Beasley Allen Montgomery, Alabama Office

The Jere Beasley Report December 2021

CAPITOL OBSERVATIONS

The Judge Frank M. Johnson, Jr. Institute

Judge Frank M. Johnson, Jr. served as a district court judge in the U.S. Court for the Middle District of Alabama from 1955 to 1979. He was then a judge at the next level on the U.S. Fifth and later Eleventh Circuit Court of Appeals from 1979 to 1999. Judge Johnson took senior status in 1991. This judge’s decisions dismantled Jim Crow and were instrumental in changing the segregationist practices of the South.

However, Judge Johnson’s influence was by no means confined to the Southern States. Judge Johnson’s decisions on voting rights, equal opportunity employment, affirmative action, humane conditions for prison inmates, and the rights of mental health patients to adequate care affected the nation and the world. Among his many honors, Judge Johnson was awarded the Presidential Medal of Freedom in 1995.

The Frank M. Johnson, Jr. Institute was founded in 2019. The Institute sponsors programs and events that showcase the importance of the U.S. Constitution, the independent judiciary it created, and its impact on the lives of all Americans. The Institute is a non-political, non-advocacy organization, and programming is educational in nature. The Institute supports the use of the Frank M. Johnson, Jr. Courthouse, both online and through the physical courthouse, to tell the story of the U.S. Constitution and the judicial system, using to the extent practicable stories that are embodied in the cases decided in the courthouse. Through its programs and events, the Institute works to foster and promote civil dialogue and exchange of knowledge in a respectful and open manner about Constitutional issues, particularly as they affect the judicial branch of government.

Judge Frank M. Johnson, Jr. will go down in history as a strong and courageous man who was an uncompromising defender of the rule of law and civil liberties. He truly was a great man who did great things and was a real champion for liberty, justice and the pursuit of happiness for all people.

Thomas Rains serves as Executive Director of the Frank M. Johnson, Jr. Institute. If you want to know more about the Institute, you can go to www.thejohnsoninstitute.org. You can also email Thomas at [email protected], or you can write him at P.O. Box 100, Montgomery, AL 36101.

Source: The Judge Frank M. Johnson, Jr. Institute

BIG TRUCK ACCIDENT LITIGATION

$6 Million Settlement In Beasley Allen Case Against Trucking Company

Lawyers in our Atlanta office have settled a personal injury case involving a trucking company for $6 million. Late one night, while driving through rural Georgia, our client ran out of gas. (Because of the nature of her injuries, we won’t mention her name. Instead, we will refer to her as “plaintiff” hereafter.) The plaintiff was able to move her vehicle entirely off the roadway and onto the shoulder of the interstate.

While a roadside technician was assisting the plaintiff, a tractor-trailer approaching the scene left the roadway at a high rate of speed and impacted our client’s vehicle.  The plaintiff was still seated in the driver’s seat when the impact occurred. She was ejected from her vehicle about 30 feet from the location of the initial impact. The plaintiff suffered serious bodily injuries.

The plaintiff saw the 18-wheeler drift out of its lane as it headed toward her, resulting in the impact. This contributed to the emotional trauma she suffered as a result of this crash. The truck driver was employed by the trucking company, a common carrier.

Pretrial discovery revealed that the truck driver fell asleep at the wheel of his vehicle, ultimately causing the crash. However, the driver should never have been on the job. It was revealed during discovery that the truck driver previously had numerous on-the-job accidents. It was also learned that other negative aspects of his driving record should have resulted in his dismissal from his job with the company.

The plaintiff’s bodily injuries were severe, but her principal injury was a mild traumatic brain injury that led to short-term memory loss issues and diminished daily functions. Unfortunately, she will experience residual effects from these injuries for the remainder of her life. The plaintiff experiences ongoing dizzy spells caused by Benign Paroxysmal Positional Vertigo, ongoing diminished memory and executive functions. She still has ongoing pain in her left shoulder and right knee. She is still being treated for the injuries she received in this incident.

The plaintiff’s brain injury has impaired her life in various significant ways. She is unable to work, normally function in life, and enjoy her life at pre-injury levels. This was confirmed by her physicians, friends, and co-workers. All medical professionals, including defense experts in the case, agreed that certain symptoms of the plaintiff’s brain injuries are permanent.

The claims against the truck driver and the trucking company included negligence and wantonness. The claims against the trucking company also included negligent hiring, training, and supervision.  The plaintiff was represented by Chris Glover and Alyssa Baskam, lawyers in our firm’s Atlanta office and they did an outstanding job for our client.

Parker Miller Settles Trucking Case For $4 Million

Parker Miller, a lawyer in our Atlanta office, recently settled a difficult trucking case for $4 million. The case involved a horrific crash in Florida where a big truck crossed the centerline, went over into oncoming traffic and crashed into a van. Our client’s relative, who was in the van, was killed on impact. While the case seemed straightforward initially, it would eventually prove complicated. The truck driver allegedly suffered a sudden health issue that caused him to lose control of the truck.

The case also involved various coverage issues that were not apparent on the front end of the investigation. Parker says:

This was such a tragic case, as most trucking cases almost always are. It is rare for there to be a happy ending in any truck wreck case because of how violent and unforgiving they are, and this case was a perfect example of that. It was an honor to represent this family.

One of the first lawyers to join the Beasley Allen office in Atlanta, Parker focuses much of his practice on major truck wreck, premises liability, and negligent security cases.  If you have any questions about trucking or negligent security cases, contact Parker at 800-898-2034 or by email at [email protected].

$730 Million Verdict In Truck Crash Wrongful Death Lawsuit

A Texas jury has awarded a total of $730 million in a wrongful death lawsuit. In 2016, Toni Combest was killed in a car crash with an overloaded tractor-trailer hauling a propeller for a U.S. Navy submarine. In a two-part verdict, the jury awarded the plaintiffs $480 million in compensatory damages and awarded another $250 million in punitive damages. It’s believed this is the largest single fatality case in the history of the United States.Three companies that made up the convoy of vehicles carrying the 197,000-pound U.S. Navy propeller were found by the jury to be 100% responsible for the crash. Most semi-trucks in the U.S. are limited to 80,000 pounds gross weight.The verdict was against the only remaining defendant in the case, Carla A. Allred, who was doing business as 2A Pilot Cars and was the lead vehicle in the convoy. Other defendants included Jacksonville, Florida-based Landstar Ranger Inc., one of the largest logistics companies in the country, and S&M Pilot Service, the employer of the escort driver. Both companies settled claims with the plaintiffs a week before the trial for $50 million and $1 million, respectively. The jury found Landstar 20% liable and S&M 30% liable, according to the verdict.

Landstar attempted to transport the 16.5-foot-wide propeller — nearly twice the width of a typical semitrailer — with Allred driving ahead of the oversize-cargo truck acting as the “pilot driver” and the S&M Pilot employee following behind. As a pilot driver, Allred is supposed to be between a half-mile and a mile ahead of the wide-load truck to warn of obstacles. And the truck is supposed to give the right of way oncoming motorists.

The load was hauled under Landstar Ranger’s federal interstate operating authority. The truck and trailing equipment were leased to Landstar Ranger by the truck’s owner-operator under the federal leasing regulations.

The plaintiffs were represented by Brent Goudarzi of Goudarzi & Young LLP and Nelson Roach of Roach Langston Bruno LLP. The case was Ramsey et al. v. Landstar Ranger Inc. et al. (case number 40068) in Titus County Texas District Court, 76th/276th Judicial District.

Sources: KETK.com and Law360.com

The Beasley Allen Truck Accident Litigation Team

Beasley Allen has been successfully handling major big truck litigation for years. The cases are handled by lawyers in the firm’s Personal Injury & Products Liability Section, headed by Cole Portis. Many truck cases involve complicated products liability issues that are quite often overlooked and missed by lawyers who don’t regularly handle product liability cases. Most of the cases involve speed, driver inattention, driver fatigue and other driver issues. But there will be accidents where a product liability issue will also be involved in causing the accident.

Greg Allen, the Lead Products Liability Lawyer for the firm, has handled a number of the major truck cases involving a defective product issue. We have a team of experienced lawyers making up the Trucking Litigation Team. In addition to Cole and Greg, lawyers on the team are Chris Glover, Evan Allen, Mike Crow, Parker Miller, LaBarron Boone, Ben Baker, Warner Hornsby and Wyatt Montgomery.

If you have any questions or want to discuss a case, contact Sloan Downes, Section Director, at 800-898-2034 or by email at [email protected]. She will have the appropriate lawyer contact you.

THE TALC LITIGATION

Johnson & Johnson Trying To Use Texas Two-Step To Avoid Liability

Johnson & Johnson (J&J) is using a maneuver dubbed the Texas two-step in an attempt to shield the corporation from potentially billions of dollars in liability to thousands of plaintiffs harmed by J&J talcum powder products. The number of steps to perform the maneuver, which ultimately resulted in the bankruptcy filing by J&J subsidiary LTL Management LLC (LTL) on Oct. 14, is astounding.

The corporations began with J&J, the parent company, and it’s subsidiary Johnson & Johnson Consumer, Inc. (Old JJCI), based in New Jersey.  Early in October 2021, Old JJCI formed an entity called Royalty in North Carolina. Old JJCI then converted into a Texas limited liability company in Texas, enabling it to utilize Texas’ divisive and highly questionable merger statute as a vehicle by which to split into two successor entities and assign assets and liabilities to those entities.

Old JJCI split into LTL, the debtor in bankruptcy, which received all liabilities and intangible assets associated with its talcum powder operations. Simultaneously, Old JJCI organized another entity that immediately merged into a New Jersey corporation called Johnson & Johnson Consumer, Inc. (New JJCI). Old JJCI’s remaining assets and liabilities were assigned.

The very same day, on Oct. 12, LTL re-domiciled in North Carolina and was then given ownership of Royalty. Two days later, on Oct. 14, LTL filed for bankruptcy in North Carolina under Chapter 11 of Title 11 of the United States Code. Through this maneuvering, J&J, which did not file for bankruptcy, has attempted to reap the benefits of bankruptcy, using LTL (now based in New Jersey) to divert the debts and limit its legal liability while reforming a New JJCI.

Additionally, J&J is providing $2 billion to LTL to fund what the bankruptcy court determines is owed for the 38,000-plus victims of ovarian cancer. Verdicts and settlements have already resulted in a payout of approximately $3.5 billion from J&J and Old JJCI. Considering the average cost of treatment for women affected with ovarian cancer is over $500 thousand and the high mortality rate associated with the disease, this bankruptcy is an attempt by J&J to shirk those legal liabilities cheaply. Consider J&J reported annual revenue of $82 billion last year, and you will immediately realize what this wealthy company has done doesn’t meet “the smell test.”

Although J&J utilized the Texas divisive merger statute and ultimately LTL filed bankruptcy in North Carolina, its domicile and operational headquarters are in New Jersey.  J&J had hoped to keep the bankruptcy in North Carolina because of favorable legal precedents there.

On Nov. 10, the U.S. Senate Judiciary Committee sent a letter to J&J urging the company to cease the bankruptcy maneuver and “reverse course so that tens of thousands of consumers can have their fair day in court.” The same day, U.S. Bankruptcy Judge Craig Whitley ordered the bankruptcy case to be moved to federal court in New Jersey, where J&J (and now New JJCI and LTL) are domiciled and where the Plaintiffs’ Steering Committee represents over 35,000 plaintiffs in multidistrict litigation. Judge Watley also ordered a limited, 60-day stay of all talc proceedings to give his successor time to “get up to speed” on the case. More will be reported on the bankruptcy proceedings next month.

Andy Birchfield, who is actively involved in the litigation, had this to say about both the delay in the cases and the company:

I think that we can show that this was a filing that had the result of hindering and delaying women who are victims of ovarian cancer and mesothelioma from getting their day in court. It’s hard to see a legitimate reorganization or restructuring purpose for a company that was just days old.

The talc claimants should prevail on their motion to dismiss. If so, the bankruptcy case will end. Litigation across the country would then resume against J&J and the debtor. But Andy points out that the effects of the delays brought by the bankruptcy filing would still linger for some time as victims whose trials were on the calendar would have to wait for new trial dates.

The parties won’t have to wait long to learn their fate as the motion to extend the preliminary injunction is tentatively set to be heard in January, while the forthcoming motion to dismiss would be heard in February.

The legal machinations continued on Nov. 11 with an announcement by J&J that it plans to spin off its consumer health division, responsible for talcum powder products, within a timeframe of 18 to 24 months.  The company plans to move the division into a publicly-traded company.

If you need more information on any aspect of the above, contact Jennifer Emmel, a lawyer in our Mass Torts Section, at 800-898-2034 or email at [email protected].

Sources: NPR.org and Reuters

Unsealed Emails Reveal J&J Influence Over The FDA

Every time it seems that Johnson & Johnson (J&J) couldn’t do anything more to tarnish its image with the American people, something else is discovered in the ongoing litigation. Bloomberg has now reported that emails unsealed in a Mississippi lawsuit brought by that state’s Attorney General reveal that J&J played a major role in crafting an industry report relied on by the FDA to decline labeling talcum powder with a cancer warning.

In a series of emails in 2008, Craig Bernard, a Rio Tinto regulatory affairs manager, discussed teaming up with J&J to respond to the warnings request. The emails reveal that J&J actually selected the scientists hired by the trade association, Personal Care Products Council. The 2009 report by the scientists to the FDA purportedly assessed the risks related to talc-based products and included changes suggested by J&J. This was clearly an abuse and an indication of how J&J operates.

Public health advocates have been pressing the FDA to mandate cancer warnings on talc products since at least 1983. Samuel Epstein, head of the Cancer Prevention Coalition, filed petitions in 1994 and 2008. In response to the 2008 request for a warning, J&J and its supplier Rio Tinto (later Imerys SA) joined forces and chose scientists Joshua Muscat and Michael Huncharek to develop their response to the petition.

J&J’s Kathleen Wille had proposed spending $50,000 to fund “external experts to provide scientific arguments against the petition with the recommendation of rejecting it,” Bernard said in his emails… It was Wille who suggested the companies submit the scientists’ final report through the lobbying group rather than in their own names, the emails show. While the companies would provide “much of the work behind the scenes,” using the lobbying group would allow them to “indirectly provide comments to the FDA” about Epstein’s requests, she said in the emails.

J&J also requested that an executive summary be included in the final draft, which stated, “we conclude that the weak statistical associations cited in the petition do not support a causal relationship.” In 2014, the FDA denied the petition for a cancer warning, relying on the J&J-backed report.

J&J has since pulled talcum powder from the market in the United States and Canada. More recently, J&J has used a bankruptcy court in an attempt to avoid liability after decades of corporate wrongdoing, knowingly selling a cancer-causing product to millions of innocent people who trusted J&J causing tremendous suffering, misery and deaths is legally and morally wrong and deserves severe punishment.

If you need more information, contact Kelli Alfreds, a lawyer in our Mass Torts Section, at 800-898-2034 or by email at [email protected].

Source: Law360.com and Bloomberg

Beasley Allen Talc Litigation Team

Beasley Allen lawyers Ted Meadows and Leigh O’Dell head up the Beasley Allen Talc Litigation Team. The team handles claims of ovarian cancer linked to talcum powder use for feminine hygiene. Currently, several members of the team are focused on the bankruptcy move by J&J.

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

The following Beasley Allen lawyers are members of the Talc Litigation Team: Leigh O’Dell ( [email protected]), Ted Meadows ( [email protected]), Kelli Alfreds ( [email protected]), Ryan Beattie ( [email protected]), Beau Darley ( [email protected]), David Dearing [email protected]), Liz Eiland ( [email protected]), Jennifer Emmel ( [email protected]), Jenna Fulk ( [email protected]), Lauren James ( [email protected]), James Lampkin ( [email protected]), Caty O’Quinn ( [email protected]),  Cristina Rodriguez ( [email protected]), Brittany Scott ( [email protected]), Charlie Stern ( [email protected]), Will Sutton [email protected]), Matt Teague ( [email protected]) and Margaret Thompson ( [email protected]).

OPIOID LITIGATION

Ohio Jury Finds Pharmacy Giants Fueled Opioid Crisis

On Nov. 23, CVS, Walgreens and Walmart were found by a jury to be liable for contributing to the opioid abuse epidemic in two Ohio counties. The trial was the first involving pharmacies, as opposed to drug manufacturers and distributors. It was also the first to be decided by a jury and was the first trial in the MDL to produce a verdict.

The countries, Lake and Trumbull, accused CVS, Walgreens and Walmart of selling massive amounts of addictive painkillers with insufficient oversight for many years, exacerbating societal woes including fatal overdoses, crime and orphaned children. After the six-week trial, the jury found that sales of prescription narcotics by the pharmacy chains contributed to a “public nuisance” in the form of the opioid crisis. This ruling validates the core legal theory undergirding thousands of lawsuits across the country.

The jury was only tasked with determining whether the pharmacies are legally liable. U.S. District Judge Dan Aaron Polster, who presided over the trial and supervises the multidistrict litigation (MDL), will later determine the remedy and assess damages, which could reach into the billions of dollars for addiction treatment and prevention. The trial was a bellwether in the MDL, and several additional bellwethers involving national and regional pharmacies are planned across the country.

The pharmacies have been accused of shipping opioid orders through their distribution channels despite obvious signs that the orders exceeded legitimate medical needs. Lake and Trumbull blamed those practices for flooding their communities with opioids. Greater availability has meant more people hooked and more people ultimately dead — a public nuisance with long-term effects.

The counties, in this case, are represented by The Lanier Law Firm, Spangenberg Shibley & Liber LLP, Plevin & Gallucci Co., Napoli Shkolnik PLLC, Simmons Hanly Conroy LLC, Motley Rice LLC and Farrell & Fuller LLC.

The cases are County of Lake v. Purdue Pharma LP et al. (case number 1:18-op-45032) County of Trumbull v. Purdue Pharma LP et al. (case number 1:18-op-45079) and In re: National Prescription Opiate Litigation (case number 1:17-md-02804) in the U.S. District Court for the Northern District of Ohio.

Source: Law360.com

Oklahoma Supreme Court Overturns $465 Million Opioid Verdict

On Nov. 9, the Oklahoma Supreme Court overturned the $465 million opioid verdict against Johnson & Johnson (J&J), finding that the award was based on an improper expansion of Oklahoma state law. In the court’s decision, the high court found that the award in 2019 could not stand because it relied on an inappropriate understanding of “public nuisance” law in Oklahoma. Justice James R. Winchester wrote for the majority:

This court defers the policy-making to the legislative and executive branches and rejects the unprecedented expansion of public nuisance law. The district court erred in finding J&J’s conduct created a public nuisance.

In a dissent, Justice James E. Edmondson wrote that “the attorney general’s basic theory of the case is tenable.” The justice added, however, that the award was based on conduct “extraneous to the trial defendants’ conduct in Oklahoma,” adding that the case should be sent back to the lower court “to recalculate damages based upon J&J’s share of the market in the years it sold its opioids in Oklahoma with its deceptive marketing scheme.”

Before the trial in 2019, Oklahoma reached a $270 million settlement with Purdue Pharma LP and an $85 million settlement with Teva Pharmaceuticals. J&J went to trial as the sole defendant in the Oklahoma case.

Oklahoma Attorney General John O’Connor said in a statement that he was “disappointed in the decision” and that his staff “will be exploring options.” The Attorney General added that his office is “still pursuing our other pending claims against opioid distributors who have flooded our communities with these highly addictive drugs for decades.”

Earlier this year, J&J proposed a $5 billion nationwide settlement of opioid litigation. The settlement has support, but Oklahoma and a number of other states haven’t signed onto the settlement. The Oklahoma result should not affect the national settlement. The success of litigation by other states and local government entities will depend on the law in each state. The public nuisance law in Oklahoma is restrictive and limited to application.

