Beasley Allen Montgomery, Alabama Office

The Jere Beasley Report January 2023

CAPITOL OBSERVATIONS

Senator Richard Shelby Transformed Alabama

Alabama Senator Richard Shelby retired from the U.S. Senate when the new Congress was sworn in on Jan. 3. My longtime friend was elected to the Senate in 1986, and the 36 years between then and now have been the most transformative and successful years in the state’s history. Richard and I met in 1962 when we were young lawyers in Tuscaloosa. We became close friends, and our friendship grew stronger over the years. We served together in state government when I was Lt. Governor, and he was a senator from Tuscaloosa. At that time, I predicted great things for my friend. But he has surpassed all expectations.

It would be impossible to list all the ways Richard Shelby has positively impacted this state, not just because he was the longest-serving senator in Alabama history but because he has been the most influential and consequential leader our state has ever elected to public office at any level. Without any doubt, he has been the all-time best senator from Alabama.

Much of the State of Alabama’s business and economic success over the past few decades can be tied directly to Sen. Shelby. We can credit him with the massive investments the federal government has made in Alabama, which can be felt throughout the entire state. He helped turn Huntsville into a national center for the technology, aerospace, and defense industries and Mobile into an ever-expanding and increasingly vital port city. Every area of the state, and I would say every municipality, has benefited as a result of Sen. Shelby being in Washington.

Sen. Shelby’s vision for a better Alabama touched all aspects of life in the state, leading to strides in higher education, research, health care, and business that made Alabama a magnet for commerce and elevated the quality of life for Alabamians.

Legislators in Washington of every political stripe respected Sen. Shelby because he understood everyone has a unique and valuable perspective. He is known as a relationship builder who reached across the aisle in Washington, finding ways to cooperate with others. As a result, Sen. Shelby found solutions that worked for everyone. He got things done with fairness, kindness, honesty, and integrity, not to mention diplomacy and skill – qualities badly needed on Capitol Hill today. Sen. Shelby is not just a great Alabamian and a true statesman, but he is a national treasure. We hope and pray for leadership from both political parties to continue his legacy and restore integrity to our deeply divided political system in Washington and across the country.

As Sen. Shelby leaves the Senate after nearly four decades of outstanding public service, all Americans should thank him for his countless accomplishments; he will be remembered as a model leader who worked tirelessly to make Alabama and the entire nation stronger. My friend from Tuscaloosa will be missed but never forgotten. The man truly is a national treasure!

Sources: AL.com and Roll Call

THE JUUL LITIGATION

Beasley Allen Announces Four Major Settlements With JUUL Labs, Inc. Addressing U.S. Youth E-Cigarette Usage

Beasley Allen was pleased to announce last month four separate global settlements with JUUL Labs, Inc. (JUUL) in MDL No. 2913, In re: Juul Labs, Inc., Marketing, Sales Practices and Products Liability Litigation. Together, these settlements will help address the public health crisis in this country caused by youth use of e-cigarettes.

The settlements follow three-plus years of hard-fought litigation in both state and federal court. Beasley Allen lawyers involved in the JUUL litigation believe that resolving the litigation against JUUL and its officers and directors is in the best interests of all plaintiffs.

The four settlements resolve the personal injury, consumer class action, government entity, and tribal cases brought in the multidistrict litigation (MDL) and the Judicial Council Coordination Proceedings (JCCP), resolving more than 5,000 cases brought by approximately 10,000 plaintiffs against JUUL and its officers and directors. The terms and amount of the settlement are confidential. The settlements come after a September 2022 announcement that JUUL would pay $438.5 million to 34 states and territories in a settlement following a two-year investigation into the company’s marketing and sales practices.

The personal injury settlement will provide meaningful compensation to people suffering from nicotine addiction and other injuries. The consumer class action settlement will remunerate consumers who purchased JUUL products. The government entity settlement will provide resources to school districts, cities, and counties to abate youth nicotine addiction in their communities. And the tribal settlement will provide similar much-needed funding for Native American tribes.

