments, and organizations on an annual basis. Its 12 subcommittees draft legislation allocating funds to government agencies within their jurisdiction. These subcommittees also review the President’s budget request, hear testimony from government officials and other witnesses, and draft the spending plans for the coming fiscal year. The Senate Appropriations Committee is also responsible for supplemental spending bills, sometimes needed in the middle of a fiscal year to compensate for emergency expenses.

Sen. Britt serves as the Ranking Member of the Homeland Security Subcommittee and is a member of the following subcommittees Commerce, Justice, Science, and Related Agencies; Labor, Health and Human Services, Education, and Related Agencies; Energy and Water Development; and Interior, Environment, and Related Agencies. These are all very important, and it’s most significant that a freshman Senator is appointed to these committees.

Sen. Britt recognizes how important the Appropriations Committee is to Alabama. She had this to say:

There is no doubt that Alabama having a seat on the Appropriations Committee is critical for our state. One of my top priorities is ensuring we maintain a strong national defense and that our men and women in uniform are the best equipped, resourced, and trained in the world, so that American families remain safe and free.

Senate Committee on Banking, Housing, and Urban Development

The U.S. Senate’s Committee on Banking, Housing and Urban Affairs has jurisdiction over legislation and legislative matters involving banking, financial markets, insurance, nursing home construction, housing, urban development and mass transit. It is also charged with reviewing and assessing issues relating to international economic policy regarding U.S. money, credit, and financial institutions; economic growth, urban affairs, and credit. Sen. Britt serves on three subcommittees: National Security and International Trade and Finance; Housing, Transportation, and Community Development; and Financial Institutions and Consumer Protection.

Sen. Britt observed:

I’m eager to be an outspoken advocate for commonsense consumer protections and fostering a financial environment that promotes freedom, opportunity, and prosperity for hardworking families, small businesses, and retirees across our state and nation.

Senate Committee on Rules and Administration

The U.S. Senate Committee on Rules and Administration is tasked with developing the structure of rules for how the Senate will conduct business. The Senate is an important institution to Sen. Britt. She recognizes how being on this committee can help her state. The Senator says she looks forward to championing “the Constitution, the Rule of Law, and the Senate’s cherished tradition of robust debate and civil discourse on the Rules Committee.”

Nobody can replace Richard Shelby. Following him in the Senate would be a tremendous challenge for anybody. However, I am confident that Katie Britt will meet the challenge. I predict that the Enterprise native will be a great senator in her own right. Alabama is blessed to have Katie Britt in the U.S. Senate!

Sources: Katie Britt and U.S. Senate

CLOSING OBSERVATIONS

The Aduhelm Investigation: Part 3

Below is the final part of the 3-part series regarding the FDA’s review and approval of Aduhelm, a controversial Alzheimer’s drug brought to market by Biogen, Inc. 

On June 7, 2021, the FDA granted accelerated approval to Biogen, Inc. for its Alzheimer’s drug, Aduhelm. After launch, the research and medical communities immediately responded with furor, concern, and confusion because of concerns about the drug’s efficacy and safety. After an 18-month investigation conducted jointly by the Committees on Oversight and Reform and Energy and Commerce (the Committees), a report was published in December 2022 to provide policymakers, relevant agencies, and the public with an understanding of Aduhelm’s FDA approval process.

According to the report, the “FDA’s review and approval of Aduhelm consisted of atypical procedures and deviated from the agency’s own guidance.” Additionally, the report stated that the Committees’ findings “raise serious concerns about FDA’s lapses in protocol.” Documents obtained by the Committees show that FDA staff and Biogen engaged in at least 115 meetings, calls, and substantive email exchanges over 12 months beginning in July 2019. These exchanges included at least 40 FDA-Biogen “working group” meetings.  Of the more than 40 working group meetings between agency staff and Biogen that were memorialized, not all were properly documented according to internal FDA procedures. The Committees identified an additional 66 calls and substantive email exchanges among the subgroups of the working group that were not memorialized.

In November 2020, the FDA concerned the Peripheral and Central Nervous System (PCNS) Advisory Committee to review the clinical trial data and discuss the evidence supporting the Aduhelm application. Advisory committees provide the FDA with independent opinions from outside experts on the safety, efficacy, and appropriate use of products and drugs, and the FDA generally follows an advisory committee’s recommendation.

Documents obtained by the Committees show that the FDA review team and Biogen representatives worked closely for several months before the November 2020 PCNS Advisory Committee meeting to prepare the text for Biogen’s sections of the briefing document. In addition, the FDA provided Biogen with draft text of the FDA’s own responses. This approach afforded Biogen advanced insight into the FDA’s responses and direct guidance from the agency in drafting the company’s own sections. For example, in an exchange of the draft briefing document in October 2020, the FDA asked Biogen to move a paragraph previously drafted by the agency for its own response section of the document into the preceding Biogen section – a change reflected when the document was finalized.

Additional documents and information obtained by the Committees show that, for nine months, the FDA initially considered Aduhelm under the traditional approval pathway used for most drugs. However, after only three weeks following negative internal FDA feedback about Aduhelm’s lack of demonstrated clinical benefit necessary for traditional approval, the agency abruptly changed course. It approved the accelerated approval pathway – allowing surrogate clinical endpoints to demonstrate effectiveness.

Within weeks of the FDA’s approval of Aduhelm, three members of the PCNS Advisory Committee resigned publicly in protest, with one writing that the approval of Aduhelm was “probably the worst drug approval decision in recent U.S. history.” In the following months, several major medical centers, insurance companies, and the U.S. Department of Veterans Affairs decided not to add Aduhelm to their formularies.

By the end of 2021, Aduhelm, the drug that was supposed to double Biogen’s revenue, had brought in just $3 million. In early 2022, Biogen effectively ceased marketing Aduhelm, declaring defeat on the pioneering drug that was meant to transform its business.

Sources:  U.S. House.  Committee on Oversight and Reform and Committee on Energy and Commerce. Seeking Maximum Profits, Biogen Set An “Unjustifiably High Price” for Alzheimer’s Treatment, Investigation Finds, STAT (Dec. 29, 2022), “Rife with Irregularities”: Congressional Investigation Reveals FDA’s Approval of Aduhelm Marked by Secret Discussions, Breaches of Protocol, STAT (Dec. 29, 2022)

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

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.

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

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

Bryan Stevenson, 2019

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

PARTING WORDS

There were at least 57 people killed in 38 mass shootings in the U.S. last month, with another 133 injured. So far, there have been 130 mass shootings in our country during the first three months of 2023. Almost all of them involved the use of an assault rifle. The locations where a shooter killed innocent men, women and children include schools, churches, nightclubs, concerts, grocery stores, and streets. It’s being asked by folks all over the country, when will these mass murders be stopped? What more will it take?

Last month, three nine-year-old children and three adults were shot and killed at a school in Nashville, Tennessee. This was another unimaginable tragedy brought on by the gun violence epidemic. Gun violence has become the leading cause of death for children and teens, and since Columbine, there have been well over 300 other mass shootings at schools.

Too many politicians are choosing gun lobby money over the lives of the people they represent. That’s happening over and over again. The American people must come together and demand action to end gun violence in America before more innocent lives are lost.

The classic response by many public officials after a mass shooting is “our thoughts and prayers” are with the victims’ families. While prayers are needed, it’s time for action, not just words. Again, what more will it take? My prayer is for sensible gun reform legislation to be passed in Congress.