Oklahoma has been represented by the state’s attorney general’s office, along with  Whitten Burrage, Nix Patterson LLP and Kellogg Hansen Todd Figel & Frederick PLLC.

The cases are Oklahoma ex rel. Hunter v. Johnson & Johnson et al. (case number 118474) in the Supreme Court of the State of Oklahoma, and Oklahoma ex rel. Hunter v. Purdue Pharma LP et al. (case number CJ-2017-816) in the District Court of the State of Oklahoma, County of Cleveland.

Source: Law360.com

The Beasley Allen Opioid Litigation Team

Beasley Allen’s Opioid Litigation Team continues to work on existing cases. There is a tremendous amount of activity in this litigation.

As previously stated, Beasley Allen lawyers, in addition to the State of Alabama, also represent the State of Georgia, numerous local governments and other entities. We also handle individual claims on behalf of victims in this litigation.

Our Opioid Litigation Team includes Rhon Jones ( Rhon.J[email protected]), Parker Miller ( [email protected]), Ken Wilson ( [email protected]), David Diab ( [email protected]), Rick Stratton ( [email protected]), Will Sutton ( [email protected]), Jeff Price ( [email protected]), Gavin King ( [email protected]), Tucker Osborne ( [email protected]), Elliott Bienenfeld ( [email protected]) and Matt Griffith ( [email protected]).

If you need more information on any phase of the opioid litigation, contact one of the lawyers on the team listed above at 800-898-2034 or by email.

THE WHISTLEBLOWER LITIGATION

High Court Lets $114 Million FCA Medicare Fraud Judgment Stand

The U.S. Supreme Court has refused to upset a $114 million judgment against a healthcare marketing consultant and two others in a False Claims Act case. The high court denied the consultant’s request to reverse the ruling by the Fourth Circuit upholding the judgment.

Floyd Dent III, a partial owner of BlueWave Healthcare Consultants Inc., had urged the court to reverse the Fourth Circuit ruling affirming the multimillion-dollar judgment against him, fellow BlueWave Healthcare Consultants owner Robert Johnson and Health Diagnostics Laboratory ex-CEO Latonya Mallory.

The Supreme Court categorically refused to review the judgment issued after the trio were found to have filed thousands of false claims for reimbursement with Medicare and a health care program for military members.

The high court’s decision leaves in place the January 2018 jury verdict, which found Mallory, Dent and Johnson liable for $16.6 million in false Medicare claims linked to Health Diagnostics Laboratory (HDL) and $468,000 for false claims linked to another medical test lab, Singulex Inc.

The three defendants and their companies had been accused by whistleblowers of paying kickbacks to doctors in exchange for referrals and ordering tests billed to Medicare and military health care program Tricare. The federal government joined the suit in 2015. HDL agreed to a $47 million settlement releasing it from FCA claims in April 2015. The jury found in favor of BlueWave.

After the verdict, a South Carolina federal judge entered a $111,109,655 judgment against Dent, Johnson and Mallory. The judge awarded an additional $3,039,006 against Dent and Johnson by awarding triple damages, and statutory penalties, minus “set-off” amounts deducted because of parallel settlements with the companies involved. The judgment was affirmed by the Fourth Circuit in February.

The federal government is represented by the U.S. Department of Justice’s Office of the Solicitor General. The case is Floyd Calhoun Dent III v. United States et al. (case number 21-445) before the U.S. Supreme Court.

Source: Law360.com

Whistleblower Gets $24 Million In Hyundai-Kia Engine Recall Case

The National Highway Traffic Safety Administration (NHTSA) has paid more than $24 million to a whistleblower who reported that Hyundai and Kia moved too slowly to recall over 1 million vehicles with engines that could freeze up or catch fire. According to NHTSA, the award is the first the agency has paid to a whistleblower. It’s also the maximum percentage allowed by law of penalties paid by the two Korean automakers.

In November 2020, NHTSA announced that Hyundai and Kia would pay $137 million in fines and for safety improvements in an agreement to fix the engine safety problems. That resolved a three-year government investigation into the behavior by the companies involving recalls of multiple models since the 2011 model year.

Hyundai had to pay $54 million in civil penalties and invest $40 million to improve safety operations. Kia, affiliated with Hyundai, had to pay $27 million in penalties and invest $16 million in safety performance measures. The penalties from both automakers totaled $81 million.

NHTSA’s statement said the automakers “inaccurately reported crucial information to NHTSA about serious defects in the engines.” By law, the agency can award 30% of collected penalties to a whistleblower who gives significant information resulting in action that brings penalties of over $1 million.

NHTSA opened its investigation in 2017 after Hyundai recalled about 470,000 vehicles in September 2015 because debris from manufacturing could restrict oil flow to connecting rod bearings. That could make the bearings wear out and fail, potentially causing the four-cylinder “Theta II” engines to stall or catch fire. The repair was an expensive engine block replacement.

Documents obtained in the investigation revealed that Hyundai limited the recall to engines made before April 2012. The automaker said it solved the manufacturing problem after that. In addition, Kia didn’t recall its cars and SUVs with the same 2.4-liter and 2-liter “Theta II” engines, contending they were made on a different assembly line at a plant in Alabama. But 18 months after the 2015 recall, both automakers announced recalls of 1.2 million more vehicles for the same problem, including models the automakers initially said weren’t affected.

Sources: Associated Press and Law360.com

Sanofi And Whistleblower Settle Cancer Drug FCA Lawsuit

Drugmaker Sanofi U.S. Services Inc. and Yoash Gohil, a whistleblower, have settled a False Claims Act lawsuit that has been ongoing for 19 years. It was alleged that the drugmaker misleadingly promoted off-label uses for its cancer therapy drug. The parties reached a confidential settlement less than three months before the case was set for trial. On Nov. 7, Sanofi and the whistleblower, a former sales representative, notified U.S. District Judge Anita B. Brody in the Eastern District of Pennsylvania that the case was settled and that the whistleblower had agreed to voluntarily dismiss his remaining FCA claims against the drugmaker, as well as his claims for attorney fees and costs.

The case’s settlement and voluntary dismissal mark an end to a qui tam action that Gohil filed in 2002, accusing Sanofi of targeting doctors and paying them to push Taxotere for off-label uses and prescribe Taxotere over rival cancer drugs, which were cheaper and had more potential uses approved by the U.S. Food and Drug Administration. Sanofi allegedly spent millions of dollars to groom doctors into speakers for its speaker program, purportedly budgeting $3 million for those programs in one year and hosting training programs geared toward speakers that ran $5,000 per physician, according to court documents.

Gohil also contended that as a result of its various schemes, Sanofi applied for reimbursement of Medicare and Medicaid under false pretenses in violation of the FCA. The case was unsealed after the government chose not to get involved in 2006. In 2018, U.S. District Judge Lawrence F. Stengel, presiding over the litigation at the time, ordered the drugmaker to divulge hundreds of documents it had asserted attorney-client privilege over in the dispute.

The whistleblower is represented by Stephen M. Orlofsky of Blank Rome LLP. The case is U.S. ex rel. Yoash Gohil v. Aventis Pharmaceuticals Inc. et al. (case number 2:02-cv-02964) in the U.S. District Court for the Eastern District of Pennsylvania.

Source: Law360.com

Physical Therapy Provider Settles False Claims Act Case For $4 Million

RehabAuthority, LLC, a Minnesota-based physical therapy company, has agreed to pay $4 million to settle allegations that it violated the False Claims Act (FCA) by submitting false claims for payment to the government for outpatient physical therapy services. This civil settlement resolves claims brought against RehabAuthority under the qui tam or whistleblower provisions of the FCA.

The settlement resolves claims that, from Jan. 1, 2014, to Dec. 31, 2018, RehabAuthority clinics submitted or caused to be submitted false claims for payment to the government for outpatient physical therapy. The clinics, located in Minnesota, North Dakota, Idaho, and Wyoming, improperly billed Medicare Part B, Minnesota Medicaid, TRICARE, and the Veterans Health Administration for one-on-one outpatient physical therapy, including therapeutic exercises, manual therapy, ultrasounds, therapeutic activities, and gait training.

Specifically, the case centered on claims that RehabAuthority billed the government for direct, one-on-one care with physical therapists but failed to provide the care when it overbooked government beneficiaries for certain outpatient physical therapy services.

The settlement obtained against RehabAuthority in this matter resulted from coordination between several government agencies, including the U.S. Attorney’s Office for the District of Minnesota, the Office of Inspector General of the U.S. Department of Health and Human Services, the Defense Health Agency, the U.S. Department of Veterans Affairs, the Office of the Minnesota Attorney General, and the Minnesota Department of Human Services.

Source: justice.gov

A Look At The Circuit Split Over Qui Tam Dismissals

There has long been a circuit court split over the standard that applies to government-initiated motions to dismiss qui tam actions under the False Claims Act. Until last year, there were two approaches. Now there appear to be three. Take a look:

  • The Swift standard, derived from the U.S. Court of Appeals for the District of Columbia Circuit’s 2003 ruling in Swift v. U.S., affords the government an unfettered right to dismiss a qui tam FCA action.
  • The Sequoia Orange standard stems from the U.S. Court of Appeals for the Ninth Circuit’s 1998 ruling in S. ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp. The Sequoia Orange standard requires the government to identify a valid government purpose and then show a rational relation between its purpose and the dismissal of the case.
  • There is now a third standard. Last year, the U.S. Court of Appeals for the Seventh Circuit, in S. ex rel. CIMZNHCA LLC v. UCB Inc. created this new standard that treats the government like any private party plaintiff under the Federal Rules of Civil Procedure. The court determined that the standard applicable to government-initiated dismissal motions is the one provided by Rule 41(a), which governs voluntary dismissal of a plaintiff’s claims in garden-variety civil practice.

The U.S. Court of Appeals for the Third Circuit has now added its view to the circuit split. In Polansky v. Executive Health Resources Inc., the Third Circuit unanimously declined to follow either of the two more established standards — Swift or Sequoia Orange — and elected instead to adopt the recently articulated approach of the Seventh Circuit. In doing so, it issued two significant holdings.

The First Holding

The Third Circuit held that when the government declines to move forward with a relator’s FCA action, and the relator elects to proceed on their own, the government must intervene before it can move to dismiss. The court held that the government can seek leave to intervene at any point in the litigation upon a showing of good cause.

The Second Holding

The court held that a government-initiated dismissal motion in a qui tam action should be governed by Rule 41(a) of the Federal Rules of Civil Procedure. In so holding, the court determined that the government should be treated the same as any private party plaintiff when seeking to dismiss a civil case. The court reasoned that because Rule 41(a) functions subject to any applicable federal statute, the governing standard should be a blend of Rule 41(a) and the provisions of the FCA.

In FCA actions, the analysis relating to dismissals will operate as follows: The relator must receive notice of the government’s motion to dismiss and have an opportunity for a hearing, regardless of when the government’s motion is filed. If the government moves to dismiss a relator’s FCA case before the defendant has filed a responsive pleading, and the relator has had the opportunity to be heard, the government is entitled to dismissal unless it has engaged in unconstitutionally arbitrary conduct.

The Third Circuit’s decision in Polansky further widens the long-standing circuit split over the standard to apply to government-initiated motions to dismiss in qui tam actions. Because a government-initiated motion to dismiss in the Third Circuit will be governed by the Federal Rules of Civil Procedure and constitutional principles, it will be subject to greater scrutiny than motions to dismiss filed in the Ninth Circuit or U.S. Court of Appeals for the Tenth Circuit.

Although all three standards are largely deferential to the government, the approach initially articulated by the Seventh, and recently adopted by the Third Circuit, will likely cause an increasing level of scrutiny for government-initiated motions filed after the defendant has entered the case. Beasley Allen lawyers will continue to monitor the circuit split on the dismissal issue.

Source: Law360.com

The Beasley Allen Whistleblower Litigation Team

Lawyers on Beasley Allen’s Whistleblower Litigation Team are still very busy handling cases around the country under the False Claims Act (FCA). Whistleblower litigation has continued to be very active. Fraud against the federal government is being committed by all too many industries in this country, especially in the healthcare field. This continues to be a huge problem.

We continue to stress that whistleblowers are essential and key to exposing corporate wrongdoing and fraud against the government. Their essential role has intensified dramatically and will continue in that direction in the immediate future and beyond.

A person who has first-hand knowledge of fraud or other wrongdoing may have a whistleblower case. Before you report suspected fraud or other misconduct – before you “blow the whistle” – it is essential to make sure you have a valid claim and that you prepare for what lies ahead. The experienced group of lawyers on our team is dedicated to handling whistleblower cases.

It’s important to know that if you are aware of any fraudulent activity in corporate America against the federal or state governments, you could be rewarded for reporting the fraud.  If you have any questions about whether you qualify as a whistleblower, you can contact one of the lawyers on Beasley Allen’s Whistleblower Litigation Team for a free and confidential evaluation of your claim. There is also a contact form on the Beasley Allen website that you can use.

The Beasley Allen lawyers set out below are on the Whistleblower Litigation Team: Larry Golston ( [email protected]), Lance Gould ( [email protected]), James Eubank ( [email protected]), Paul Evans ( [email protected]), Leon Hampton ( [email protected]), Tyner Helms ( [email protected]) and Lauren Miles ( [email protected]). Dee Miles ( [email protected]) heads our Consumer Fraud & Commercial Litigation Section, participates in whistleblower litigation, and works with the litigation team.  The lawyers can be reached by phone at 800-898-2034 or by email.

PRODUCT LIABILITY UPDATE

Evan Allen In Mobile Office Settles Tree Stand Wrongful Death Case

Lawyers in our Mobile office continue to focus on product liability claims that involve serious injury or death. One of those lawyers, Evan Allen, in the Personal Injury & Products Liability Section, settled a wrongful death case last month involving a tree stand made and sold by Global Manufacturing Company. Evan represented the estate of Brain Schall, who was tragically killed in a deer-hunting accident. This incident occurred while Brian was hunting from an API Marksman tree stand on Dec. 2, 2018, in Calhoun County, Alabama. The stand suddenly detached from the tree, causing Brian to fall approximately 20 feet. He died from the fall.

As many of you know, hunters use tree stands to allow them to hunt from an elevated position. This stand comes with a main light green metal stand platform and nylon (cable) hanging strap assembly. According to the Consumer Product Safety Commission (CPSC), the API Marksman stand was under recall due to the cable assembly releasing, which poses a fall hazard. This is what occurred when Brian used the defective tree stand.

According to the Alabama Department of Conservation and Natural Resources, the leading cause of injury and death for Alabama hunters is falls from elevated platforms and tree stands. During the 2018–2019 hunting season, the department reported three fatal and 12 nonfatal tree stand incidents. Researchers at the University of Alabama Birmingham found that hunters ages 15–34 are at higher risk for falls. Other studies across the country show that hunters ages 40–50 years old are also more vulnerable to tree stand falls.

Researchers warn that hunters should be trained on proactive safety measures to decrease their risk of serious injury and death in the event of equipment failure. For example, in 2011, nearly half of the falls by hunters were caused when the strap securing the stand to the tree broke.

Evan filed a lawsuit on behalf of Brian’s estate against the Windom, Minnesota-based manufacturer of the tree stand in the U.S. District Court for the Northern District of Alabama. The complaint alleged causes of action under the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD), negligence, and wantonness. At the close of discovery in the case and prior to a trial, the parties reached a confidential settlement.

If you have any questions or would like to discuss a potential claim, contact Evan Allen, a lawyer in our firm’s Personal Injury & Product’s Liability Section, at 800-898-2034 or by email at [email protected].

If you have any questions about the Mobile office or about a specific case, contact Frank Woodson, who manages the office, at 800-898-2034 or email at [email protected].

Sources: Consumer Products Safety Commission, Alabama Department of Conservation and Natural Resources, University of Alabama Birmingham, Grandview Outdoors

Louisiana Supreme Court Rejects Appeal of $7.2 Million Tire Defect Verdict

The Louisiana Supreme Court has declined to hear an appeal by Goodyear Tire & Rubber Co., leaving in place a $7.2 million wrongful death verdict for the family of a  man who was killed when a defective Goodyear G182 tire suddenly exploded. Interest accrued during Goodyear’s appeal bringing the award to nearly $8.9 million.

This is the latest defeat for Goodyear in the case of Breaux v. Goodyear Tire & Rubber Co., stemming from a February 2014 incident in which Elwood Breaux Jr. suffered mortal injuries when a G182 tire experienced a “zipper failure” and ruptured as he was inflating it.

A three-judge panel from Louisiana’s Fourth Circuit Court of Appeal previously found that the trial judge had properly ruled that Goodyear had not carried out its duty to warn about the dangers of its tires and how to avoid injury.

Bruce Kaster, Skip Lynch, Wes Ball and Kyle Farrar lawyers with Kaster, Lynch, Farrar & Ball handled the trial and appeals, along with the Louisiana-based firm of Meeks & Associates.

Source: PRNewswire

$1.2 Million Verdict In Tire Explosion Lawsuit

A Mississippi federal jury has returned a $1.28 million verdict in a mechanic’s suit against Asian Tire Factory Ltd. The company failed to warn the worker about a faulty tire that exploded and injured him. The jury found Asian Tire 26.6% at fault for the accident that injured plaintiff Charles Thomas Pettway. In the verdict, the jurors found that the plaintiff’s employer at the time, Cal-Maine Foods Inc., was 69.7% at fault. The plaintiff was found 3.6% at fault by the jury.

Plaintiff Pettway worked as a mechanic for Cal-Maine, and on June 23, 2017, he was mounting a Farm King tire made by Asian Tire when the tire suddenly exploded, causing him many injuries. His injuries included a lacerated spleen, bruised intestines, internal bleeding, a severe cut to his left arm and an artery explosion in the arm.

Cal-Maine, the employer, joined in the suit as a plaintiff, seeking to recoup the amount it paid to Pettway in workers’ compensation. The complaint also named the makers and distributors of the rim that Pettway was mounting the tire to, but they were dismissed from the suit before trial. In the complaint, Pettway alleged the tire did not list the maximum inflation pressure on the tire’s sidewall, and as a result, he inadvertently overinflated the tire. The jury found that Pettway and Cal-Maine proved the elements of their failure to warn claim.

At trial, Asian Tire argued Cal-Maine had failed to train Pettway and did not provide safety equipment required by the U.S. Occupational Safety and Health Administration.

Asian Tire is responsible for $342,791 out of the $1.28 million, while Cal-Maine is exempt from the judgment because of the state’s workers’ compensation law.

Pettway and Cal-Maine are represented by E. Scott Verhine of Verhine & Verhine PLLC. The case is Pettway et al. v. Asian Tire Factory Ltd. (case number 3:20-cv-00010) in the U.S. District Court for the Southern District of Mississippi.

Source: Law360.com

AN UPDATE ON MOTOR VEHICLE LITIGATION

Tesla Auto Product Liability Cases

Lawyers at Beasley Allen are no stranger to cases involving vehicle fires. Just last month, they resolved a case involving a fuel tank explosion that caused the death of our client’s daughter. In that case, the vehicle’s fuel tank was located behind its rear axle, and when the vehicle was rear-ended, the fuel tank breached, and an ignition source caused a fire that quickly burned up the entire vehicle – with our client’s daughter still inside.

Teslas – the electric cars designed and popularized by the enigmatic Elon Musk – have started making headlines for a different type of vehicle fire. Teslas are powered by high-voltage lithium-ion batteries. These batteries have begun making headlines for catching on fire – fires that burn hard and long.

Tesla’s website acknowledges that battery fires can take up to 24 hours to extinguish. In April, a Tesla Model S fire made headlines for requiring nearly 30,000 gallons of water to extinguish it (compared to the 300 gallons it typically needs to extinguish a gas engine car fire).