Over the last three years, Beasley Allen lawyers and support staff have spent extensive time and resources representing plaintiffs in this litigation. Beasley Allen was one of the first firms in the country to file personal injury lawsuits on behalf of minors against JUUL and was the first law firm to sue JUUL on behalf of school districts. Beasley Allen lawyers Joseph VanZandt and Beau Darley served on the Plaintiff Steering Committees of the MDL and JCCP, respectively. Beasley Allen clients and lawyers have played critical roles in the litigation’s personal injury, class, and government entity bellwether trial cases. Beasley Allen lawyers were intricately involved in all aspects of this litigation, from discovery to bellwethers, and throughout the settlement process.

The settlements do not release claims against Altria Group, Inc., or its related companies that are also defendants in the federal or state litigation. Our lawyers are committed to continuing the litigation against Altria, including the San Francisco Unified School District bellwether trial scheduled for April 2023 in the federal MDL.

If you need more information about the JUUL settlement or the ongoing litigation against Altria, contact any of the lawyers on the JUUL Litigation Team at 800-898-2034 or by email. Members are Joseph VanZandt (who headed the team and led the litigation), Sydney Everett, Beau Darley, Davis Vaughn, Seth Harding and Soo Seok Yang. Andy Birchfield heads the firm’s Mass Torts Section and has worked closely with the team on the JUUL litigation.

JUUL Settles Youth Marketing Claims In Pennsylvania For $38.8 Million

JUUL Labs will pay Pennsylvania $38.8 million after the state accused the company of marketing its electronic cigarettes directly to youth. It announced the settlement on Dec. 12, not even a week after it reached the settlement detailed above.

The settlement requires JUUL to cease advertisement of its products near schools and playgrounds, at kid-friendly events and with media outlets reaching audiences of 15% or more of kids, Pennsylvania Attorney General Josh Shapiro said.

The case is Commonwealth of Pennsylvania v. Juul Labs Inc., case number 200200962, in The Court of Common Pleas of Philadelphia County, Pennsylvania.

Source: Law360

There Is Still A Trial Awaiting Altria

The April trial against Altria Group, a tobacco giant and JUUL Labs investor over e-cigarette marketing, is still set to go as scheduled. JUUL recently settled over 5,000 cases in the multidistrict litigation, yet that settlement doesn’t affect the claims against Altria.

U.S. District Judge William H. Orrick, the judge overseeing the multidistrict litigation, said the court anticipated “a notice with respect to other matters or cases that have not been included in the settlement agreement.” He made this clear at the start of a case management conference.

The trial, set for April 17, involves the claims brought by the San Francisco Unified School District against Altria. Judge Orrick set a pretrial conference in the case for March 10. The following is a summary of the allegations in the complaint:

  • In December 2018, Altria paid $12.8 billion to acquire a 35% stake in JUUL Labs Inc.
  • Two early JUUL investors, Nicholas Pritzker and Riaz Valani led the negotiations for JUUL “and worked closely with Altria’s executives to secure Altria’s agreement to pull its own competing e-cigarette product off the market and instead throw its vast resources and cigarette industry knowledge behind JUUL.”
  • With that minority investment, Altria supported and directed JUUL. Those efforts towards JUUL’s success were provided “despite Altria’s knowledge that JLI … had misled the public and targeted youth.”

Altria Group Inc. is the parent firm of Philip Morris USA. We look forward to the April trial.

Source: Law360

The Beasley Allen JUUL Litigation Team

Beasley Allen lawyers in the Mass Torts Section, led by Joseph VanZandt, will continue to be involved in the JUUL litigation until it is officially over with all of the work completed. That includes the claims against Altima. Our lawyers represent individuals suing JUUL Labs, the top U.S. vape maker, for the negative impact its products have had on the lives of victims. Our lawyers also represent a number of school systems in the JUUL litigation and filed lawsuits nationwide on behalf of school districts.

Joseph VanZandt, who heads up our firm’s JUUL Litigation Team, served on the JUUL Plaintiff Steering Committee and was trial counsel for the first bellwether trial. Joseph and Mass Torts Section Head Andy Birchfield led our firm’s efforts to hold JUUL accountable for the damage it caused to thousands of youths and communities around the country. Beasley Allen’s Beau Darley served on the PSC for the California state court litigation.