The U.S. National Transportation Safety Board (NTSB) recently investigated several fires in Tesla vehicles and found that the Tesla’s batteries pose safety risks to first responders after crashes. As Bloomberg recently reported, “When an electric vehicle burns, it does so for longer, and the fire gets hotter. The flames can end up accelerating through chain reactions and spiraling out of control quickly, a process called thermal runaway.”

Firefighters responding to a November 2021 Tesla fire found the same thing, saying in an interview with local news that the Tesla’s battery technology made it more challenging to put out the fire, “What we’re finding with this one is the batteries are shorting out on us, and they just keep generating heat and keep reigniting.”  That raging fire left the car unrecognizable, and the driver inside the vehicle died a tragic death.

A Tesla Model 3 caught fire in a single-car incident in Florida in September that likewise resulted in the deaths of the occupants. The first responders also reported challenges extinguishing the fire and observed the vehicle’s batteries reignited at least once.

In response to reports of battery fires in its vehicles, Tesla’s representatives make the same argument Beasley Allen lawyers often see from the defense in auto product cases – that the collision was high-speed, and high-speed collisions can result in a fire for any kind of car. However, collisions (high speed or otherwise) are not the only places our lawyers are seeing Tesla battery fires. Last year, a California family was awoken to flames consuming their home in San Ramon. Twelve minutes earlier, their Tesla Model S had beamed an alert that charging was interrupted.

Automakers including Chevrolet, Audi, Hyundai, and General Motors have recalled electric vehicles over fire risks. Chevrolet most recently recalled all Chevrolet Bolt electric cars produced since 2017 because their batteries were at risk of overheating and catching fire due to manufacturing defects. A petition dating back to 2019 asked the National Highway Traffic Safety Administration (NHTSA) to investigate battery fires in Teslas where accidents are not involved, but an investigation has not been performed.

In addition to customer concerns about battery fires, Tesla’s driver-assistant program (Autopilot) has also raised safety concerns.  A highly publicized Tesla crash in Florida in 2016 resulted in a driver’s death when his Tesla crashed into a tractor-trailer while on Autopilot.  An NHTSA official, commenting on the crash, said that system safeguards were lacking and that “Tesla allowed the driver to use the system outside of the environment for which it was designed and the system gave far too much leeway to the driver to divert his attention.”

NHTSA is investigating whether autopilot has a defect causing it to overlook emergency vehicles on highways after reports of 12 separate incidents of Teslas using autopilot hitting police cars, fire trucks, or other first responder vehicles.  Those crashes resulted in at least 17 injuries and one death (a Tesla Model 3 crash in December 2019 left a passenger dead after the vehicle collided with a parked fire truck in Indiana while in AutoPilot mode).  The investigation covers 765,000 U.S. Tesla vehicles built between 2014 and 2021.

Autonomous driving vehicles have been a discussion point for years.  NHTSA’s website acknowledges the eventuality that “[t]he continuing evolution of automotive technology aims to deliver even greater safety benefits and Automated Driving Systems (ADS) that – one day – can handle the whole task of driving when we don’t want to or can’t do it ourselves. Fully automated cars and trucks that drive us, instead of us driving them, will become a reality.”

Tesla’s Full Self-Driving (FSD) Beta program, which boasts more advanced driver assistance, is being rolled out to more users. The first FSD Beta crash has been reported to NHTSA – a 2021 Tesla Model Y driver reported that they attempted to take control of the vehicle while it was in FSD Beta, but that the vehicle fought for control and forced itself into the incorrect lane.

Collisions (and resulting injuries and deaths) occurring while an automated driving system like autopilot or FSD Beta will continue to be part of the auto product defect conversation for years to come.  Beasley Allen lawyers will continue to monitor and investigate collisions where Tesla design or manufacturing defects may have caused or contributed to injuries or wrongful death of Tesla occupants.

If you have any questions or comments, contact Alyssa Baskam at 800-898-2034 or by email at [email protected]. Alyssa handles product defect litigation involving the automobile industry.

VW Must Face Audi Drivers’ Claims Over Faulty Engines

Volkswagen will have to face claims that it knowingly helped Audi sell cars with a defective engine part. U.S. District Judge Kevin McNulty found that while the connection between the two companies is “somewhat murky,” there was enough to allow the suit to proceed. In his order, he said that it’s premature to allow Volkswagen AG out of claims by a proposed class of Audi AG owners because VW knew about the issues with Audi vehicles and still helped market those cars to U.S. consumers. Judge McNulty said further:

It is possible that in discovery, facts will emerge that demonstrate that VW AG should not be held liable for the alleged defects in Audi vehicles, but at this stage the plaintiffs have plausibly alleged that VW AG was involved and thus I will not dismiss the claims against it at this stage.

Judge McNulty’s order denied VW’s motion to dismiss for lack of standing. He also rejected the company’s claim that plaintiffs failed to state a claim under California’s Consumers Legal Remedies Act and Unfair Competition Law. The only claims the judge dismissed were breach of express warranty counts that plaintiffs voluntarily withdrew.

Drivers from more than a dozen states alleged that VW and Audi concealed a timing chain system malfunction that caused their engines to lose power and thus the ability to accelerate, maintain speed or brake. They filed suit in March 2020 and seek to represent all those in the United States who purchased 2012 through 2019 VW or Audi vehicles containing the defective timing chain system in an EA888 engine.

VW argued that it couldn’t be held liable for Audi cars because VW “did not design, manufacture, distribute or sell the plaintiffs’ Audi vehicles, or the ‘EA888′ engines contained in the plaintiffs’ Audi vehicles,” according to a statement by a VW engineer.

Judge McNulty found that the plaintiffs’ evidence – service training manuals produced and copyrighted by VW that mention the issue in the Audi engine were all significant. The judge said further:

The most significant factual allegation is that VW AG produced repair materials for the entire corporate family (including Audi AG) that acknowledged the issue. VW AG communicated this information to dealers, but did not inform consumers about the problem.

The drivers are represented by Carella Byrne Cecchi Olstein Brody & Agnello PC, Kessler Topaz Meltzer & Check LLP and Kantrowitz Goldhamer & Graifman PC, and Thomas P. Sobran of Law Offices of Thomas P. Sobran

The case is Matthew Opheim et al. v. Volkswagen Aktiengesellschaft et al. (case number 2:20-cv-02483) in the U.S District Court for the District of New Jersey.

Source: Law360.com

AVIATION LITIGATION

Boeing, Ethiopian Crash Families Reach Settlement On Damages

Boeing has accepted liability for the Ethiopian Airlines 737 MAX crash that killed 157 people. A settlement was reached that clears the way for families handling negligence and wrongful death suits in Illinois federal court to collect compensatory damages. However, the settlement prohibits the plaintiffs from recovering punitive damages.

The parties filed a joint stipulation in the Northern District of Illinois on Nov. 10, stating that each plaintiff in the consolidated Ethiopian Airlines Flight ET 302 Crash litigation will be entitled to recover compensatory damages under Illinois law either through a voluntary settlement or a trial.

The recoverable damages could include loss of economic support, loss of consortium, pain and suffering and emotional distress, among other things. But the families agreed to waive all their claims against Boeing for punitive damages over the fatal March 2019 crash. The lead lawyers on the plaintiffs’ executive committee, including Robert Clifford of the Clifford Law Offices, Steven C. Marks of Podhurst Orseck PA and Justin Green of Kreindler & Kreindler LLP, said in a joint statement that the negotiated agreement is a “significant milestone” for the families.

In review, the 737 MAX was involved in two fatal overseas crashes in five months: the October 2018 crash of Lion Air Flight 610 in the Java Sea, which killed 189 people, and the March 2019 crash of Ethiopian Airlines Flight 302, which killed 157. What followed was an unprecedented 20-month global grounding of the jets, multiple investigations targeting Boeing’s missteps in the 737 MAX’s development and the Federal Aviation Administration’s oversight lapses, as well as scores of lawsuits from crash victims’ families, shareholders, airline customers and others accusing Boeing of shortcutting safety in its pursuit of profits.

Most of the families of the Lion Air crash victims have reached confidential settlements in separate consolidated litigation against Boeing that is also in the Northern District of Illinois.

The various lawsuits and investigations also revealed that throughout the five-year aircraft certification process for the 737 MAX, FAA technical experts who flagged potentially unsafe design or engineering issues were overruled by FAA managers who were being pressured by Boeing to help keep the 737 MAX’s production on schedule.

The Ethiopian Airlines families are represented by Robert A. Clifford, Kevin P. Durkin, Tracy A. Brammeier and John V. Kalantzis of Clifford Law Offices PC; Steven C. Marks, Ricardo M. Martinez-Cid, Kristina M. Infante and Pablo Rojas of Podhurst Orseck PA; Justin T. Green, Anthony Tarricone, Brian J. Alexander, Daniel O. Rose, Megan W. Benett, Andrew J. Maloney III and Erin R. Applebaum of Kreindler & Kreindler LLP; and Mike Andrews from our firm.

The case is In re: Ethiopian Airlines Flight ET 302 Crash (case number 1:19-cv-02170) in the U.S. District Court for the Northern District of Illinois.

Beasley Allen Involved In Ethiopian Airlines Crash Litigation Settlement

Beasley Allen’s Mike Andrews represents the family of Juliah Mwashi, a victim of the Boeing MAX Ethiopian Airlines crash. Mike worked with the Plaintiffs Litigation Committee to help negotiate the Boeing settlement agreement in the ongoing 737 MAX litigation described above. Under the agreement, Boeing will admit responsibility for the crash, that the 737 MAX had an unsafe condition, and that Boeing will not attempt to blame the pilots or Ethiopian Airlines for the crash. Additionally, Boeing agreed to apply U.S. damages law which is a significant milestone in this litigation.

Mike is a member of our firm’s Personal Injury & Product Liability Section. He focuses much of his practice on aviation litigation and has led the firm’s investigation of the two Boeing 737 MAX crashes. Mike says:

From the beginning, our clients, Juliah’s daughters, have sought accountability and for Boeing to admit it failed to protect the girls’ mother, and this agreement does that. It has taken over two years, but the persistent and brave efforts of our clients and other victims’ families demanding accountability from Boeing have proved successful. I know Juliah would be proud of her family, especially her daughters.

On March 10, 2019, Juliah was on board the massive malfunctioning Boeing 737 MAX that plunged itself and the 157 people it was carrying 45 feet into the ground near Bishoftu, Ethiopia, at nearly 600 miles per hour. It was a tragedy that should never have happened, and if Boeing had acted on knowledge about a defect with its aircraft, specifically from information obtained after the first Boeing 737 MAX crash in October 2018, Juliah would not have perished and would still be enjoying life with her daughters.

The agreement was filed with the U.S. District Court in Chicago. Although specific damage amounts have not been agreed upon, Boeing agreed to pay compensatory damages in exchange for the families agreeing not to pursue punitive damages.

Juliah was a branch coordinator in charge of the Young Leaders and the Youth Exchange South to South (YESS) Girls Movement programs at the Kenyan Girl Guide Association. It is part of the World Association of Girl Guides and Girl Scouts. The organization “support[s] girls and young women to develop their full potential as leaders and active citizens of the world through funded programmes and leadership training.” Mwashi was a strong advocate in fostering the female leaders of the next generation.

Like Juliah, a number of other victims were also dedicated employees of other nonprofit organizations. They were on their way to a United Nations Environment Assembly in Nairobi, Kenya. Mike said:

Sadly, Juliah and the other 345 lives that were sacrificed on the two doomed Boeing MAX flights will never return home. This agreement is a significant milestone in the process for the families seeking justice and accountability.

In January, Boeing signed a Deferred Prosecution Agreement with the U.S. Department of Justice (DOJ) to end the federal probe of the MAX’s development and certification processes. The agreement absolved company leadership from criminal charges. In exchange, Boeing agreed to pay $2.5 billion in fines and compensation for the tragedies that resulted from the defective aircraft it recklessly placed in commercial travel.

Boeing Board Agrees To A $238 Million Settlement To End 737 Max Derivative Suit

Boeing’s board of directors has reached a $237.5 million settlement to end the shareholder derivative suit alleging the company failed to adequately oversee development of the 737 MAX jets, which were involved in the deadly crashes that left 346 people dead. Lawyers for the New York and Colorado pension funds, lead plaintiffs in the consolidated litigation, told Vice Chancellor Morgan T. Zurn in court filings on Nov. 5 that in addition to the $237.5 million monetary settlement, which will be paid by Boeing Co.’s directors’ and officers’ liability insurers, the American aerospace giant will improve its corporate governance and compliance program. The settlement agreement still needs to be approved by the court.

Boeing had already reached a $2.5 billion settlement earlier this year to end a U.S. Department of Justice criminal conspiracy investigation that focused on misleading statements that two former Boeing employees made to the FAA’s Aircraft Evaluation Group.

The stockholder plaintiffs are represented by Joel Friedlander, Jeffrey M. Gorris and Christopher M. Foulds of Friedlander & Gorris PA and Richard M. Heimann, Katherine Lubin Benson, Steven E. Fineman, Nicholas Diamand, Sean Petterson, Rhea Ghosh and Kartik S. Madiraju of Lieff Cabraser Heimann & Bernstein LLP.

The case is In re: The Boeing Co. Derivative Litigation (case number 2019-0907) in the Court of Chancery of the State of Delaware.

Source: Law360.com

Investigating Aviation Crashes To Learn How And Why They Happen

Lawyers at Beasley Allen have handled numerous cases involving aviation accident crashes. They have learned that most crashes don’t occur because of a single cause. A combination of factors contributes to such disastrous and often deadly outcomes, so investigators need to examine many aspects of an accident to determine how and why the crash occurred. Investigating these crashes is vital so that the aviation industry and regulators can learn how, and more importantly, why the crash occurred to prevent or limit future risk of a similar occurrence.

Although federal authorities, including the National Transportation Safety Board (NTSB) and Federal Aviation Administration (FAA), are officially charged with investigating crashes in the U.S., surviving relatives of air crash victims hire our firm to assist. Grieving families are looking for answers that may not be fully addressed through a federal investigation. They are also looking for a different type of accountability for pilots or others whose decisions or negligence contributed to their loved one’s death.

Following the fatal October crash that occurred at the Dekalb Peachtree Airport just outside of Atlanta, Georgia, the family of Lauren Herrington hired our firm to assist with the investigation. Mike Andrews, a lawyer in the firm’s Personal Injury & Product Liability Section, focuses much of his practice on aviation litigation and is assisting Lauren’s family with the investigation.

Mike noted that while considering some of the common factors that led to the type of crash that killed Lauren, the NTSB specifically questioned the weight and balance of the aircraft.

The NTSB explains that weight and balance issues result when an aircraft is overloaded or operates outside the center of gravity limits. When this happens, it can “severely degrade an aircraft’s performance characteristics and ultimately lead to an aerodynamic stall and / or loss of aircraft control, typically during takeoff or landing.” Pilots must perform preflight calculations to confirm the aircraft’s weight and balance are within the certificated limits for takeoff. The NTSB reports that between 2008 and 2016, 136 general aviation accidents where the probable cause was related to pilots improperly conducting or failing to conduct preflight performance calculations for weight and balance. In a third of those accidents, the pilot and / or passengers were killed.

There are other common factors that lead to aviation crashes. As the crash investigation involving Lauren unfolds, Mike explained that the federal investigators will examine some of these factors, including mechanical failures and possibly other human error.

AVWeb reports that mechanical failures account for approximately 15% of general aviation crashes. Mechanical failures can result from aircraft manufacturing defects, flawed aircraft design, inadequate warning systems and inadequate instructions for safe use of the aircraft’s equipment or systems. If a pilot experiences this type of scenario, they may follow every procedure correctly but still not avoid disaster. It is critical to determine what caused the failure and work to make the proper adjustments. Federal agencies will also issue warnings and implement other protocols to keep defective aircraft out of use until they can be fixed.

The most frequently cited cause of aviation crashes is pilot error. Pilots are responsible for ensuring the aircraft is in safe working condition and keeping passengers safe throughout the entire flight, from takeoff to landing. Because of this duty, it is very seldom that some level of responsibility is not assigned to the pilot following a crash and investigation. Pilot error often occurs when the pilot fails to act or respond appropriately in a given situation, and this is known as “cockpit errors.” Additionally, pilots may demonstrate negligence, lack training, or miscommunicate with others, such as air traffic control. Additionally, flight crew and ground personnel, including mechanics and air traffic controllers, can exhibit other human errors contributing to a disaster.

Weather is another contributing factor in aviation crashes. It is often closely tied to pilot error because weather conditions cannot be controlled, yet responding to or mitigating inclement weather is the pilot’s responsibility. While investigators will consider all possible contributing factors during their investigation of the crash that killed our clients’ family member, it is doubtful weather played a role in that crash.

A final report on the accident involving Lauren Herrington likely won’t be available for approximately 18 months. We will keep our readers updated on any developments in the investigation.

Sources: National Transportation Safety Board, and AVWeb

Aircraft Litigation At Beasley Allen

If you would like to have more information on any aspect of aviation litigation, including the Boeing litigation, or you need help on an aviation case, contact Mike Andrews at 800-898-2034 or by email [email protected]. Mike is the lead lawyer in our firm on all aircraft-related litigation.

THE JUUL LITIGATION

JUUL Litigation Update

The national litigation against JUUL continues to move steadily, with four bellwether trials set for 2022. The first bellwether trial will start in April 2022. Discussions regarding a second wave of personal injury bellwether cases are underway.

To date, nearly 3,000 cases have been filed in the JUUL multidistrict litigation (MDL) – just under 2,500 personal injury claims and 402 government entities (school districts, cities, counties and tribes). In the California state court litigation in Los Angeles Superior Court, an additional 2,800 cases are pending. Additionally, 14 state attorneys general have filed suit against the e-cigarette manufacturer. The FDA has not yet decided whether JUUL will be approved to remain on the market. If approved, it is believed the approval would place limits on flavors and marketing.

Beasley Allen’s Joseph VanZandt serves on the JUUL PSC. He and Mass Torts Section Head Andy Birchfield head our firm’s efforts to hold JUUL accountable for the damage they have done to thousands of youth around the country. Beasley Allen’s Beau Darley serves on the PSC for the California state court litigation.

Lawyers at Beasley Allen continue to take new JUUL cases for individuals, school districts, and other government entities that JUUL has impacted. You can contact Joseph VanZandt ( [email protected]llen.com) or Beau Darley ( [email protected]) if you need more information or you want to discuss a case.

Arizona Reaches $14.5 Million JUUL Settlement

The State of Arizona has reached a $14.5 million settlement with JUUL Labs in a case Attorney General Mark Brnovich filed against the e-cigarette maker for marketing its products to youth.

The settlement, pending court approval, also requires JUUL Labs Inc. to change its corporate practices and ensure that its products aren’t marketed or sold to youth in Arizona.

The settlement funds will be used as follows: $12.5 million will be used for programs to stop youth vaping. The remaining $2 million will go toward litigation reimbursement and a state fund for consumer protection and consumer fraud.

Arizona is represented by Joseph Sciarrotta Jr., Laura Dilweg, Erika Mansur, Jane Fallon, Leslie Cooper and Matthew du Mee of the state’s attorney general’s office. The case is State of Arizona v. JUUL Labs Inc. (case number CV2020-000317) in the Maricopa County Superior Court.

Source: Law360.com

The JUUL Litigation Team

Beasley Allen lawyers, led by Joseph VanZandt, are heavily involved in the JUUL litigation. They represent individuals suing JUUL, the top U.S. vape maker, for the negative impact its products have had on their lives. Beasley Allen also represents a number of school systems in the JUUL litigation. The firm’s JUUL Litigation Team lawyers have filed JUUL lawsuits on behalf of school districts nationwide. This litigation seeks to protect students and recover resources spent fighting the vaping epidemic.

If you have a potential claim or need more information on JUUL, contact any of the lawyers on the JUUL Litigation team at 800-898-2034 or by email. Members are [email protected], [email protected], [email protected], [email protected], [email protected] or [email protected]. Andy Birchfield ( [email protected]), who heads up the firm’s Mass Torts Section, works with the team on the JUUL litigation.

THE ASBESTOS LITIGATION

Asbestos And The Bankruptcy Trust Compensation System

I suspect that just about every person reading this part of the Report has been awake late at night or home during the middle of the day watching TV when a commercial comes on asking, “Have you or a loved one been exposed to asbestos?” The commercials explain that “billions” of dollars have been set aside as compensation for individuals diagnosed with mesothelioma and / or other asbestos-related diseases. But what are those commercials really saying?  Why is this money “set aside?” Who gets this money and how?  These are the questions viewers often have after seeing one of those TV commercials.

The answers to those questions are actually simple. Over the years, numerous companies that produced and sold asbestos-containing products have filed for bankruptcy protection, claiming that their asbestos liabilities made them insolvent.  Many of these companies were some of the very worst players in terms of manufacturing asbestos-containing products and materials that they knew would kill people.

But as litigation mounted against them beginning in the 1980s, these companies filed for bankruptcy to shield themselves from more asbestos lawsuits.  As part of those bankruptcies, a special provision in the bankruptcy code was created that authorizes a bankruptcy court to form a “plan” that channels all current and future asbestos claims to a trust created by the plan to handle and resolve those claims. To put it more simply, after these asbestos companies form one of these trusts, they can reemerge from bankruptcy and continue to operate as a normal company and be shielded from asbestos lawsuits.

The good news is that this gives injured claimants an alternative path towards recovery. But that is where the good news ends. Unfortunately, even for folks diagnosed with terminal diseases such as mesothelioma, the compensation level is literally pennies on the dollar. It is not unusual for these trusts to award less than $10,000 – $15,000 to a dying claimant.

Currently, there are about 65 active Asbestos Trust Funds totaling more than 30 billion dollars. Asbestos Bankruptcy Trust Funds have set criteria of values they pay to qualified claimants. By filing numerous claims, the total bankruptcy trust settlement value can get close to or in the six-figure range. But that is hardly appropriate compensation for the deaths and destruction caused by these companies. Worse, these companies have emerged from bankruptcy and are thriving economically, while people exposed to their products are still dying.

At Beasley Allen, our lawyers understand the complex nature of asbestos litigation and simultaneously maximize bankruptcy trust settlement value while litigating the case in the traditional tort system targeting non-bankrupt parties who are responsible for these injuries as well. Only by simultaneously embracing both compensation systems, bankruptcy and traditional tort, can the value of a case be maximized. There are responsible parties in both systems, and the Beasley Allen lawyers work to target those responsible parties and seek justice on behalf of our clients.  If you need more information, contact Charlie Stern at 800-898-2034 or by email at [email protected]

Source: Bankruptcy Code § 524(g)

The Asbestos Litigation Team

Asbestos litigation continues to be extensive nationwide. The Asbestos Litigation Team at Beasley Allen is headed by Charlie Stern. Other team members are Will Sutton and Cindy Lopez. Rhon Jones, who heads our Toxic Torts Section, works with the team. Charlie has years of experience in asbestos litigation, and that’s why he was selected to lead the team. If you need assistance with cases involving asbestos products, contact one of the team members by phone at 800-898-2034 or email at [email protected], [email protected], or [email protected].

THE SUNSCREEN LITIGATION

J&J And Costco Reach Settlement In MDL Alleging Tainted Sunscreen

Johnson & Johnson (J&J) and Costco Wholesale Corp. (Costco), and a group of consumers have reached a tentative agreement to resolve multidistrict litigation (MDL) alleging J&J sunscreen products were tainted with the carcinogen benzene. A settlement notice was filed in the Southern District of Florida last month.

The opposing parties said in the settlement notice they have jointly reached an “agreement in principle” to settle the lawsuits over certain Neutrogena and Aveeno aerosol sunscreen products that have since been consolidated in the MDL. The cases were moved from courts in New York, New Jersey, Florida and California to be centralized before U.S. District Judge Raag Singhal. The notice states:

Plaintiffs and defendants are presently drafting a written settlement agreement and related documents. Counsel for plaintiffs anticipate filing the settlement agreement and related documents with the court as part of a motion for preliminary approval on or before November 19, 2021.

The proposed class actions — filed by Katherine Brennan, Michelle Mang, Meredith Serota, Jacob Somers, Fredric Salter, Carman Grisham, Kyra Harrell, Judith Barich, Lauren Harper, Kelly Granda, Heather Rudy and Dina Casaliggi — allege that J&J unlawfully failed to inform consumers that the sunscreen products contain benzene, which has been linked to leukemia and other forms of cancer. Costco was sued for its role in selling the listed sunscreen products.

J&J subsidiary, Johnson & Johnson Consumer Inc. (JJCI), on July 14, voluntarily recalled five Neutrogena and Aveeno sunscreen spray product lines. JJCI said in a statement at the time that “internal testing identified low levels of benzene in some samples of the products.” The company also said it would provide refunds for the products. The recall came nearly two months after online pharmacy Valisure released similar test results.

Valisure announced on May 25 that it had detected high levels of benzene in several sunscreen products and that it had filed a citizen petition with the U.S. Food and Drug Administration seeking recalls of the products. They included various Neutrogena products, among them one that allegedly contained 6.26 parts per million of benzene, which was the highest level detected in the analysis, Valisure said.

The U.S. Judicial Panel on Multidistrict Litigation in October approved centralizing the suits in the Florida federal court, sending the cases to Judge Singhal.

The plaintiffs are represented by R. Jason Richards of Aylstock Witkin Kreis & Overholtz PLLC. Plaintiffs Brennan and Mang are also represented by Kiley Lynn Grombacher of Bradley Grombacher LLP.

The case is In Re: Johnson & Johnson Aerosol Sunscreen Marketing, Sales Practices and Products Liability Litigation (case number 0:21-md-03015) in the U.S. District Court for the Southern District of Florida.

Source: Law360.com

THE PARAQUAT LITIGATION

An Update On The Paraquat MDL

The Paraquat Products Liability Litigation multidistrict litigation (MDL) was formed on June 8, 2021 (Case No. 3:21-MD-3004). Currently, 407 lawsuits have been consolidated in the MDL before Chief Judge Nancy J. Rosenstengel of the Southern District of Illinois. The court has created a website for updates on the paraquat litigation, which can be found at www.ilsd.uscourts.gov/mld/mdl3004.aspx.

On Oct. 27, 2021, the court entered Order No. 10, implementing the Plaintiff Assessment Questionnaire (PAQ). The administrator of the online platform is Postlethwaite & Netterville (P&N), who has created a portal with a fillable online form, available at https://www.paraquatmdlportal.com. Consistent with the court’s desire to move the cases along quickly and efficiently, it ordered that all PAQ’s for filed cases be submitted by Nov. 23, 2021.

The PAQ is mainly focused on two issues: the plaintiff’s medical diagnosis of Parkinson’s disease and the plaintiff’s paraquat exposure history. The PAQs will be key in providing an overview of each plaintiff’s exposure to paraquat and assisting the parties in potential selection of bellwether cases. The PAQ is also an excellent resource for client intake when working on their paraquat exposure history. During client intake, the exposure history should be as detailed as possible, including:

  • the state of exposure;
  • the type of crop;
  • the method of application (e.g., tractor, backpack sprayer);
  • the amount of product used per acre;
  • the amount of acres involved;
  • whether it was mixed with other products;
  • the average number of days per year of paraquat usage; and
  • any personal protective equipment (PPE) used.

Judge Rosenstengel is holding monthly status conferences via Zoom that are open to the public. The upcoming status conferences are set for Dec. 3, 2021, Jan. 7, 2022, and Feb. 4, 2022. A jury trial date is set for Nov. 15, 2022.

Beasley Allen lawyer Julia A. Merritt is a member of the Plaintiffs’ Executive Committee for the paraquat MDL. She will be happy to answer any questions about the status of this litigation. Beasley Allen lawyers in our Mass Torts Section are continuing to accept cases where clients applied paraquat and have Parkinson’s disease or Parkinson’s-like symptoms. Contact Julia A. Merritt if we can be of assistance to you in paraquat applicator cases. She can be reached at 800-898-2034 or by email at [email protected].

The Paraquat Litigation Team

We have a Paraquat Litigation Team at Beasley Allen consisting of lawyers in our Toxic Torts Section. This team is handling the paraquat cases. The lawyers on the team are Julia Merritt ( [email protected]), who heads the team, Trisha Green ( [email protected]), and Matt Pettit ( [email protected]). Rhon Jones ( [email protected]), who heads our Toxic Torts Section, is also working with the team on this important litigation. You can contact these lawyers by phone at 800-898-2034 or by email for more information on the litigation, including the MDL.

MASS TORTS LITIGATION

Johnson & Johnson Settles Risperdal Litigation For $800 Million

Johnson & Johnson (J&J) has settled liability claims involving Risperdal, its antipsychotic drug, for $800 million. The settlement agreed to in September resolves “substantially all of the outstanding cases in the United States.” The settlement agreement was revealed by the company in a Securities and Exchange Commission filing. The agreement resolves approximately 9,000 cases in which persons claimed Risperdal caused breast tissue development in males, a condition called gynecomastia. Risperdal was approved in 1993 for schizophrenia and bipolar mania in adults. In 2006, it was sanctioned to treat irritability in children associated with autism.

In 2019, a Philadelphia jury awarded $8 billion in punitive damages to Nicholas Murray, a Maryland man who developed breasts because of his use of Risperdal. The award was reduced to $6.8 million by the trial judge. Murray, who took Risperdal for autism spectrum disorder, claimed in his suit that J&J aggressively marketed the drug and failed to warn of its risks. That same year, J&J agreed to pay $2.2 billion to settle a federal investigation into its off-label marketing of Risperdal and two other drugs. Now J&J has settled all of the remaining cases pending around the country.

Source: Fiercepharma.com

Philips Respironics Recall Leaves Patients Untreated

Earlier this year, Philips Respironics recalled millions of its CPAP and BiPAP devices due to black debris in the devices’ air pathway. Even though Philips had previously received consumer complaints about the black debris, the company failed to take action until June 14, 2021.

The June recall stems from potential health risks associated with polyester-based polyurethane (PE-PUR) foam breakdown. The PE-PUR foam, used to reduce sound and vibration in the devices, may degrade and enter the device’s pathway, causing black debris. The person using the device may inhale or swallow the black debris or other chemicals in the device’s pathway.

The recall affects millions of devices manufactured between 2009 and April 26, 2021. The FDA classifies Philips’ recall as Class I, the most serious type of recall. Consumers are urged to register their device on Philips Respironics’ recall website (www.usa.philips.com/healthcare/e/sleep/communications/src-update) and immediately stop using the device. However, it’s being reported that many consumers have struggled to find replacement machines and are facing a virtually impossible situation. There is a significant safety risk. They must go without their recalled device and run the risk of dying in their sleep, or they can use the recalled machine and risk contracting cancer. For consumers who cannot afford to purchase an expensive, new sleeping device that does not contain PE-PUR foam, it truly is a Catch-22.

Beasley Allen lawyers continue investigating potential claims related to the recalled Philips devices where users have developed lung cancer, asthma, chronic respiratory injuries, or kidney disease. Consumers who may have been affected can contact Beau Darley ([email protected]) or Melissa Prickett ([email protected]) lawyers in our firm’s Mass Torts Section for more information.

Source: www.winknews.com

Walmart Room Spray Sold In Alabama Linked To 2 Deaths

The Centers for Disease Control and Prevention (CDC) has issued an alert for doctors to be on the lookout for a rare tropical disease linked to an aromatherapy spray sold at Walmart. The disease has been linked to two deaths. Better Homes and Gardens Aromatherapy Room Spray with Gemstones was recalled recently. Health officials found the spray tested positive for Burkholderia pseudomallei, the bacteria that causes melioidosis. Two deaths – one in Georgia and another in Kansas – have been linked to the spray. Cases have also been reported in Minnesota and Texas.

The CDC tested Better Homes & Gardens Lavender & Chamomile Essential Oil Infused Aromatherapy Room Spray with Gemstones. Further investigation is also being conducted on five other scents under the same brand: Lemon & Mandarin, Lavender, Peppermint, Lime & Eucalyptus and Sandalwood & Vanilla. All of the products were made in India. The spray was sold online nationwide at select Walmart locations from February – Oct. 21. Four Walmart stores in Alabama listed below sold the spray:

  • Store 670, 626 Olive Street SW in Cullman
  • Store 766, 3100 Hough Road in Florence
  • Store 809, 92 Plaza Lane, Oxford
  • Store 715, 1501 Skyland Blvd., Tuscaloosa

An alert sent to healthcare providers said doctors should be on the lookout for symptoms of melioidosis. Doctors should ask patients if they have come in contact with the room sprays, including being in the room when the product was sprayed, “sniffed” the bottle or had direct contact with the spray, such as if it was used on linens or pillowcases.

Symptoms vary but can include infections resulting in ulcers or skin abscesses; high fevers, headaches, chest pain, anorexia and muscle soreness; bloodstream infections; headaches, seizure and extreme weakness. It’s recommended that, if you have the product, you should:

  • Stop using the product immediately.
  • Do not open the bottle.
  • Do not throw away or dispose of the bottle in the regular trash.
  • Double bag the bottle in clean, clear zip-top bags and place in a small cardboard box.
  • Wash sheets or linens that the product may have been sprayed on using normal laundry detergent and dry completely in a hot dryer; bleach can be used if desired.
  • Wipe down counters and surfaces that might have the spray on them with undiluted Pine-Sol or similar disinfectant.
  • Limit how much you handle the spray bottle and wash hands thoroughly after touching the bottle or linens. If you used gloves while handling the bottling or cleaning, wash hands afterward.

Any person who has used the product within the past 21 days and has a fever or other melioidosis symptoms should seek medical care and be sure to tell their doctor they were exposed to the spray.

Source: AL.com

EMPLOYMENT AND FLSA LITIGATION

Snyder’s-Lance Companies To Pay $6 Million To Settle Misclassification Suit

S-L Distribution Company, LLC and related companies (S-L) have agreed to pay $6 million to a proposed class of 300 Independent Business Owners (IBOs) to settle their claims that the company misclassified them as independent contractors and failed to pay them minimum wage and overtime pay in violation of the Fair Labor Standards Act (FLSA). The proposed class members will receive an average payment of $11,500 per member.

IBOs work for S-L delivering Snyder’s-Lance snack foods to retail stores. The IBOs filed the proposed collective and class action lawsuit in March 2018, alleging the IBOs signed contracts with the company to buy snacks at wholesale rates and sell them to stores along designated routes. However, the IBOs contend they didn’t have the autonomy associated with being independent contractors. S-L, therefore, owed them minimum wage and overtime pay under the FLSA. Independent contractors don’t receive certain legal protections and benefits mandated for employees, such as minimum wage and overtime pay.

This is just one example of labor abuses that occur daily in our country. The law provides protections for these types of wage and hour violations, but it requires courageous employees to come forward and challenge their employers who are violating the labor laws.

Source Law360.com

Beasley Allen Handles Employment Cases

Our firm has dedicated a portion of our law practice to helping victims of labor law abuse. Beasley Allen lawyers in our Consumer Fraud & Commercial Litigation Section pursue litigation on behalf of employees against employers in all industries. Every person deserves to be compensated for what they provide in the workplace and to be treated fairly and justly. Upholding the laws and the rights those laws bestow to individuals benefits every worker. Our firm welcomes any opportunity to investigate such practices. Contact Lance Gould, Larry Golston, Leon Hampton or Lauren Miles in our Consumer Fraud & Commercial Litigation Section concerning any employment issues. They can be reached at 800-898-2034 or by email at [email protected], [email protected], [email protected] or [email protected].

PREMISES LIABILITY LITIGATION

Beasley Allen Files Lawsuit Against Church Over Sex Abuse At Summer Camp

In what can only be described as a tragic and heart-breaking case, Beasley Allen Atlanta lawyer Parker Miller filed a lawsuit on behalf of a family and the family’s child who was sexually abused at a summer camp in Atlanta in 2018. The lawsuit was filed in Fulton County State Court against West End Family Life and Community Center, Inc. (WEFLCC) and the South Atlantic Conference of Seventh-day Adventist, Inc. (SACA). These defendants owned, operated and were responsible for the camp. Also, the predator and purported camp counselor was named a defendant and allowed to victimize this child. Joining Parker in the case is co-counsel Anita Lamar of the Lamar Law Office. Parker had this to say when filing the case:

If you were to close your eyes and try to imagine a worse scenario than this one, I am not sure you could do it,” Miller said. “As a parent, I am appalled by what we believe took place here, and frankly, I cannot comprehend what this poor child and her family have been through.

Co-counsel Anita Lamar added these comments:

This brave, young child dared to speak out, and we will stand beside this family. We will help her find answers and work to hold accountable all the adults who failed this child. This situation is unimaginable, and we hope our efforts will encourage other victims to come forward.

It’s stated in the lawsuit that an agent or employee of the camp “repeatedly raped and sexually abused” the child “[a]pproximately, if not precisely, for numerous weeks throughout June to July 2018 during the Bible camp. The unlawful conduct occurred in a classroom located inside the community center during camp hours. Other adult defendants employed by the named defendants to operate the camp “knew or should have known” about the perpetrator’s behavior and the potential to victimize other minors attending the camp. It’s alleged in the lawsuit that the defendants:

  • failed to warn the child’s guardians of the dangerous conditions or persons who had access to children at the camp;
  • properly vet and follow up on all counselors given access to minors;
  • failed to conduct reasonable inspections and perform continued oversight and supervision of the program and staff; and
  • failed to train all employees with oversight responsibility.

Ultimately, the defendants negligently failed to operate this camp safely and protect this child from an extremely dangerous situation. Considering this camp took place in conjunction with a religious institution, it is the last place a parent would suspect a dangerous sexual predator. The predator was allowed to remain at this camp and terrorize this child for weeks with no oversight or supervision.

In this lawsuit, we seek complete accountability for the physical injuries and trauma that will likely haunt this child and her family for the rest of their lives.

In March, the Atlanta Police Department arrested the person affiliated with the camp, alleged to be responsible for raping the minor child. The man was charged with aggravated sodomy, sexual assault by persons with supervisory or disciplinary authority, child molestation, sexual battery of a minor, aggravated child molestation and cruelty to children in the first degree. The police confirmed they are investigating two other males employed by the church who may have been involved or failed to protect the child from the alleged perpetrator. Public reports of the investigation now reveal that multiple children were victims of this predator.

Parker Miller is an acclaimed and dedicated litigator in our Personal Injury & Products Liability Section, having litigated some of the most significant litigation in the nation over the last decade. He has tremendous expertise in major premises liability and negligent security cases and is handling numerous cases throughout Georgia and in other states across the nation.

For more information relating to these cases or premises liability generally, contact Parker at 800-898-2034 or by email at [email protected].

The case, Smith v. West End Family Life and Community Center Inc., et al., is filed in the State Court for Fulton County, Georgia, case number 21EV007045.