If you need more information on JUUL, contact a member of the Beasley Allen JUUL Litigation Team at 800-898-2034. Members are:

Joseph VanZandt, Sydney Everett, Beau Darley, Davis S. Vaughn, Seth Harding and Soo Seok Yang.

THE CAMP LEJEUNE LITIGATION

Camp Lejeune Litigation Update

On Aug. 10, 2022, President Biden signed the Camp Lejeune Justice Act, which created a landmark remedy for individuals who were injured due to toxic water exposure at North Carolina Marine Corps Base Camp Lejeune. The Camp Lejeune Justice Act applies to military personnel, their families, and civilians who were exposed to the toxic water supply for at least 30 days between Aug. 1, 1953, and Dec. 31, 1987.  Exposure to the toxic water at Camp Lejeune has caused multiple forms of cancer, neurological disorders, miscarriages, and death, among other injuries.

On Nov. 17, 2022, Alaska Senator Dan Sullivan introduced proposed legislation that aims to cap the attorney’s fees trial lawyers can receive for claims made under the Camp Lejeune Justice Act.  On Nov. 30, Sullivan made a motion on the floor of the Senate for this bill.  He entitled it “The Protect Camp Lejeune Victims Ensnared by Trial Lawyers Scams (“VETS”) Act.”  His purpose is to amend the Camp Lejeune Justice Act and cap legal fees at 2% for administrative claims and 10% for litigation. The bill has not been passed, but there is still a lot of speculation as to what will happen next. Currently, there are no fee caps on attorney’s fees under the Camp Lejeune Justice Act. 

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

Beasley Allen Camp Lejeune Litigation Team

If you need help on a potential claim or more information on our Camp Lejeune litigation, contact one of the lawyers on the litigation team at 800-898-2034 or by email.

The Camp Lejeune Litigation Team consists of Julia Merritt and Leslie LaMacchia, who co-lead the team. Other members are Matt Pettit, Trisha Green, Will Sutton, and Elizabeth Weyerman. Rhon Jones (Section Head) works closely with the team. Additional lawyers will be added to the team as needed.

SOCIAL MEDIA LITIGATION

Social Media Addiction/Personal Injury Litigation Update

The national Social Media Addiction/Personal Injury Product Liability multidistrict litigation (MDL) involving the world’s largest social media products – Facebook, Instagram, Snapchat, TikTok, and YouTube continues to move at a fast pace. The MDL for this litigation was assigned to Judge Gonzalez-Rogers in the U.S. District Court for the Northern District of California, Oakland Division, who quickly appointed a team of 22 lawyers from around the country to lead this litigation on behalf of all plaintiffs, including Joseph VanZandt from our firm.

At the initial Case Management Conference in November, Judge Gonzalez-Rogers indicated that master pleadings and motion practice on the master pleadings would be prioritized. He indicated that discovery into the social media giants would commence if the plaintiffs defeat the defendants’ impending motions to dismiss on any of the plaintiffs’ claims.

During the second Case Management Conference on Dec. 14, 2022, the MDL court entered a scheduling order for the master pleadings and related motion practice. Under the court’s order, the master complaint(s) must be filed by Feb. 14, 2023, with the defendants’ motions to dismiss filed by April 17, 2023, and all oppositions and replies filed by June 30, 2023.

Judge Gonzalez-Rogers indicated that while defendants were permitted to brief certain legal issues, she does not believe motions focused on Section 230 of the Communications Decency Act (“C.D.A”) and the First Amendment should be filed or decided before the U.S. Supreme Court decides Gonzalez v. Google LLC in 2023. The U.S. Supreme Court is scheduled to hear the Gonzalez v. Google case in February 2023. The Court is expected to examine and clarify the level of immunity social media companies have under C.D.A Section 230 and the First Amendment. The outcome of this Supreme Court decision will significantly impact the ongoing social media litigation and set essential standards for holding social media companies liable for injuries caused by their platforms.

Although discovery is stayed pending master pleadings and motion practice, the Court is considering requiring certain defendants to produce documents that were previously produced in connection with various investigations brought by states attorneys general and international authorities. The next Case Management Statement is scheduled for March 3, 2023.