Georgia Judges Affirm Shooting Victim’s $45 Million Verdict Against CVS

The Georgia Court of Appeals has affirmed a $45 million verdict in a premises liability case against CVS. The case involved the shooting of a man at a CVS pharmacy in a high-crime part of Atlanta. The court said the robbery incident was reasonably foreseeable. The three-judge appellate panel denied Georgia CVS Pharmacy LLC’s attempt to reverse the trial court’s judgment. A jury found the company 95% liable for the permanent and severe injuries of James Carmichael, an Alabama resident, shot multiple times during a robbery at a CVS on Moreland Avenue in Atlanta in late 2012 by an unknown assailant.

CVS appealed the jury’s verdict and the trial court’s denial of its motion for a new trial, arguing there was insufficient evidence to show CVS caused Carmichael’s injuries or had superior knowledge of the danger at its Moreland Avenue location. But the appellate judges said many Moreland Avenue CVS employees had testified about unsafe conditions at the store, including a lack of security and poor lighting, as well as three violent robberies that occurred there within the two years before Carmichael’s shooting. The panel said:

There was ample evidence from which a reasonable jury could conclude that the robbery of Carmichael was reasonably foreseeable to CVS. Three employees testified that they were ‘not surprised’ that Carmichael was shot on the premises.

The appellate judges held that Carmichael was largely unaware of the danger at the pharmacy and that increased lighting or a security guard presence could have deterred the attack. They said Carmichael was in the store’s parking lot to sell electronics to an acquaintance, as he had done many times before at other locations without incident.

In Georgia, a premises liability claim must show that the defendant had knowledge of the hazard and that the plaintiff lacked knowledge of the danger despite the exercise of ordinary care. An intervening criminal act by a third party generally insulates a landowner from liability unless the criminal act was reasonably foreseeable. The panel pointed out that:

  • Female staff at the Moreland Avenue CVS were often walked to their cars by male colleagues because the parking lot was deemed unsafe.
  • Employees parked close to the store due to “spotty lighting,” and two workers rated the store’s safety problems as 8 and 9 out of 10.
  • The pharmacy had security guards before 2010 when they were removed.
  • CVS ignored employees’ requests for security after that, the judges said.
  • A Moreland Avenue CVS cashier was robbed at gunpoint in February 2011.
  • A customer was robbed in the store’s parking lot in June 2012.
  • A shift manager was robbed at gunpoint in November 2011.
  • CVS was made aware of the incidents and was asked by workers to provide security.

Carmichael’s expert testified that armed security and proper lighting deterred crime, which a corporate representative of CVS agreed to at trial.

CVS was the only named defendant at trial in Carmichael’s case. The jury’s $45 million verdict was adjusted to reflect Carmichael’s 5% fault in the case. CVS, found 95% liable, was ordered to pay Carmichael $42.7 million.

Plaintiff Carmichael is represented by Naveen Ramachandrappa and Michael B. Terry of Bondurant Mixson & Elmore LLP, Peter A. Law and Brian C. Kaplan of Law & Moran Attorneys at Law, and James A. Rice Jr. and Andrew J. Brandt of James A. Rice Jr. PC.

The case is Georgia CVS Pharmacy LLC v. James Carmichael (case number A21A0677) in the Georgia Court of Appeals.

Source: Law360.com

WORKPLACE HAZARDS

Beasley Allen Files On-The-Job Product Liability Lawsuit Against Koch Foods

Kendall Dunson, a lawyer in our firm’s Personal Injury & Products Liability Section, has filed a lawsuit against Koch Foods of Alabama on behalf of the family of a line worker who was severely injured and ultimately died after an accident at the chicken processing plant. The lawsuit was filed four years after Beasley Allen secured a $1.8 million verdict for another Koch Foods’ worker severely injured on the job.

When Alabama workers are injured on the job, companies are bound by the state’s Workers’ Compensation Act to provide death benefits to their families. When employers fail to protect a worker, an experienced attorney can help the worker’s family get the benefits to which they are entitled.

The accident occurred on March 9, 2021, when Robert M. Lewis’ clothing became trapped in the rotating shaft of a piece of line equipment he was cleaning at the processing plant. Unable to free himself from the hazard, Robert was seriously injured and subsequently died from his injuries.

Under the Workers’ Compensation Act of Alabama, the employee’s wife, Sharon Frazier, is entitled to death benefits. When controversy arose regarding those benefits, and no settlement was reached between Koch Foods and the family. Robert’s family hired Kendall to investigate the death.

The lawsuit by the Lewis family seeks Workers’ Compensation Death Benefits from Koch Foods. The lawsuit also claims the machinery Robert was cleaning was unreasonably dangerous and defective and created an unreasonable risk of severe injury or death to its intended users. The suit also includes claims against the original manufacturer and distributor of the equipment responsible for Robert’s death.

This isn’t the first time an employee at the Koch Foods plant has been seriously injured on the job. In April 2014, Leon Battle was performing a simple adjustment to a hydraulic hose on a chicken cage moving machine when a mishap with the safety feature resulted in the amputation of Leon’s four fingers. While completing the process for obtaining workers’ compensation, Leon was allowed to return to work under the condition that he would not hire a lawyer.

Given the extent of his injuries, Leon decided to hire Beasley Allen to investigate his claim. When Koch Foods discovered Leon had contacted a lawyer, the company immediately terminated Leon, a blatant act of retaliation against the worker for seeking the workers’ compensation benefits which were rightfully his. In October 2017, Beasley Allen secured a more than $1.8 million verdict for Leon.

The verdict was significant because it held an employer responsible for retaliating against a worker injured on the job and who was pursuing his constitutional right to hire legal counsel to assist him in pursuing claims against culpable defendants. The verdict also proves that every worker deserves fair compensation when a company’s negligence results in serious injuries or death.

The current case, Lewis v. Koch Foods of Alabama, LLC, is filed in the Circuit Court of Montgomery County, Alabama, case number 03-CV-2021-901184.00. If you need more information, contact Kendall Dunson, a lawyer in our Personal Injury & Product Liability Section, at 800-898-2034 or by email at [email protected].

Securities Litigation

Uber Investors Class Action Suit Over ‘Train Wreck’ IPO Ongoing

Investors have asked a California federal judge to certify their consolidated class alleging ride-hailing giant Uber Technologies Inc. duped shareholders about numerous corporate scandals, overhyped its business prospects and downplayed risks ahead of its May 2019 initial public offering.

Boston Retirement System, the pension fund for Boston’s city employees, and individual investors filed a revised motion with U.S. District Judge Richard Seeborg in October to spearhead classwide claims that Uber’s various missteps and misrepresentations led to an $8.1 billion debut that amounted to a “train wreck” for hundreds and likely thousands of investors.

According to the motion, “far more than forty — the minimum presumptive threshold — geographically dispersed investors acquired 180 million shares pursuant and/or traceable to the offering documents for Uber’s IPO.” They also argued that “commonality is established because the primary inquiry in this action — that the offering documents contained material misstatements and omissions — presents common issues of law and fact that are subject to common proof,” according to the revised motion.

After years of hype, Uber made what analysts described as a disappointing debut in May 2019, selling 180,000 shares of common stock priced at $45 apiece. Its share price slid in the months that followed, and the company continues to report quarterly losses in the millions. After the IPO, shares dropped “[a]s a result of the false and misleading statements and omissions in the offering documents concerning Uber’s business model, passenger safety, and financial condition” investors said.  On the day the lawsuit was filed, Uber’s common stock was trading at $29.67 per share – 34% lower than the offering price.

The proposed class is defined as “all persons and entities that purchased or otherwise acquired Uber’s publicly traded common stock pursuant and/or traceable to the offering documents for Uber’s IPO, and who were damaged thereby.”

The revised class certification motion comes weeks after Judge Seeborg denied Uber’s bid to dismiss from the suit several individual investors whose claims were consolidated with BRS’ in this action. The motion, filed in October, seeks to have some of these individual investors appointed as class representatives.

Lead plaintiff BRS had initially moved for class certification in September 2020 after Judge Seeborg rejected earlier dismissal bids from Uber, its executives, board of directors and its underwriter banks. The judge determined in August 2020 that the complaint contained enough specifics alleging that Uber’s offering documents and public statements in the run-up to its IPO might have misrepresented the business to investors.

For example, in his August 2020 order, Judge Seeborg noted that the “risk factors” section of Uber’s registration statement listed numerous potential scenarios that might affect Uber’s prospects if they materialized, but it didn’t suggest that any of those scenarios already existed.

The investor plaintiffs have alleged that Uber’s path to its IPO was “scarred by scandal,” and Uber falsely boasted about its regulatory compliance and overall financial health while downplaying rampant mismanagement, highly publicized sexual harassment claims a toxic work culture and other illicit dealings. Unbeknownst to investors, Uber and its top brass premised the company’s growth on an undisclosed, unsustainable and often illegal “growth at any cost” business model, putting growth first above profits, the law, and even the safety of riders, according to the investor plaintiffs. BRS also laid out a laundry list of grievances regarding Uber’s disclosures, but the San Francisco-based ride-hailing giant said it made express and candid disclosures.

The case is Boston Retirement System et al. v. Uber Technologies Inc. et al. (case number 3:19-cv-06361) in the U.S. District Court for the Northern District of California.

Our firm has a team of securities lawyers who investigate and file cases similar to the above-described case. If you have any questions about securities and / or other investment issues, please feel free to call upon our team of lawyers Demet Basar at [email protected], James Eubank at [email protected] or Paul Evans at [email protected].

Source: Law360.com

$44.75 Million Class Settlement Approved In Alon-Delek Merger Suit

A settlement has been reached in the Alon USA Energy Inc. stockholder case seeking a better price from the company’s 2017 merger with Delek US Holdings. The $44.75 million settlement was approved in Delaware Chancery Court by Chancellor Kathaleen S. McCormick.

Delek is a downstream energy company with assets in petroleum refining, storage, transportation, wholesaling and retailing. Dallas-based Alon markets petroleum and asphalt products, owns oil refineries, and operates hundreds of 7-Eleven convenience stores and gas stations. The class includes those who held Alon common stock anytime between Jan. 3, 2017, when Delek and Alon announced their merger agreement, and July 1, 2017, when the merger closed.

Chancellor McCormick noted class lawyers logged more than 13,000 hours on the case and had analyzed more than 670,000 pages of documents. Stockholders originally filed suit in June 2017 after the announcement of the merger. As the case was headed for trial, which was set for June 2021, the parties were, at that time, participating in settlement negotiations with a mediator. The parties reached a settlement recommended by the mediator in May.

Alon was valued at about $868 million in the settlement agreement and became a wholly-owned subsidiary of Delek. The suit accused Alon, its directors and Delek of violating an agreement that waived a Delaware corporation law imposing a three-year takeover standstill for investors when they acquire 15% or more of a company’s equity, along with fiduciary duty breaches and disclosure failures.

Alon’s waiver retained a one-year anti-takeover standstill. But Delek, which owned 48% of Alon at the time, was accused of violating even the shorter prohibition shortly after its approval and moving to buy the remaining 52% of Alon while pressing Alon to reduce its original price.

Then-Vice Chancellor McCormick described the takeover standstill breach allegation as a “less customary” claim in a June 2019 opinion on Delek’s motion to dismiss. That decision rejected Delek’s claims that stockholders were “third parties” and had not adequately alleged standing to enforce the waiver or move it toward trial.

The settlement ends litigation between the Arkansas Teacher Retirement System as leader of the proposed stockholder class and Alon, along with its directors and controlling stockholder Delek. The class certified by the court holds 31,920,518 shares of Alon stock and will split the balance of the award after payment of fees and costs.

Arkansas Teacher Retirement System is represented by Michael Hanrahan, Corinne Elise Amato, Kevin H. Davenport, Eric J. Juray and Xi (Elizabeth) Wang of Prickett Jones & Elliott PA, Lee D. Rudy, J. Daniel Albert, Justin O. Reliford and Grant D. Goodhart III of Kessler Topaz Meltzer & Check LLP and John Goodson and Amy Martin of Keil & Goodson PA.

The case is Arkansas Teacher Retirement System v. Alon USA Energy Inc. et al. (case number 2017-0453) in the Court of Chancery of the State of Delaware.

Source: Law360.com

$14.9 Million Settlement Reached In Oil Company Securities Suit

Investors and PricewaterhouseCoopers Auditing Company SA are seeking preliminary approval of a $14.9 million partial settlement to resolve claims against PwC Greece in a suit that accuses marine fuel company Aegean Marine Petroleum Network Inc. and its executives of distorting the company’s accounts receivable by $200 million.

In addition to a cash payment of $14.9 million, PwC Greece has agreed to cooperate in the case and produce certain documents as the litigation against the various non-settling defendants continues. The investors filed suit against Aegean in June 2018, accusing the company and its executives of orchestrating a “massive fraudulent scheme” that cost Aegean at least $300 million through a combination of “sham deals, asset overvaluation and a $100 million stock buyback” that benefited billionaire Aegean founder Dimitris Melissanidis. PwC Greece was named a defendant since it provided auditing services to Aegean during the relevant time.

Aegean is now a subsidiary of Mercuria Energy Group Ltd. As part of the settlement, PwC Greece has agreed to produce a “complete and final set” of audit documentation in connection with its “integrated audit of the consolidated financial statements and ICFR of Aegean for the fiscal year ended December 31, 2016.” Aegean filed for Chapter 11 bankruptcy in November 2018, and its reorganization was approved in March 2019.

The settlement, if approved, will not affect any claims against the remaining defendants, which include Melissanidis and Deloitte Certified Public Accountants SA. The investors are requesting certification of the class for settlement purposes only. The class is defined as those who purchased or acquired Aegean Marine Petroleum Network Inc. securities between Feb. 27, 2014, through Nov. 5, 2018.

There is also the possibility of recoveries by judgment or settlement that could arise from the suits against the remaining defendants. Class members would receive recovery in this settlement on a pro rata basis. The allocation plan is based on an analysis of the amount of artificial inflation in the price of Aegean securities at various times during the class period.

The investors are represented by Christopher T. Heffelfinger, Joseph J. Tabacco Jr., Nicole Lavallee, A. Chowning Poppler and Jay W. Eng of Berman Tabacco. PricewaterhouseCoopers S.A. is represented by Christopher Davies of WilmerHale.

Source: Law360.com

The SEC Revives Abandoned Proposed Rules For Clawing Back Executive Compensation

On October 14, 2021, the Securities and Exchange Commission reopened the comment period on proposed rules requiring executives at publicly traded companies to pay back certain bonuses and other incentive-based compensation in the event of an accounting restatement, regardless of whether they were at fault. The SEC first issued the proposed rules, which were required under the 2010 Dodd-Frank Act, belatedly in 2015, after facing pressure from advocacy groups and members of Congress, but the effort was stalled.

Congress first mandated executive clawbacks under the Sarbanes-Oxley Act of 2002, which required chief executives and chief financial officers to return incentive-based pay in instances where misconduct occurred during the previous year. In the 19 years since it was enacted, the SEC has only brought legal proceedings to enforce  the provision against 79 CEOs and CFOs from 52 corporations, and only against 18 officers in the last five years, despite having hundreds of other opportunities to do so.

Under the proposed rules, recovery would be required from current and former executives who received incentive-based compensation during the three fiscal years leading up to when the company is required to prepare an accounting restatement to correct a material error in its reported financial statements. The recovery will be on a “no fault” basis such that affected executives need not be responsible for the misstated financial statements. Covered executives include a company’s president, principal financial officer, principal accounting officer, any vice-president in charge of a principal business unit, division other unction, and any other person who performs policy-making functions, according to the plan.

Under the SEC’s proposal, national securities exchanges and associations must prohibit the listing of any security of a company that doesn’t develop and implement a policy for recovering erroneously awarded compensation.

Gary Gensler, Chair of the SEC, said reopening the proposal is “an opportunity to strengthen the transparency and quality of corporate financial statements, as well as the accountability of corporate executives to their investors.”  Not surprisingly, corporate representatives have already decried the proposed rule as a radical change in the use of clawbacks by exchange-listed companies against their executives, and claim it would be disruptive in the management of corporations.

The agency is also considering expanding the scope of the proposal and comment on questions raised the agency’s opening release. One question is whether clawbacks should be triggered not only by accounting restatements that correct errors that are material to previously issued financial statements but also by restatements that correct errors that  would result in a material misstatement if left uncorrected in the current reporting period or if the correction was recognized in the current period, which could significantly expand the scope of the rule if adopted. Another question is whether the agency should remove a proposed “reasonably should have concluded” standard for determining that an issuer’s previously issued financial statements contain a material error, a standard SEC notes may add uncertainty to the determination.

The comment period on the proposed rule closed on November 22, 2021. Comments are posted on the SEC’s website ( www.sec.gov/rules/proposed.html). If the SEC decides to move forward with the proposed rule, there is another opportunity for comment before the final rule is issued.

If you need more information contact Demet Basar, a lawyer in our Consumer Fruad & Commercial Litigaiton Section, at 800-898-2034 or by email at [email protected].

TOXIC TORT LITIGATION

North Carolina Sues 3M Over Firefighting Foams

North Carolina has filed suit against 3M Co, DuPont de Nemours Inc. and other manufacturers of firefighting foams over claims that the products contain toxic chemicals that contaminated the state’s groundwaters. In separate lawsuits filed in three North Carolina counties, Attorney General Josh Stein alleged that the companies knew they were risking harm to the environment and human health by marketing and selling foam products containing perfluoroalkyl and polyfluoroalkyl substances, or PFAS.

The lawsuits, filed on Nov. 4, ask the courts to order the 14 manufacturers to investigate, clean up and monitor the alleged contamination at the Charlotte-Douglas International Airport, the Seymour-Johnson Air Force Base, another air base and a police and firefighting training site. The complaints also seek punitive and other damages.

Attorney General Stein’s involvement adds to a growing list of state attorneys general suing manufacturers of PFAS, which have been used for decades in manufacturing nonstick coatings such as Teflon. As we have previously reported, scientists have associated some PFAS (forever chemicals) with illnesses such as kidney cancer because the chemicals don’t break down easily.

The cases are State of North Carolina v. The 3M Co., Mecklenburg County Superior Court (Nos. 21-cvs1-17620), (21cvs-17621); State of North Carolina v. The 3M Co., Wayne County Superior Court (No. 21-cvs-51937); and State of North Carolina v. The 3M Co., Stanly County Superior Court (No. 21-cvs-845). Daniel Hirschman with the North Carolina Department of Justice and Robert Bilott of Taft Stettinius & Hollister represent the State of North Carolina.

Source: Reuters

$13 Million Verdict In 3M Earplug Trial

A Florida federal jury last month found in favor of U.S. Army Sgt. Guillermo Camarillorazo and against 3M in an earplug trial. The plaintiff’s hearing loss was caused by faulty combat earplugs. The jury awarded the plaintiff more than $13 million — the largest amount so far — in the latest bellwether trial in military members’ multidistrict litigation (MDL) over the earplugs. The Tallahassee jury awarded the plaintiff $816,395 in compensatory damages and $12.245 million in punitive damages, marking it the largest win so far for one of the roughly 250,000 plaintiffs in the MDL over damage allegedly stemming from the CAEv2 earplugs made by Aearo Technologies LLC, a company that 3M acquired.

It’s contended in the cases that 3M and Aearo supplied CAEv2 earplugs that were defective and did not protect against service-related tinnitus and hearing loss. 3M argues that the military bears some responsibility for how the earplugs were designed and delivered. In the five previous bellwether trials, the plaintiffs won three, including a $7.1 million verdict in April in a three-plaintiff trial, a $1.7 million win in June, and another victory in October that ended in an $8.2 million award. 3M received a defense verdict in the second and fifth trials, each ending in defense verdicts.

Plaintiffs’ lead counsel in the MDL are Chris Seeger of Seeger Weiss LLP, Bryan Aylstock of Aylstock Witkin Kreis & Overholtz PLLC and Shelley Hutson of Clark Love & Huston PLLC.

Camarillorazo is represented by Keith M. Jensen PC, Andre M. Mura of Gibbs Law Group LLP, Jennifer M. Hoekstra and Neil D. Overholtz of Aylstock Witkin Kreis & Overholtz, Buffy K. Martines, Richard N. Laminack and Thomas W. Pirtle of Laminack Pirtle & Martines, Emily B. Marlowe of Clark Love & Hutson PLLC, Jonathan M. Sedgh, Panagiotis V. Albanis, Paul J. Pennock and Joshua Michael Autry of Morgan & Morgan PA and Katherine L. Cornell of Pulaski Kherkher PLLC.

The case is Camarillorazo v. 3M Co. et al. (case number 7:20-cv-00098) in the U.S. District Court for the Northern District of Florida. The MDL is In re: 3M Combat Arms Earplug Products Liability Litigation (case number 3:19-md-02885) in the same court.

Source: Law360.com

$626 Million Flint Water Settlement Approved

A Michigan federal judge has given final approval to a $626 million settlement over the Flint water crisis. Numerous objections to the settlement agreement were rejected. The settlement will provide payments to more than 100,000 people affected by the contaminated water. U.S. District Judge Judith Levy approved the settlement, noting that the number of objectors is “exceedingly small” when compared to the “overwhelming” number of people who haven’t objected.

Under the settlement agreement, payments will be made by the involved parties as follows:

  • The state of Michigan will pay $600 million;
  • Flint will pay $20 million; and
  • McLaren Flint Hospital will pay $5 million.

Judge Levy gave preliminary approval to the settlement in January, saying it is a partial settlement that doesn’t end the litigation over the lead-tainted water. The judge said the settlement with Michigan and others provides a mechanism for tens of thousands of minors, injured adults, property owners and renters, who paid Flint water bills and affected business owners to receive monetary awards. Judge Levy wrote in the order:

The settlement reached here is a remarkable achievement for many reasons, not the least of which is that it sets forth a comprehensive compensation program and timeline that is consistent for every qualifying participant, regardless of whether they are members of a class or are non-class individuals represented by their own counsel.

The settlement, which was initially announced in August 2020, resolves claims against Michigan officials in state and federal court. The officials, including former Gov. Rick Snyder, were accused of switching the source of Flint’s water, despite information cautioning them against doing so. They were also accused of concealing the public health emergency that stemmed from lead-tainted water flowing into the homes of the mostly minority community and failing to act to fix it.

The case is In Re: Flint Water Cases (case number 5:16-cv-10444) in the U.S. District Court for the Eastern District of Michigan.

Source: Law360.com

The ONGOING Roundup Litigation

$87 Million Roundup Verdict Left In Place

The California Supreme Court has refused to hear Monsanto’s request to overturn an $87 million award to a couple who claim the Roundup weedkiller produced by the Bayer AG subsidiary caused their cancer. The court let stand what was the third Bayer loss in trials over the Roundup product.

Jurors found in 2019 that Roundup was more likely than not a contributing factor that caused the plaintiffs to develop non-Hodgkin lymphoma. The jury awarded the plaintiffs $2 billion in damages, later reduced to $87 million. The company appealed the decision, but in August 2021, a California appellate court rejected its bid, describing its opening brief as bearing “little resemblance to the trial reflected in the record.”

The plaintiffs are represented by Michael J. Miller, Jeffrey A. Travers and Curtis G. Hoke of the Miller Firm LLC, Steven J. Brady of the Brady Law Group, Mark S. Burton of Audet & Partners LLP and Pedram Esfandiary of Baum Hedlund Aristei & Goldman LLP.

The case is Pilliod et al. v. Monsanto Co. (case number S270957) in the Supreme Court of California.

Source: Law360.com

Beasley Allen Roundup Litigation Team

Beasley Allen lawyers represent 3,500 clients who have been exposed to Roundup and developed non-Hodgkin’s lymphoma. For more information, contact Rhon Jones, who heads our Toxic Torts Section and is in charge of this litigation. William Sutton, a lawyer in our Toxic Torts Section, is also a litigation team member. They can be contacted at 800-898-2034 or by email at [email protected] or [email protected].

Class Action Litigation

USFL Settlement Receives Final Approval

On Oct. 25, 2021, Judge Matthew W. McFarland of the United States District Court for the Southern District of Ohio gave final approval to the settlement reached between US Financial Life Insurance Company and a class of nearly 12,000 policyholders. The settlement provides cash payments and valuable injunctive relief to policyholders and is valued at over $28 million.

Plaintiff Vivian Farris, as trustee for the Wirt Adams Yerger, Jr. Legacy Trust, filed the class action lawsuit in June of 2017, asserting claims for breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, conversion, and fraudulent misrepresentation, all stemming from her allegations that USFL unjustifiably increased the cost of insurance (COI) rates on Nova and Supernova universal life products beginning August 31, 2015.  This impacted approximately 11,891 policies.

For over five years, USFL vigorously argued that the increases were due to poor mortality experience and permitted under the policies. The plaintiff maintained that there was no such increase in mortality rates and the COI increases were unjustified.

After years of discovery and motion practice, and nine months of negotiation between the parties, a settlement was reached.  Specifically, the settlement provides that USFL will pay $11.5 million to create a Common Settlement Fund, to be distributed by checks to class members on a pro rata basis, depending on the portion of COI charged to each class policy after the 2015 rate increases went into effect.  No class member will receive less than $100.

Additionally, USFL has agreed not to impose any COI rate increases on the class members’ policies for five years. Nor will USFL seek to void, rescind, cancel, have declared void, or otherwise deny coverage or death claims submitted by settlement class members based on any alleged lack of insurable interest or misrepresentations made in connection with the original application process.

In total, the collective value of the proposed settlement benefits is between $26,143,000 and $29,071,600. This total value is comprised of the $11.5 million Common Settlement Fund and the valuation of the other relief detailed above, reasonably valued between $14,643,000 and $17,571,600, which is supported by formal and informal discovery as well as valuations by the plaintiff’s experts.

Beasley Allen lawyers Dee Miles, Rachel Minder, and Paul Evans were named by the Court as Lead Class Counsel, and they, along with local counsel Jeffrey S. Goldenberg and Todd B. Naylor of Goldenberg Schneider, L.P.A., have vigorously represented the class of policyholders. Our firm is proud to represent these policyholders and pleased with the relief they obtained in this class action settlement. The case was a hard-fought battle with worthy advocates opposing our class, but the case was resolved with very good relief and benefits to the class members.

For any information on this proposed settlement, contact our Consumer Fraud & Commercial Litigation Section Head Dee Miles at [email protected], Rachel Minder at [email protected], or Paul Evans at [email protected], or by telephone at 1-800-898-2034.

Source: Farris v. U.S. Financial Life Insurance Co., No. 1:17-cv-417 (S.D. Ohio filed June 19, 2017).

$690 Million Award To Investors In Case Against Loews Corp.

Delaware’s Chancery Court has awarded former unitholders of Boardwalk Pipeline Partners LP $689.8 million plus interest in their class action lawsuit against Loews Corp. over a $1.5 billion public-unit buyout. In his order, Vice Chancellor Travis J. Laster found that management and other agents of Loews, which formed Boardwalk in 2005 and indirectly controlled its general partner, breached the Boardwalk partnership agreement in 2018 by orchestrating a “sham” trigger of the general partner’s right to buy back the partnership’s interests.

Vice Chancellor Laster wrote What Loews, which has businesses in the insurance, energy, hospitality, and packaging sectors, touted as the deal’s $1.5 billion “value creation” was generated by a misleading opinion that counsel issued regarding the general partner’s tax status. The general partner exercised its call right at $12.06 per unit, but it should have been $17.60, the vice chancellor concluded. He wrote: “Loews achieved this remarkable result because its in-house legal team and outside counsel worked hard to generate a contrived opinion.”

Hedge fund Bandera Master Fund LP and an affiliated fund filed suit in February 2019 over the 2018 transaction, contending that the disclosures leading up to it had been a deliberate effort to drive down Boardwalk’s stock price for Loews’ benefit to the detriment of Boardwalk’s minority unitholders.

Bandera Master Fund LP and Boardwalk Pipeline unitholders are represented by A. Thompson Bayliss, J. Peter Shindel Jr., Daniel G. Paterno, Eric A. Veres and Samuel D. Cordle of Abrams & Bayliss LLP.

The case is Bandera Master Fund LP et al. v. Boardwalk Pipeline Partners LP et al. (case number 2018-0372) in the Court of Chancery of the State of Delaware.

Source: Law360.com

Apple’s $95 Million Settlement In Suit Over Warranties Gets Initial Approval

U.S. District Judge William H. Orrick has granted preliminary approval to a $95 million class action settlement resolving consumers’ claims that Apple Inc. failed to honor its warranties by replacing broken iPhone and iPad devices with “remanufactured” units that were not as good as new ones.

The consumers sued Apple in 2016, alleging it failed to fulfill its obligations spelled out under the AppleCare and AppleCare+ warranties’ terms and conditions, in which the company promises “new or equivalent to new” devices and parts replacements.

The court was told by the class representatives that after administrative costs, incentive awards and attorney fees and costs, between $63 million and $68 million would go to class recovery.

The customers are represented by Steve W. Berman, Robert B. Carey, Michella A. Kras and Renee F. Kennedy of Hagens Berman Sobol Shapiro LLP.

The case is Maldonado et al. v. Apple Inc. et al. (case number 5:16-cv-04067) in the U.S. District Court for the Northern District of California.

Source: Law360.com

Settlement Reached In Defective Whirlpool Dishwasher Class Action

A proposed class of consumers reached a settlement agreement with Whirlpool Corp. over leaky dishwashers in November. Those dishwashers include certain Jenn-Air, Kenmore, KitchenAid, Ikea, Amana and Whirlpool brands made between January 2010 and December 2017.

Under the settlement terms, class members who can show that they paid out of pocket to repair or replace their dishwasher because of a seal leak within eight years of the appliance’s manufacture will be reimbursed by Whirlpool for up to $225.

According to an amended complaint filed in August, Whirlpool has made marketing boasts since at least 2015 about the durability of its high-quality dishwashers and said they have an expected life span of 10 years. Those dishwashers cost $500 to $700, consumers said.

However, the alleged defect in the dishwashers resulted in leaks “flowing out of the dishwasher to areas below and surrounding the dishwasher, exposing consumers to unexpected water leaks and damage to cabinetry, flooring and other property” the consumers said. The consumers said:

The way the dishwasher’s sump pump is designed exposes the seal to hot soapy water and debris.  As the debris builds and the seal degrades, water begins to leak between the sump and the tub, eventually leaking through the entire unit and onto floors and inside cabinetry.  Whirlpool knew about the alleged defect for at least eight years but denied its existence and put the burden of fixing the defect on consumers. Whirlpool’s conduct is particularly egregious considering that the cost of the defective replacement parts and associated labor are more than 1/3 of the cost of the original dishwasher. Whirlpool’s conduct is deceptive, unfair and unconscionable.  The average cost to repair a seal leak is $225.

The settlement is valued at about $15.71 to $21.33 million, according to court filings.

The case is Cleveland v. Whirlpool Corp. (case number 0:20-cv-01906) in the U.S. District Court for the District of Minnesota.

Two Sun Pharma U.S. Units To Pay $85 Million In Generic Drugs MDL

Two U.S. subsidiaries of the Indian drugmaker Sun Pharma have agreed to pay a combined $85 million to settle a proposed class action by direct purchaser plaintiffs in a sweeping multidistrict litigation over alleged price-fixing of generic drugs.

Taro Pharmaceuticals USA Inc. will pay $67.6 million to settle the antitrust litigation in Pennsylvania federal court, the company disclosed in a filing with the U.S. Securities and Exchange Commission on Nov. 3. Taro settled with César Castillo LLC, FWK Holdings LLC, Rochester Drug Cooperative Inc. and KPH Healthcare Services Inc. on behalf of the putative class of all direct purchasers of certain generic pharmaceutical products. The settlement is subject to court approval. Litigation with other plaintiffs in Taro’s other multi-jurisdiction civil antitrust cases is ongoing.

Meanwhile, Sun Pharmaceutical Industries Inc. has also entered into a settlement with the putative direct purchaser class in the same case. That disclosure was made in another regulatory filing noting that the pair of subsidiaries would be paying a total of $85 million to resolve the litigation. Pharmaceutical companies involved in the MDL have also faced a U.S. Department of Justice criminal investigation. Taro had previously agreed to pay $213.2 million to settle the False Claims Act violations arising from the purported price-fixing conspiracy.

The Taro drugs implicated in the scheme include etodolac, a nonsteroidal anti-inflammatory drug used to treat pain and arthritis, and nystatin-triamcinolone cream and ointment, a combination of an antifungal medicine and steroid used to treat certain kinds of skin infections.

In May, a Pennsylvania federal judge selected a case from state enforcers over dermatology treatments to serve as a bellwether in the MDL. The selection came after a criminal case filed against Teva Pharmaceuticals upended the previous selection.

The judge’s order said the court has to balance the concerns of the DOJ’s criminal investigation — and the rights of the companies and individuals facing criminal charges — with moving cases in the civil litigation to trial.

The direct purchaser plaintiffs are represented by Michael L. Roberts, Karen Halbert and Stephanie Smith of Roberts Law Firm PA.

The case is In re: Generic Pharmaceuticals Pricing Antitrust Litigation (case number 2:16-md-02724) in the U.S. District Court for the Eastern District of Pennsylvania.

Source: Law360.com and The New Indian Express

Final Approval Given For $27 Million Settlement Over Conagra Unit Buy

U.S. District Judge Robert M. Dow Jr. has given final approval to a $27 million settlement ending litigation over investors’ claims that food manufacturer TreeHouse Foods Inc. overstated its success after buying a Conagra unit for $2.7 billion, wrongly inflating TreeHouse’s stock price.

The lawsuit was filed by investors, including lead plaintiff the Public Employees’ Retirement System of Mississippi, in 2016. The $27 million settlement was reached by the parties after nearly 11 months of mediation. Since approval, direct notice has been sent to more than 56,000 class members.

Class members include those who bought TreeHouse stock between Jan. 20 and Nov. 2, 2016. The time between when the company filed documents for a secondary offering to fund its acquisition of a Conagra Foods Inc. unit called Private Brands and the day before TreeHouse announced that Private Brands had failed to reach its third-quarter sales goals.

In the derivative suit, the plaintiffs claimed that Oak Brook, Illinois-based TreeHouse hid that its business was struggling in the months after buying Conagra’s Private Brands. TreeHouse makes cereals, dressings and other prepared products for sale under other companies’ brand names.

The suit said TreeHouse maintained an aggressive acquisition business model, gambling not only on its $2.7 billion buy of Private Brands operations but also on an $854 million purchase of healthy snack maker Flagstone Foods. These moves led the food and beverage manufacturer to issue false and misleading statements to investors and obtain critical financing.

After months of claiming the company had smoothly integrated Conagra’s business-making products for other brands and that it expected to see steep profit increases, the company issued several press releases in November lowering expectations. An internal reorganization was revealed that sent the share price plunging.

The investors are represented by Chet B. Waldman, Robert C. Finkel, Matthew Insley-Pruitt and Antoinette Adesanya of Wolf Popper LLP and C. Philip Curley and Alan F. Curley of Robinson Curley PC.

The case is Public Employees’ Retirement System of Mississippi v. TreeHouse Foods Inc. et al. (case number 1:16-cv-10632) in the U.S. District Court for the Northern District of Illinois.

Source: Law360.com

$18 Million AMC Stock Fraud Settlement Gets Initial Approval

A New York federal judge has granted preliminary approval to an $18 million settlement resolving claims between movie theater chain AMC Entertainment Holdings Inc. and a class of investors who accused the company of hiding details about certain acquisitions in the lead-up to its 2017 secondary public offering.

In her Nov. 8 order, U.S. District Judge Alison J. Nathan said she found that the settlement was the result of arms-length and non-collusive negotiations and is “sufficiently fair, reasonable and adequate.”

In her order, Judge Nathan scheduled a final approval hearing for Feb. 10, 2022. In a memo filed Nov. 1, lead plaintiff, the International Union of Operating Engineers Pension Fund of Eastern Pennsylvania and Delaware, joined by another plaintiff, Hawaii Iron Workers Pension Trust Fund, said the proposed settlement offers a substantial payment that is fair, reasonable and in the best interests of the class.

Under the settlement, AMC’s insurers will pay an aggregate of $18 million into a settlement fund, which will be paid out to class members after deducting notice and administration costs, taxes, attorney fees and litigation expenses. The class includes those who bought AMC shares between Dec. 20, 2016 — the day before the company filed details of its February 2017 secondary public offering with the U.S. Securities and Exchange Commission — and Aug. 1, 2017 — the day the company announced second-quarter results for the year that investors claim knocked 27% off the company’s stock price.

Lead plaintiff International Union of Operating Engineers Pension Fund is represented by Laurie Rubinow, James E. Miller, James C. Shah, Jayne A. Goldstein, Eric L. Young, Bruce D. Parke, Alec J. Berin and Kolin C. Tang of Miller Shah LLP. The Hawaii fund is represented by Samuel H. Rudman, David A. Rosenfeld and Christopher T. Gilroy of Robbins Geller Rudman & Dowd LLP.

The case is Hawaii Structural Ironworkers Pension Trust Fund v. AMC Entertainment Holdings Inc. et al. (case number 1:18-cv-00299) in the U.S. District Court for the Southern District of New York.

Source: Law360.com

Class Action Lawyers At Beasley Allen

Beasley Allen lawyers Clay Barnett, Mitch Williams, Rebecca Gilliland and Dylan Martin, in our Consumer Fraud & Commercial Litigation Section, specialize in product defect class action litigation. These cases involve vehicles, off-road vehicles, vessels, heavy machinery, agricultural equipment, and consumer goods such as home appliances, electronics and outdoor power equipment.

You can contact these lawyers with inquiries regarding products that fail to deliver as advertised or break down during their manufacturer’s warranty period. They can be reached at 800-898-2034 or by email at [email protected], [email protected], [email protected] and [email protected].

PHARMACY BENEFITS MANAGER (PBM) LITIGATION

PBM Reform Legislation Update

This year we have seen a great deal of state legislation aimed to regulate Pharmacy Benefit Managers (PBMs) and their abusive practices. Over 20 states have introduced legislation that regulates PBMs. Since at least 2018 and continuing today, hundreds of bills each year related to PBM regulation have been introduced in state legislatures across the country attempting to protect patients against some of the worst practices by PBMs.

The laws that these state legislators are passing are quite varied.  However, many states have enacted statutes that, among other things, regulate PBM reimbursement amounts, pharmacy network composition, amount of fees PBMs can charge pharmacies, and laws that require annual pricing reports to combat the lack of transparency created by PBMs.

The U.S. Supreme Court’s decision in Rutledge v. Pharmaceutical Care Management Association (PCMA) certainly encouraged states to expand their PBM regulation. In the U.S. Supreme Court’s Dec. 10, 2020 ruling in Rutledge, which handed a groundbreaking win to Arkansas in its fight to regulate PBMs,
the Supreme Court justices unanimously ruled that ERISA doesn’t preempt Arkansas’ Act 900 — a law forbidding PBMs from reimbursing pharmacies at rates below drugs’ acquisition costs. In holding that ERISA doesn’t preempt rate regulations, the justices explained that ERISA only preempts local and state policies concerning matters central to benefit plans’ administration, leaving states relatively free to regulate PBMs.