Meanwhile, Facebook, Instagram, Snapchat, TikTok, and YouTube are facing similar state court consolidated personal injury litigation in California. On Dec. 16, Judge David Cunningham of the Superior Court of California, Los Angeles Civil Division, ordered that cases against these defendants be consolidated in a California state court action similar to the federal MDL. The Judicial Council Coordination Proceedings (JCCP) will soon be assigned to a Judge in Los Angeles Superior Court.

Beasley Allen lawyers continue to be heavily involved with federal and state court litigations against the social media companies, representing clients in both courts. Beasley Allen is handling lawsuits for individuals who became addicted to social media as minors and suffered serious mental health consequences, including anxiety, depression, eating disorders, body dysmorphia, ADD/ADHD, self-harm, and suicidal ideation.

Privacy Suit Against Facebook Parent, Meta, Over Cambridge Analytica Ends With $725 Million Settlement

Meta, the parent company of Facebook, ended a class action lawsuit, agreeing to a $725 million settlement. The case stems from claims that it shared users’ information improperly with the data analytics firm Cambridge Analytica. The firm was used by the Trump campaign, according to NPR.

In 2018, it was revealed that up to 87 million people may have had their information improperly accessed by Cambridge Analytica. Later that year, the firm filed for bankruptcy. The plaintiffs’ lawyers report this is the largest data privacy class action recovery. It is also the most money Facebook has paid to end a private class action.

Meta maintains it did nothing wrong and issued a statement explaining how the settlement is “in the best interest of its community and shareholders.” The defendant also claims that “its users consented to the practices and suffered no actual damages,” however, it confirms overhauling its privacy approach.

Lawyers representing the class members say that approximately 250 million to 280 million people could able to seek payments through the class action settlement and that individual payment amounts will be determined by the number of people who come forward with valid claims. The plaintiffs’ lawyers said in the court filing:

The amount of the recovery is particularly striking given that Facebook argued that its users consented to the practices at issue, and that the class suffered no actual damages.

Following the Cambridge Analytica data leak, Facebook faced hostility worldwide and fell under government scrutiny as regulators probed the defendant’s privacy practices in the years leading up to the data leak.

A federal judge is expected to give final approval of the settlement during a hearing set for March 2, 2023.

Source: NPR

The Social Media Personal Injury Litigation Team

If you need help on a case or more information on the personal injury part of our Social Media litigation, contact a lawyer on the firm’s Social Media Litigation Team at 800-898-2034 or by email. Members of the team are:

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

It should be noted again that the class action aspect of the Social Media litigation is handled by lawyers in our Consumer Fraud & Commercial Litigation Section. You can contact Michelle Fulmer, Section Director, by phone at 800-898-2034 and she will have a lawyer contact you.

AN UPDATE ON MOTOR VEHICLE LITIGATION

15-Passenger Vans Remain Popular Despite Deadly Risks

It would be hard to overstate the day-to-day safety risks posed by 15-passenger vans. Rollover crashes and other deadly accidents involving these vehicles happen with alarming frequency. But while the hazards of 15-passenger vans are well-known to auto manufacturers, insurance companies, and various safety groups, drivers and passengers of these widely used vehicles are usually impervious to the risks they face while traveling in them.

Beasley Allen represents several passengers who were injured or killed when the 15-passenger van they were riding in spun out of control and crashed on a Metro-Atlanta interstate. Seven women did in the fiery 2021 crash, and the remaining nine were injured.

The horrific crash occurred in a 2002 Dodge Ram B3500 van when the driver attempted to change lanes to exit the interstate. The notoriously unstable vehicle flipped onto its side and skidded across two lanes of traffic, then burst into flames. Several other motorists stopped to help free the trapped women, but tragically some of them could not be rescued in time. This case is set to go to trial later this year.

Sadly, this isn’t the first product liability case involving multiple deaths in a 15-passenger van that we have handled, and it probably won’t be our last – at least not until these dangerous vehicles are taken off the road.

Fifteen-passenger vans are defective by design. They sit on a high center of gravity that makes them prone to tip or roll over, even with so much as a slight swerve or lane change. While these vans are built to hold 15 passengers and the driver, they become three times more likely to roll over with just ten occupants. This rollover risk is compounded with additional passengers and luggage.