PCMA v. Wehbi is another case that was reargued before the Eight Circuit this past September as a result of Rutledge.  At issue in Wehbi are two North Dakota laws that regulate PBM activities similarly regulated by other states, including pharmacy reimbursement and fees. The Pharmaceutical Care Management Association (PCMA) argued that the North Dakota laws are preempted by federal law because they have an impermissible “connection with” ERISA (i.e., drew distinctions from the Arkansas statute at issue in Rutledge). In contrast, the State of North Dakota argued that the laws do not force or have any bearing on ERISA plans or their administration (i.e., are substantially similar to the Arkansas statute) and are allowable.

Like the decision in Rutledge, we can expect the forthcoming Wehbi decision from the Eight Circuit to have far-reaching implications, including a significant impact on current and future state PBM legislation.  A decision from the Eighth Circuit in Wehbi is expected in the first few months of 2022.

If you have any questions about PBMs and their unlawful practices, contact Dee Miles, Ali Hawthorne, James Eubank, or Rebecca Gilliland, lawyers in our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at [email protected],   [email protected],   [email protected], and [email protected].

Source: The National Law Review

THE CONSUMER CORNER

$15 Million Verdict Over Embryos Upheld By Court

A California federal court has refused to overturn a $15 million jury verdict against Chart Industries Inc. The company had been found responsible for the destruction of harvested eggs and embryos stored in a defective freezer. U.S. Magistrate Judge Jacqueline Scott Corley denied Chart’s request for a new trial and its motion for judgment as a matter of law.

Chart also argued the $14.98 million award to those patients — who said they lost eggs and embryos during a freezer failure at the San Francisco-based Pacific Fertility Center facility — was excessive. But Judge Corley noted there was ample heartbreaking testimony to support that figure. “Each plaintiff testified at length regarding the trauma and anguish they experienced as a result of the incident,” the judge said. Judge Corley cited several of the plaintiffs’ statements in her ruling. Judge Corley said the plaintiffs’ “trauma and anguish” justified the amount of the verdict.

Lawyers for the patients told the jury that Chart had predicted the tank would crack but failed to recall the tank or alert customers. The jury also found the fertility center 10% at fault, but the claims against Pacific Fertility Center were relegated to arbitration.

The patients are represented by Dena C. Sharp, Adam E. Polk and Nina R. Gliozzo of Girard Sharp LLP, Eric H. Gibbs and Amy M. Zeman of Gibbs Law Group LLP, and Adam B. Wolf and Tracey B. Cowan of Peiffer Wolf Carr Kane & Conway PLC. The case is In re: Pacific Fertility Center Litigation (case number 3:18-cv-01586) in the U.S. District Court for the Northern District of California.

Source: Law360.com

Apple’s $100 Million Antitrust Settlement With Developers Gets Initial Approval

U.S. District Judge Yvonne Gonzalez Rogers gave initial approval on Nov. 16 to a settlement requiring Apple to pay app developers $100 million and make developer-friendly changes to its App Store policy to resolve a putative antitrust class action claiming Apple monopolizes the market for software distributed on its devices.

Judge Rogers presides over a group of antitrust cases against Apple by consumers, developers and Epic Games. Judge Rogers preliminarily approved the settlement, finding it fair and the relief for the class to be adequate.

Epic, the app developers and consumers all claim that Apple’s ironclad grip on its App Store ensures it is the only place to get apps for the iPhone. The plaintiffs said this allows Apple to charge a too-high 30% commission on all in-app purchases.

Apple reached the $100 million settlement with a class of app developers in late August to resolve monopolization claims from the class of developers led by Donald R. Cameron, maker of a baby naming app, and Pure Sweat Basketball Inc., a basketball training company. The developer settlement will resolve claims for a class of about 67,000 developers who make some revenue but less than $1 million on the App Store per year. This is more than 99% of the iOS developers with paid transactions, the plaintiffs said. All class members would get at least $250, with the highest tiered payout being $30,000.

Along with the monetary relief, the agreement provides that Apple will maintain a 15% commission tier for U.S. developers enrolled in the App Store’s Small Business Program for at least three years following final approval of the settlement. The developers value the program at upwards of $35.4 million. Apple also agreed to change its App Store guidelines to allow developers of all app categories to communicate outside their app with consenting customers about purchasing methods other than in-app purchases, the order states.

The judge approved a settlement class of “all former or current U.S. developers of any Apple iOS application or in-app product sold for a non-zero price via Apple’s App Store that earned … proceeds equal to or less than $1 million … between June 4, 2015, to the date of the agreement [Aug. 24, 2021].”

However, it should be noted that the developers’ settlement only resolves one portion of the antitrust issues Apple faces. Following a bench trial in Epic Games Inc. v. Apple Inc., Judge Gonzalez Rogers ruled in September that Apple is not a “monopolist” as alleged by the Fortnite game developer but that some of Apple’s App Store practices are illegal.

Epic convinced the judge, in that case, to bar Apple from prohibiting Epic and other app developers from steering customers to outside platforms for purchases where app developers wouldn’t face the 30% commission. The consumer case against Apple is also back in district court after going to the U.S. Supreme Court, which ruled in May 2019 that the app users have standing to sue Apple for alleged overcharges paid in the App Store.

The developers are represented by Steve W. Berman, Robert F. Lopez and Ben M. Harrington of Hagens Berman Sobol Shapiro LLP. Lawyers from Sperling & Slater PC, Saveri & Saveri Inc. and Freed Kanner London & Millen LLC are serving on the executive committee in the developer case.

The case is Donald R. Cameron et al. v. Apple Inc. (case number 4:19-cv-03074) in the U.S. District Court for the Northern District of California.

Source: Law360.com

$38.5 Million National Grid Gas Companies TCPA Settlement Approved

A New York federal judge has granted preliminary approval for a $38.5 million settlement after a group of customers sued National Grid USA Service Co. and other gas companies for allegedly violating the Telephone Consumer Protection Act. The settlement was approved by U.S. District Judge Joanna Seybert on Nov. 8 when she determined that plaintiffs in the case have so far been represented adequately in the dispute by lead plaintiffs and the class council.

The settlement proposed would result in an average payout of between $50 and $150 for each member of the proposed class. The agreement also requires the companies to implement new training programs and procedures to prevent future TCPA violations. The suit was first filed in 2015 by plaintiff Jarrett Jenkins and has since added several more plaintiffs and produced several amended complaints.

The settlement certifies a settlement class of all U.S. residents who received unsolicited calls on their cellphones from March 9, 2011, until Oct. 29 of that year, using a prerecorded message or artificial voice concerning a number of topics, according to court documents. Those included messages regarding the payment or status of current or past National Grid bills and messages regarding an “important matter” concerning current or past National Grid bills and other related issues.

National Grid was sued alongside co-defendants  Brooklyn Union Gas Company, Niagara Mohawk Power Corp and KeySpan Gas East Corp, Boston Gas Co., Massachusetts Electric Co., Nantucket Electric Co., Narragansett Electric Co. and Colonial Gas Co., which is now part of Boston Gas.

In addition to the cash payment, the defendant companies have agreed to “implement significant and extensive policies and procedures designed to ensure that it complies with the TCPA and to make it easier for National Grid’s new, current, and former customers to prevent National Grid from robocalling them.” The policy changes provide National Grid’s customers with multiple ways to prevent collection robocalls to their cellphones.

The proposed class is represented by Jonathan D. Selbin, Douglas I. Cuthbertson, John T. Nicolaou, Avery S. Halfon and Daniel M. Hutchinson of Lieff Cabraser Heimann & Bernstein LLP, and Joseph S. Tusa of Tusa PC.

The case is Jarrett Jenkins et al. v. National Grid USA Service Company et al. (case number 2:15-cv-01219) in the U.S. District Court for the Eastern District of New York.

Source: Law360.com

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

A New Look At Case Activity At Beasley Allen

Our BeasleyAllen.com website provides all the latest information on all the current case activity at Beasley Allen. The list can be found on our homepage, top navigation, or our Practices page of the 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
  • Retirement Plans
  • Toxic Exposure
  • Whistleblower

Cases

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

  • Auto Products
  • Aviation Accidents
  • Belviq
  • Benzene in Sunscreen
  • CPAP Devices
  • Defective Tires
  • JUUL
  • Mesothelioma
  • On-the-Job-Injuries
  • Paraquat
  • Talcum Powder
  • Trucking Accidents

Resources to Help Your Law Practice

This may sound like a broken record; as I have said repeatedly, all of us at Beasley Allen are honored and privileged to have long been recognized as one of the country’s leading law firms representing only claimants involved in complex civil litigation. Our firm has truly been blessed, and we understand the importance of sharing resources and teaming with peers in our profession. The firm is committed to investing in resources that will help our fellow lawyers in their work. For those looking to work with Beasley Allen or simply seek information that will help their law firm with a case, the following are among our most popular resources. Some of the available resources are set out below.

Co-Counsel E-Newsletter

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

Aviation Litigation & Accident Investigation

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

The Jere Beasley Report

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

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

PRACTICE TIPS

Chris Glover, who manages our firm’s Atlanta office, has been an extremely active trial lawyer for a number of years. He has tried numerous cases involving product defects as well as extensive motor vehicle litigation. Chris has some recommendations on how to deal with the sudden emergency doctrine defense in Georgia. So, let’s see what he has to say on the subject.

Tackling The Sudden Emergency Doctrine In Georgia

Many people involved in motor vehicle crashes describe them as happening very quickly, forcing them to make sudden, split-second decisions before events unfold into catastrophic injuries and death. In Georgia, at-fault parties attempt to use the “sudden emergency doctrine” to invalidate personal injury claims. They must prove the occurrence of a sudden and unexpected emergency. Unfortunately, this doctrine is being used by defense counsel and insurance companies to avoid liability in crashes where the insured driver is clearly at fault.

Chris Glover recently encountered this defense in a case involving an 18-wheeler that suddenly left the road, drove over the median, and hit the automobile in which our client’s decedent was driving head-on, killing her instantly. The truck driver told bystanders at the scene that he had closed his eyes, and the next thing he remembered, he was in the median. But as soon as he called his employer, the trucking company, who advised him to seek medical attention, his story changed. The driver told doctors he had blacked out after his wife told him a joke, and he was diagnosed with laughter-induced vasovagal syncope.

The burden of proof was on the defense, in this case, to show there was a sudden incapacity, the incapacity was not created by any fault of the defendant driver, and the incapacity was not foreseeable. The sudden emergency defense was combatted from multiple angles.

Scene witness discovery revealed two eyewitnesses who saw the driver nodding off in the miles leading up to the crash, establishing a scenario more akin to a driver falling asleep at the wheel. This helped establish that the driver’s condition wasn’t sudden. This driver also had a work history that refuted the sudden medical emergency defense, including evidence of a prior sleep-related incident where the driver’s truck got stuck in a ditch. Finally, expert testimony from a sleep doctor and an accident reconstructionist further established that the crash was likely caused by the driver falling asleep at the wheel.

The sudden emergency doctrine was not designed nor created for at-fault parties to escape liability. But all too often, defense lawyers will attempt to use this doctrine in that way. It’s possible through extensive discovery to uncover the evidence needed to combat this defense.

If you need more information, contact Chris Glover at 800-898-2034 or by email at [email protected].

RECALLS UPDATE

A large number of safety-related recalls were issued during November. Significant recalls are available on our website, https://www.beasleyallen.com/recalls/. We currently try to put the latest and most important product recalls on our site throughout the month. You are encouraged to contact Shanna Malone, the Executive Editor of the Report, at [email protected] if you have any questions or let her know your thoughts on recalls. We would also like to know if we have missed any significant recalls over the past several weeks.

FIRM ACTIVITIES

Employee Spotlights

Melisa Bruner

Melisa Bruner, a Paralegal in our Mass Torts Section, works with Andy Birchfield and Leigh O’Dell.  She focuses on trial litigation, preparing exhibits, outlines for lawyers in the section, and ensuring they have everything needed in a case. Over her tenure with the firm, Melisa has traveled to many locations, including Texas, Louisiana, Mississippi, Illinois, Pennsylvania, New Jersey, and North Carolina, to name a few.  She has been a dedicated employee of the firm since 2002, and we are grateful to have her with us.

Melisa and her husband, Darrell, have been married for 22 years. She says they have two beautiful daughters who are currently attending the University of Alabama.  Their oldest is a junior, and the youngest is a sophomore.  Melissa says they also have fur babies, Patton (black Lab), Belle (Dachsund), two cats, Lee, Kaiyou, and a few chickens.  Melisa says she enjoys scrapbooking, spending time with family, serving with her church family at Eastmont Baptist Church, and traveling.  Recently, Melisa and her family enjoyed visiting Arizona and Disney World, described as “wonderful.”

Melisa says her favorite thing about working at Beasley Allen is the people.  She says, “I have been so blessed to have Andy and Leigh as my bosses.  They are shining examples of Christian leaders who lead with humility and integrity. I have also worked with incredible staff members here, and it is a privilege to serve the clients we do in Mass Torts.”

Melisa is a hard-working employee who is dedicated to the clients served and their pursuit of justice. We are blessed to have Melisa with the firm.

Rebecca Gilliland

We are pleased to report that Rebecca Gilliland has returned to the firm. Rebecca, growing up, says she assumed she would follow in her father’s footsteps and become a physician. But when a close family friend was taken advantage of by strangers and lost her home and personal belongings, Rebecca says she saw first-hand how passionately lawyers fought to seek justice for the victim. “That experience is a big part of what made me interested in making sure my work helps others,” she says.

Rebecca attended several universities while in active duty with the Marines, ultimately graduating from the University of West Florida in December 2007 with a degree in criminal justice. She attended Faulkner University’s Thomas Goode Jones School of Law and graduated magna cum laude in May 2012.

Rebecca first worked at Beasley Allen as a law clerk in 2010 and again as a lawyer, beginning in 2012. She moved home to Pensacola in 2017 to be closer to family. She returned to Beasley Allen to practice in our Mobile office, where she is currently working in the firm’s Consumer Fraud & Commercial Litigation Section.

Rebecca has worked on cases related to Average Wholesale Pricing (AWP)/Medicaid Fraud litigation, which sought to recover millions of dollars lost by state Medicaid agencies as a result of fraudulent price reporting by the nation’s largest drug manufacturers.

She has also been involved in litigation that seeks to recover money on behalf of states that paid for pharmaceutical products and devices based on fraudulent and deceptive acts against the states. Rebecca is also involved in several class actions, including working with our auto-defect team and cases involving Blue Cross and Blue Shield (BCBS) antitrust multidistrict litigation (MDL).

One interesting side note is that Rebecca is also a violinist and recently performed with the New England Symphonic Ensemble in Carnegie Hall. She says she still “fiddles around” in her spare time when she isn’t spending time with her husband Keith, their four children, and their countless animals.  Rebecca says:

One of the things I always enjoyed about Beasley Allen, and a major reason why I’m so excited to come back, is the environment. I’ve worked at a few different firms and corporations since I left, but it never felt the same as Beasley Allen. There’s something about being with a team of people who all want to strive to do their best.

We are very glad to have Rebecca back with the firm. She is a definite asset. We are most fortunate to have her with us.

Jessi Haynes

We are pleased to report that Jessica “Jessi” Haynes has also returned to Beasley Allen. She is in our firm’s Consumer Fraud & Commercial Litigation Section and is located in our Mobile office.

Jessi says she has always been “the kind of person to help others.” But she says that she didn’t realize her interest in law until she was halfway through her undergraduate program at Troy University. She went on to study law at Faulkner University Thomas Goode Jones School of Law. Jessi says:

I became inspired to work as a plaintiff’s lawyer after hearing Mr. Beasley talk to my leadership class at Troy about his work helping those who need it the most.

While in law school, Jessi worked as a law clerk at our firm and worked in the same Section she now is in as a lawyer. Jessi also served as Vice President of the Student Bar Association and a Dean Fellow while at Jones.

After graduating from Jones School of Law in 2016, Jessi worked as a Policy Specialist for TennCare, the Medicaid program for Tennessee. She also worked as outside counsel for long-term care corporations to secure Medicaid eligibility for residents in long-term care facilities.

Jessi recently returned to Beasley Allen after a short time away and is in our Mobile office. She works on cases involving qui tam claims under the False Claims Act and other employment law cases. One thing Jessi says she appreciates about returning to Beasley Allen is that “it’s a family feel.” She says:

Beasley Allen encourages and promotes values that I have not experienced in any other firm with which I’ve worked. Returning to Beasley Allen is like returning home.

Jessi lives in Lillian, Alabama, with her husband, Bobby, their daughter, Maddie Kate, and their calico cat Lettie. In her free time, she enjoys reading historical fiction and non-fiction books, listening to true crime podcasts, and joining her family in vigorously cheering for the Auburn Tigers.

We are glad to have Jessi back at Beasley Allen, and we are most fortunate to have her in the Mobile office. She too is an asset for the firm.

Houston Kessler

Houston Kessler, a lawyer in the firm’s Personal Injury & Products Liability Section, primarily handles product liability cases and other cases involving serious injuries and deaths. Before joining Beasley Allen, Houston worked for a very good law firm in Opelika, Alabama. He primarily practiced civil defense litigation and dealt with cases involving medical malpractice, personal injury, motor vehicle accidents, and other general civil litigation.

Houston says he became a lawyer because he liked the idea of using his training, experience, and natural gifts and talents to be an advocate for someone else. This motivation is what he enjoys most about practicing law. He says his favorite part of practicing law is having the opportunity to help someone who is often in the middle of a very difficult time in their life.

The Newnan, Georgia, native earned his law degree from the University of Georgia School of Law, where he was a member of the Negotiation Team and served as its Recruitment Chair. Houston graduated from the University of Georgia with a Bachelor of Business Administration in Economics and Management. While in college, Houston was named to the Southeastern Conference Academic Honor Roll, the National Association of Basketball Coaches (NABC) Honors Court, and served as the Men’s Basketball representative to the Southeastern Conference Men’s Basketball Leadership Council, where he was elected Vice Chair.

Although he recently joined the firm, Houston says that he knew about Beasley Allen’s reputation for maintaining a culture supportive of its employees as they pursue their faith. He explains that this attribute sets the firm apart from lots of other firms.

Houston played basketball for the University of Georgia, and his brother, Walker, now plays basketball for a rival school, Auburn University. Houston is a huge Bulldog fan, and he says he enjoys college football Saturdays, summer days on Lake Martin, playing guitar, and pick-up basketball.

We are most fortunate to have Houston with the firm. I predict a bright future with us.

Brook Ptacek

Brook, a lawyer in the firm’s Personal Injury & Products Liability Section, represents individuals who have been injured and family members of deceased victims. Before joining the firm, Brook worked for a plaintiff’s firm in Georgia, handling cases involving catastrophic injury, premises liability, trucking accidents, amputation, medical malpractice, wrongful death, whistleblower/qui tam, government monitorship and federal criminal defense. Before law school, Brook worked as a paralegal in a solo practice firm handling car accidents, trucking accidents, and premises liability cases.

Brook explains that she didn’t exactly choose the legal profession – it chose her. She says:

I was working on my mass comm major and was required to take a course of law in mass communication, and I fell in love. I realized I did not want to do digital marketing and then started falling harder for the law the deeper and deeper I got into the process.

Brook graduated from Georgia State University College of Law with a Pro Bono and Public Service Distinction. The distinction is conferred on law students who perform one-hundred-fifty hours or more of pro bono work during law school. During her three years of law school, Brook performed over a thousand hours.  Brook served as a student clinician for the Investor Advocacy Clinic during law school. This position provided her the opportunity to present her clinical experience and pro bono casework before the Securities and Exchange Commission in Washington, D.C. Brook’s casework included assisting clients with security arbitration claims before FINRA and working closely with the Georgia Secretary of State’s Securities Division investigating securities fraud in the state of Georgia.

While in law school, Brook also clerked for Judge Doris Downs of Fulton County Superior Court, assisting with the Diversion Court Program and Behavioral Health Treatment Court. Brook then interned with the Fulton County (Georgia) District Attorney’s office in the Trial Circuit division.