The high center of gravity is the most serious flaw, but other risks contribute to the safety risks these vans present. The National Transportation Safety Administration says 15-passenger vans “should only be driven by experienced, licensed drivers who operate this type of vehicle on a regular basis.” While a commercial driver’s license is ideal for operating these unsteady and less-responsive vans, it is usually not required.

Fifteen-passenger vans can also give occupants a false sense of safety. The extra space inside the van can provide security, so passengers may not use their seatbelts. They may also feel free to move around and change seats while the vehicle is in motion, increasing the risk of rollover crashes caused by shifting weight. According to NHTSA, 57% of the occupants killed in 15-passenger van rollovers from 2010-2019 were ejected from the vehicle.

These vehicles are also prone to tire failure. Tire blowouts and tread separations can cause accidents in any motor vehicle, but they can be especially catastrophic in 15-passenger vans. NHTSA urges van operators to check the tires for pressure and signs of damage before every trip.

Electronic Stability Control (ESC) is now standard for most of these vehicles and can help mitigate the risk of rollover crashes. Ford engineers initially considered adding the ESC to the vehicles, but the company ultimately rejected them due to the extra cost. Despite modern safety enhancements, the safest alternative is not to drive these vehicles. That is what Beasley Allen lawyers, who are familiar with the vehicles through litigation, sternly recommend.

Unfortunately, 15-passenger vans remain incredibly popular among schools, athletic teams, church groups, and other organizations that routinely drive passengers to and from events. All owners and operators of these vans need to be aware of the unique risks they present and ride them with the highest level of care.

Beasley Allen lawyers Greg Allen, Alyssa Baskam and Chris Glover, are handling the case referred to above. The firm has handled a large number of lawsuits over the years involving deaths and injuries and 15-passenger vans. If you have any questions or need help with a case, contact Sloan Downes, Section Director of the Personal Injury & Products Liability Section, at 800-898-2034 or by email. She will have a lawyer contact you.

Sources: NHTSA, Greater American Insurance Group, Safety and Health Magazine and The Hanover Insurance Group

Takata Airbag Killed Chrysler 300 Driver, Officials Confirm

U.S. safety regulators and Stellantis have confirmed an exploding Takata airbag has killed another driver, prompting additional urgent “do not drive” warnings to drivers of certain older vehicles with unrepaired airbags.

The latest Takata airbag death is the third known death that Stellantis, the parent company of Fiat Dodge America (FCA) and other auto brands, has announced since November. All three deaths occurred in warmer U.S. states since April. In February, Honda officials confirmed that a Takata airbag killed the driver of a 2002 Honda Accord in Bowling Green, Kentucky.

Approximately 274,000 Dodge and Chrysler vehicles are still equipped with these dangerous airbags, which can blow apart in collisions, fender benders, and minor bumps. The defect is caused by highly volatile ammonium nitrate in the airbags’ inflators. The hypersensitive chemical can cause the airbags to deploy with lethal force, blasting metal fragments at drivers and other car occupants.

Stellantis said people should immediately stop driving Dodge Magnum wagons, Dodge Challenger and Charger cars and Chrysler 300 sedans from the 2005 through 2010 model years if their airbags have not been repaired.

Takata airbags have killed at least 33 people worldwide since 2009, including 24 in the U.S. About 400 injuries, most in the U.S., are linked to the exploding airbags. Many of the injuries are severe, including blindness and disfiguration. 

Officials said the latest confirmed U.S. death occurred in July in a 2010 Chrysler 300. The driver killed in that incident had borrowed the vehicle from the owner.

U.S. officials and auto manufacturers have warned that drivers of some older vehicles equipped with Takata airbags are in immediate danger and should stop driving the vehicles until repairs are made. Stellantis said that the risk of an explosion increases each day that the Takata airbag inflators go unreplaced.

NHTSA Acting Administrator Ann Carlson urged caution, saying, “…don’t let yourself or someone you love be at risk of dying or being seriously injured because of a defective, recalled Takata air bag.”

Sources: CBS News and Autoblog.com

Improving Tire Technology

Automobile technology has advanced in many ways over recent decades, but rarely do you hear about new tire technologies that are being developed to enhance overall automobile safety. However, some tire manufacturers are endeavoring to advance technology that monitors tire pressure, giving drivers more information to ensure vehicles are operating correctly.

One such technology is called “Contact Area Information Sensing,” or CAIS. This technology adds a sensor to the interior of the tire that provides monitoring information to the driver, including alerting the driver to roadway conditions (i.e., dry, wet, or icy). This information would appear on a visual screen located in the vehicle. CAIS can also provide interactive information informing the driver of tread conditions and air pressure data to help keep the driver up to date on current tire conditions.

Another approach to improving tire technology is the concept of airless tires. Some consumers may have seen these types of tires being used on all-terrain vehicles (ATVs) or lawn equipment. These tires are not susceptible to punctures. The treads are supported by flexible rubber spokes that can absorb road impacts. However, this type of tire does not provide as smooth a ride as today’s widely used tires. Nonetheless, the airless tire uses less rubber than existing tires, can last up to three times longer and has better resistance to hydroplaning. Due to the many benefits of this type of tire, manufacturers are currently working to offer a version that facilitates a smoother ride.

Tires are an important part of automotive safety, and improvements in tire pressure monitoring and how tires respond to driving hazards will help make vehicles safer and more reliable on our roads.

If you need more information or help on a claim, contact Ben Baker, a lawyer in our Personal Injury & Products Liability Section, at 800-898-2034 or via our website. Ben has handled a large number of tire-related cases for the firm.

Beasley Allen Settles Hit-And-Run Tractor-Trailer Accident Case

Beasley Allen lawyer Ben Keen, who is based in our Atlanta office and practicing in the firm’s Personal Injury & Product Liability Section, has reached a confidential settlement for a client who was injured in a tractor-trailer accident in Georgia. Ben says:

We are pleased to have secured a favorable settlement for our client. The accident was devastating for him. It left him unable to enjoy life as he had before and impaired his ability to work and participate in daily activities. Even though we reached a settlement in a venue known for favoring defendants, we used our expertise in tractor-trailer accidents and personal injury law to reach an agreement that adequately compensates our client for all that he lost. We will always strive to achieve the best possible results for our clients.

Ben’s client, a resident of Alabama, was driving his pickup truck and trailer on a northeast Georgia highway when he entered a construction zone where one of the two traffic lanes was closed. Like the motorists ahead of him, our client slowed his vehicle to navigate the stop-and-go traffic safely.

While stopped in the construction-zone traffic, a tractor-trailer driven by one of the defendants failed to slow down and collided with the rear of our client’s vehicle. The impact caused our client’s pickup truck to slam into the back of the tractor-trailer in front of him.

The tractor-trailer driver that collided with our client’s vehicle drove away from the crash site without checking on the motorists affected by the impact. Photographs taken by a “good Samaritan” were used to identify the fleeing party. Even with those photographs, the commercial entity continued to deny liability resulting in a lawsuit and the commencement of litigation. Deposition testimony of the investigating officer, witnesses, the plaintiff and his wife, and the defendant corporate representative(s) were used to pin down the defendants, who had not only fled the scene of the wreck but were no longer available for deposition.

The crash left Ben’s client with significant physical pain that affected his ability to work and enjoy life. Due to circumstances beyond the client’s control, there was a substantial gap in medical treatment after his initial visit to the emergency room. Through treating physician deposition testimony, we showed that the pain was acutely onset and persistent from the date of the wreck to the present. The lasting effects of the hit-and-run crash also continue to cause the client emotional distress.

Ben alleged negligence and wantonness against the defendant companies, including claims of negligent hiring, training, entrustment, and supervision of drivers. Additionally, the lawsuit asserted that the defendant companies failed to properly maintain and falsified records.

If you have questions concerning litigation relating to accidents involving tractor-trailers or other commercial vehicles, contact Ben Keen in our Atlanta office at 800-898-2034 or via our website.