The Loyola University New Orleans graduate was a Dean’s Scholar recipient in law school and undergraduate school. She earned a B.A. in undergraduate school, where she majored in mass communication and minored in French. In Fall 2012, Brook attended L’Université de Paris, La Sorbonne in Paris, France, as part of a French-speaking immersion program and earned a certificate in French Cultural Studies. While at Loyola, Brook received the Loyola Fraternity and Sorority Life’s Academic Achievement Award, served as Panhellenic Council Vice President, chaired the Theta Phi Alpha Philanthropy and Scholarship committees, served as New-Member Educator and Alumni Chair. As a former camp counselor and full-time nanny, Brook has always had a soft spot for children. As an undergraduate, she spearheaded Loyola Fraternity and Sorority Life’s first-ever combined philanthropy event to raise money for programs serving children through the Catholic Charities Archdiocese of New Orleans.

Brook says her favorite part about practicing law is “the chase,” adding:

Litigation is exciting to me. I like the puzzle, and I like to get to the bottom of things. I like standing in a courtroom – and want to do a lot more of it. I like the challenge, and I like the people. I also tend to enjoy getting to know my clients. I like helping people, and I usually form a special bond with clients over the course of representation. Hard work doesn’t scare me. It’s companies and people who expose plaintiffs and consumers to harm that do – and that’s why it is so important to hold them accountable.

An Atlanta native, Brook is the oldest of four children and describes herself as a “big people person,” and says she loves to laugh. She shamefully admits to being a fan of “true crime” and is a huge Braves fan. Brook is a new homeowner in Buckhead and enjoys spending time with her long-time boyfriend, Andrew, and their dogs, a black lab, Otto, and a beagle-mix, Boots. Brook’s mother works in med mal and casualty reinsurance, and her dad is a musician and architect. One of Brook’s sisters works in finance in New York, and the other is in the Honors College at the University of Georgia, where she is studying to become a doctor. Brook’s brother serves in the U.S. Marine Corps Reserves and is a senior at the University of South Carolina.

Brook says the firm’s management style, energy and drive are what attracted her to Beasley Allen. She says:

The firm has curated a team of talented attorneys that are ready to try cases and go the extra mile for their clients, and that was something I wanted to be a part of.

We are fortunate to have Brook with the firm. She will be a real asset to the firm.

Lauren Rowe

Lauren Rowe, a lawyer in the firm’s Toxic Torts Section, works on cases in the national Roundup and Paraquat litigations. Before joining Beasley Allen, Lauren was a solo practitioner and handled family law and criminal law cases.

Lauren says she became a lawyer when her children were teenagers. She had friends who needed legal help but found it difficult to get the assistance they needed. Lauren was prompted to go to law school so that she could help people like her friends. She graduated from the University of Missouri–Kansas City School of Law after completing undergrad at Park City University, where she earned a Bachelor of Science in business administration.

Lauren is a member of the American Bar Association, Missouri State Bar, and the Platte County and Clay County Missouri Bar Associations. She says her favorite part of practicing law continues to be her ability to help people who are facing challenging circumstances.

Lauren says she appreciates the reputation Beasley Allen has for caring for its clients. Away from the office, Lauren says she enjoys reading, cooking and spending time with family, including her two grown daughters and two grandchildren. She is also an avid Kansas City Chiefs fan!

We are fortunate to have Lauren at Beasley Allen. She is a real asset and has contributed greatly to the firm, and truly cares about the clients she represents.

Brenda Russell

Brenda, a Paralegal in our Consumer Fraud & Commercial Litigation Section, works directly with Clay Barnett and Mitch Williams, focusing on motor vehicle class action litigation. She has been with the firm since 2015.

Brenda has a daughter, Sarah, whom she is incredibly proud of and all of her many accomplishments.  Sarah attends the University of Alabama at Birmingham and is pursuing a master’s degree in special education. Brenda’s siblings live in the Montgomery and Wetumpka areas.  She has two dogs, and ten cats, which she says are a huge part of her family. Brenda says her hobbies include spending time with family, traveling to North Carolina, exploring Birmingham with her daughter, and renovation and restoration projects.

Brenda says her favorite thing about working at Beasley Allen is the people.  She says, “we have the best firm that appreciates and recognizes all of their staff and takes care of them.  Also, of course, I enjoy getting to help thousands of people outside our firm.”

Brenda is a hard worker who is dedicated to the clients with whom she works. We are fortunate to have her with us.

Michelle Shamblin

Michelle Shamblin, a Paralegal in our Personal Injury & Product Liability Section, works directly with LaBarron Boone. She is responsible for drafting pleadings, discovery, discovery responses letters, scheduling depositions, communicating with clients, and helping to prepare clients for depositions and trials. Michelle has been a dedicated, hard-working employee of the firm since 2015.

Michelle is a graduate of West Virginia University with a master’s degree in Social Work and Legal Studies.  She also earned her Juris Doctorate from Birmingham School of Law. Michelle grew up in Nitro, West Virginia, where she met her husband, Richard. They have been married for 34 years and have two sons, Jake and Aaron. Jake, a lawyer, is a graduate of the Thomas Goode Jones School of Law. He is a JAG officer in the United States Army.  Jake and his wife, Mallorie, have four beautiful children, Levi (8), Noah (6), Thea (3), and Phoebe (2).  Aaron is a full-time soldier in Texas and has an engineering degree from West Virginia University.  Aaron and his wife, Jamie, have two beautiful children, Tristan (8) and Madison (6).

Michelle says spending as much time as possible with her six grandchildren is her favorite thing to do when not at work. She also loves to cook, garden, raise chickens, and go kayaking with her husband.  Michelle says that her favorite thing about working for Beasley Allen is teamwork, fellowship, and helping those in need.

We are fortunate to have Michelle with us. She is another hard-working employee who is dedicated to helping the clients she serves receive justice.

Matt Teague

Matt Teague, a lawyer in our Mass Torts Section, joined Beasley Allen in 2011. The focus of his practice is on product liability cases involving defective and highly dangerous pharmaceutical drugs and medical devices. Matt, an experienced mass tort litigator, is currently involved in the firm’s talc litigation. He has served on multiple trial teams and works daily with clients to advance their cause.

Before his current work in the talc litigation, Matt served on the Plaintiff’s Steering Committee for the Testosterone Replacement Therapy Litigation. He helped represent men who suffered significant injuries such as death, heart attack, stroke, blood clots and related conditions after using the heavily marketed drugs designed to increase testosterone levels.

Previously, Matt served on the trial team that secured a $72.6 million compensatory damages verdict in Philadelphia on behalf of three plaintiffs who took hormone replacement drugs and later developed breast cancer. Matt was one of three Beasley Allen lawyers representing Toshiko Okuda at her trial in Salt Lake City, Utah, which involved hormone therapy drugs. After a four-week trial, the jury returned a verdict in favor of Mrs. Okuda for $5.1 million. In the first bellwether case in the Testosterone Therapy Litigation, Matt was on the litigation team representing Jeff Konrad. The compensatory and punitive damages award received, in that case, totaled more than $140 million.

Matt explains that he felt the call to become a lawyer at a young age because of the example of his father, Barry Teague. Matt had this to say:

His career showed all the possibilities that exist for a lawyer. He served President Jimmy Carter as a U.S. Attorney, the State of Alabama and his community as a state senator and an Assistant Attorney General, and countless people from the community facing everything from criminal charges to those considering bankruptcy to those needing a will. I saw firsthand the numerous ways an attorney could help people, and it inspired me to do the same.

Matt says he enjoys everything involved in practicing law, adding:

I enjoy the camaraderie that comes from working with a team of lawyers on a common issue or case. For example, in our Mass Torts Section, we handle personal injury and product liability cases resulting from dangerous drugs and medical devices. We approach these cases with a team mentality where numerous attorneys, paralegals, and legal assistants work together to solve complex legal, scientific, and medical issues.

Our work allows us to give a voice to the voiceless, to allow those harmed by defective products to speak out, tell their story, and be heard by the judicial system, compliance agencies such as the Food and Drug Administration, and by powerful parties who might otherwise simply ignore these voices. We are genuinely excited when a new warning label is placed on a device or drug because we know that our efforts on behalf of our very brave clients will save lives and prevent future injuries. We are also truly happy when someone who has endured such pain is compensated and has a chance to improve their life.

Matt is a Samford University Cumberland School of Law graduate and earned his undergraduate degree from the University of Alabama. He was a member of the Crimson Tide football team from 1994 to 1998, playing for College Football Hall of Fame coach Gene Stallings. In addition to his play on the field, Matt was named to the Academic All-Southeastern Conference team in 1996.

Matt says that Beasley Allen is unique in that we truly do help those who need it most.  He says:

We meet most of our clients on the worst day of their lives and have an opportunity to help them in some way. Our lawyers are the most talented in the country and the most genuine and caring people in our profession. We care about our clients, and we care about each other. We have earned our reputation for being successful in all cases, whether they involve drugs, devices, automotive, workplace, airplanes, or chemicals.  As Beasley Allen lawyers, we share common values, goals and a commitment to use all of our resources and talents towards ‘helping those who need it most.’”

Matt is married to Erin Stiebing Teague. They are the proud parents of four children, Meagher, Miller, Butler and Garner. Matt enjoys spending his free time with his family and serving as a football commissioner for his son’s football league. We are most fortunate to have Matt in the firm. He has been a real asset.

Alexa Wallace

Alexa Wallace is a lawyer in the firm’s Mass Torts Section, where she handles Philips CPAP recall litigation. Alexa began working for the firm as a law clerk in the same section. The Jacksonville, Florida, native is the first lawyer in her family. Her parents are pastors and serve in the Jacksonville community at Family Life Church. Alexa says she has a strong desire to help others, and after initially pursuing a career as a neuropsychologist, Alexa opted instead to become a lawyer.

Alexa is a graduate of Lee University with a bachelor’s in psychology. She earned her master’s in applied cognition and neuroscience from the University of Texas at Dallas. Alexa went on to earn her law degree from Samford University Cumberland School of Law. During law school, Alexa clerked for other plaintiffs’ law firms in addition to Beasley Allen. She was the research and writing editor for the American Journal of Trial Advocacy and a two-year member of the Duberstein Bankruptcy Moot Court Team. Alexa served on the Henry Upson Sims Moot Court Board as an associate justice. She is currently a member of the Alabama State Bar and American Bankruptcy Institute.

Alexa says she believes Beasley Allen is a unique firm in the “law world” because of its order of priorities, with those being: First is God, then family, and finally work. In a society where working till you drop is prized above all else, Alexa says she finds that Beasley Allen’s beliefs actually result in the best working environment with more productivity and greater accomplishments.

Alexa is a very good lawyer who works hard for her clients. She is dedicated to the mission of the firm, and that is to help folks receive justice. We are blessed to have her with us.

SPECIAL RECOGNITIONS

Beasley Allen’s LaBarron Boone Named President Of The National Black Lawyers

The National Black Lawyers (NBL) Executive Committee unanimously selected LaBarron Boone to serve as President of the organization. He will lead The NBL in 2022. The NBL is an elite network of top African American plaintiffs, defense and governmental attorneys representing law firms, counties, cities and the federal government. The organization provides members with a wealth of professional resources and opportunities to increase their knowledge and build referral connections. LaBarron says:

I am honored to have the support of Beasley Allen Law Firm in my new role as president of The NBL. The firm has provided opportunities for engagement that empowers minorities to grow as attorneys and leaders and recognizes that when we excel, the firm excels, too.

LaBarron currently serves on Beasley Allen’s five-person executive committee. He helps set the direction of our firm’s work

As president of The NBL, LaBarron says he intends to organize and utilize the organization’s unique wealth of resources, making them more accessible and maximizing the benefits to all The NBL members. He believes that if the group engages and empowers its members, they will excel as lawyers and leaders.

LaBarron is a tremendously talented lawyer and a dynamic leader who is driven to improve the world around him. The NBL will benefit from LaBarron’s enthusiasm, passion and leadership experience next year as he serves in the organization’s top position.

LaBarron joined Beasley Allen in 1995 and soon became the first African American to become a partner at a major law firm in Montgomery. He has been affiliated with numerous professional associations and has been named among the Top 100 Civil Plaintiff National Trial Lawyers and The National Black Lawyers Top 100. He is also the recipient of numerous other accolades, including the firm’s Chad Stewart Award, the Marquis Who’s Who in America, and Lawdragon 500 Leading Lawyers in America.

Beasley Allen’s Pro Bono Work Continues

For more than a decade, the American Bar Association has highlighted the important professional and individual ethical commitment to pro bono service in the legal profession. The organization launched the National Celebration of Pro Bono in 2009 and marked each October to underscore the growing need for the services and applaud lawyers’ efforts nationwide to meet those needs.

Since Beasley Allen was founded in 1979, one of our bedrock principles has been “helping those who need it most,” and this includes our dedication to pro bono service. Through the years, a number of our lawyers and support staff have assisted with pro bono work. The firm was recognized for its collective efforts earlier this year when it was selected as the 2021 Pro Bono Fairness Award winner. This award, which made its debut last year, is sponsored by Legal Services Alabama (LSA). It recognizes persons or law firms in Alabama that demonstrate a consistent commitment to pro bono work and access to justice.

Our firm’s dedication to ensuring our neighbors have access to justice continued this year, and it is something I sincerely hope remains constant for years to come. The Gospel of Luke (12:48) instructs us that “[f]rom everyone who has been given much, much will be demanded; and from the one who has been entrusted with much, much will be asked.” Lawyers must never forget they have the good fortune of a legal education and an ethical responsibility to provide a portion of their services to those who can least afford those services.

FAVORITE BIBLE VERSES

Willa Carpenter, Beasley Allen’s “Spiritual Advisor and Counselor,” sent in her favorite Bible verse for this issue.

Behold, the virgin shall be with child, and bear a Son, and they shall call His name Immanual, which is translated “God with us”  Matthew 1:23

Willa has this to say for all:

Matthew is quoting a scripture spoken by Isaiah 7:14, which has now been fulfilled through the Son of God.   “God with us”! This is not just someone with limited power, abilities, or resources; nor is this someone who is limited in love, patience, wisdom, or grace. This is God who created heaven and earth, the one who knew us since before we were born. This is all-knowing, all powerful, ever-present, and ever-lasting, Holy God and without fault. He said He would never leave us or forsake us. He came to us through the suffering of His Son (Jesus) on the Cross, by the power of His Holy Spirit. GOD IS WITH US in our struggles and victories, in sickness and in health, laughter or tears, strength or weaknesses, joy or sorrows. He is with us when we sense His presence and when we are not aware of Him.

As we celebrate the birth of Jesus into our world (though He was always alive with the Father God). I pray that we will sense a deeper and exciting awareness of His presence, an ever- present awareness; and that some who for the first time will receive the true joy of Christmas, birthed in the heart of all who will make room for Him.

Bless you at Christmastime and throughout the New year!

Aigner Kolom, a lawyer in our firm’s Mass Torts Section, sent in the following verse.

Trust in the LORD with all your heart, And lean not on your own understanding; In all your ways acknowledge Him, And He shall direct your paths. Proverbs 3:5-6 NKJV

Aigner says: “Don’t worry about the sudden storms and trials that come into your life.  We must trust God and know that he is always in control. Even when times are dark trust that he will help you to see the light.”

CLOSING OBSERVATIONS

Robert M. Califf Selected To Lead FDA

President Joe Biden has nominated former U.S. Food and Drug Administration Commissioner Dr. Robert M. Califf to lead the agency again. Dr. Califf, who was commissioner in the final year of the Obama administration, had easily won confirmation in the U.S. Senate in February 2016 and held the post until President Donald Trump took office in January 2017.

Previously, Dr. Califf had been the agency’s deputy commissioner for medical products and tobacco, overseeing all related units, including the Center for Drug Evaluation and Research, the Center for Devices and Radiological Health and the Center for Tobacco Products.

In addition to his role as a professor of medicine at Duke — where he previously served as Vice Chancellor and founded the Duke Clinical Research Institute, the largest academic research institute in the world — Dr. Califf is the head of clinical policy at research company Verily Life Sciences.

Califf’s industry ties are being criticized by Public Citizen, a well-respected nonprofit consumer advocacy group, which said in a Nov. 12 statement that Dr. Califf garnered tens of thousands of dollars in consulting fees from major pharmaceutical companies, including Johnson & Johnson and Pfizer, after he left the FDA. Public Citizen said: “Califf was a poor choice for FDA commissioner when he was nominated by Obama in 2015 and he remains a poor choice today.”

It will be interesting to see how Dr. Califf is received on his repeat trip to the U.S. Senate for confirmation. Stay tuned!

Source: Law360.com

OUR MONTHLY REMINDERS

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

2 Chron 7:14

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

Edmund Burke

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

Isaiah 10:1-2

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

Martha Washington (1732 – 1802)

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

Louis Brandeis, 1937
U.S. Supreme Court Justice

Injustice anywhere is a threat to justice everywhere.

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

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

Martin Luther King, Jr.

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

Vincent Lombardi

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

Mark Twain (1835-1910)

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

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

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

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

Theodore Roosevelt Sr., December 16, 1877

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

Bryan Stevenson, 2019

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

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

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

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

PARTING WORDS

As a “Dye-hard” Auburn sports fan, I watched Auburn lose a game on Nov. 13 that the Tigers were expected to win. Not only did the Tigers lose a key game, they lost starting Quarterback Bo Nix, who suffered a broken ankle that required surgery. The Tigers also lost their veteran placekicker Andres Carlson for the year. Each loss was highly significant.

But the game of football was put in its proper perspective in a post-injury comment by the star quarterback. On Sunday, Nov. 14, after his injury was made public, Bo had this to say on Twitter:

Bones break and things change, but God is always the same. One of my favorite verses is John 13:7, “Jesus replied, “You do not realize now what I’m doing, but later you will understand.” The Lord’s timing is our schedule. The road to recovery begins tomorrow.

-Bo Nix Twitter

If we all looked at our life’s work in the same manner that this outstanding college football player does, we and everybody around us would be much better off. We never know what difficulties will have to be faced tomorrow. But we do know that we will have to deal with the difficulties that arise. We should follow Bo Nix’s lead and put God first and in total control of our lives. When we do that, with God in control, we can handle all things we face and be able to put them in the proper perspective. That includes losing the Iron Bowl by 2 points in 4 overtimes to a bitter rival. The sun still came up the next day, and life goes on!

About the Report

Consumer Protection Lawyer Jere Beasley

On January 7, 1979, Jere L. Beasley established a one-lawyer firm in Montgomery, Alabama, which has grown into the firm now known as Beasley, Allen, Crow, Methvin, Portis & Miles, P.C.

Jere has been an advocate for victims of wrongdoing since 1962, when he began his law practice in Tuscaloosa and then his hometown of Clayton, Alabama. He took a brief hiatus from the practice of law to enter the political arena, serving as Lieutenant Governor of the State of Alabama from 1970 through 1978. He was the youngest Lieutenant Governor in the United States at that time. During his tenure he also briefly served as Governor, while Gov. George Wallace recovered from an assassination attempt.

Since returning to his law career, Jere has tried hundreds of cases. His numerous courtroom victories include landmark cases that have made a positive impact on our society. His areas of practice include litigation in products liability, insurance fraud, business, nursing home and personal injury.

It has been 40 years since he began the firm with the intent of “helping those who need it most.” Today, Beasley Allen has offices in Atlanta, Montgomery, and Mobile, and employs more than 275 people, including more than 80 attorneys. Beasley Allen is one of the country’s leading firms involved in civil litigation on behalf of claimants, having represented hundreds of thousands of people.

No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.