PRODUCT LIABILITY UPDATE

Eighth Circuit Upholds $21 Million Biomet Hip Implant Verdict

Biomet Inc. asked the Eighth Circuit to set aside a $21 million verdict obtained by a woman requiring seven revision surgeries after receiving one of its hip implants. On Dec. 14, 2022, the court refused, finding the jury’s verdict in line with the evidence.

The jury awarded Bayes $20 million and her husband $1 million for his loss of consortium in November 2020. While the verdict is higher than other hip implant litigants’ awards, the court determined that the injuries Mary Bayes received from Biomet’s M2a Magnum metal-on-metal hip replacement product are worse. The three-judge panel found that the award was not “monstrous or shocking.” It wrote:

Whether $20 million is the correct compensation for a lifetime of hip dislocations and seven revision surgeries is a difficult question. We defer to the jury’s judgment in this inquiry and do not usurp the supervision of the district court lightly.

Since Bayes had both hips replaced with M2a Magnum implants in 2008, she has dislocated her hip 12 times and had seven revision surgeries. 

When the verdict was initially reached, Biomet argued that it was excessive and asked the trial court to reverse the judgment. The company requested a new trial, judgment as a matter of law or a verdict modification.

U.S. District Judge Stephen R. Clark rejected Biomet’s requests in August 2021, stating that Bayes suffered more severe pain and had more revision surgeries than previous hip implant plaintiffs.

Biomet appealed the decision, arguing that the jury’s inconsistent verdict favored the plaintiff on the negligence claim but the defendant on the strict liability claim.

The panel disagreed, stating that while strict liability requires a jury to find proof of reasonably anticipated use of the product, negligence does not.

The panel’s opinion indicated that Biomet focused on medical misuse of the implant. The jury could accept that theory or not, and the verdict was not inconsistent.

Biomet further argued that Bayes did not establish the standard of care nor show how it was breached. The panel again disagreed, pointing to an expert witness’s use of a bioengineers’ consensus document outlining metal-on-metal hip implant risks. The expert witness explained how Biomet failed to follow the recommended steps within the document.

The expert also stated that Biomet had received a letter expressing concerns about the M2a Magnum implants. In addition, evidence revealed that Biomet’s testing standard for hip replacements was created for other implants. The panel stated that this evidence could lead a jury to find that Biomet’s testing standards were flawed.

Biomet also argued that the plaintiffs’ evidence could show only that all metal-on-metal hip implants are defectively designed. However, the panel declared that Bayes offered evidence of Biomet’s negligent design decisions regarding limited testing, metal-on-metal components and component sizing.

Biomet’s expert argued that the implant cup’s size reduced friction. The panel again stated that the jury could determine which expert to believe.

The panel concluded that the verdict was not excessive relative to the plaintiff’s serious injuries, as Bayes has trouble sitting, walking and sleeping. The panel stated:

A verdict of $20 million is undoubtedly large, but it is not clearly disproportionate to the severe and irreparable injury Mary has experienced.

The Eighth Circuit panel included Chief U.S. Circuit Judge Lavenski Smith and U.S. Circuit Judges Jane Kelly and L. Steven Grasz.

Michael Gross of Michael Gross Law Office, Joseph F. Yeckel of Law Firm LLC and Darin L. Schanker of Bachus & Schanker LLC represented Bayes.

The case is Bayes et al. v. Biomet Inc. et al., case number 21-2964, in the U.S. Court of Appeals for the Eighth Circuit.

Source: Law360

WORKPLACE LITIGATION

Workplace Defective Product Death Case

Beasley Allen lawyers Mike Andrews, Cole Portis, and Dana Taunton, along with Birmingham lawyer Doug Roy, represented Katrina Falconer, the wife of the late Hilus Eugene Falconer, and secured a $7 million settlement last month in federal court in Anniston, Alabama. We are told that this may be the largest settlement for a single death in that court.

Mr. Falconer suffered fatal on-the-job injuries while operating a roll-off cable hoist truck. The subject truck, used to deliver and pick up large construction dumpsters, was equipped with an automatic tarping system to cover the dumpsters while in transit.  The controls for the tarping system at issue were located outside the driver’s side of the subject truck, behind the cab and directly under the hydraulic arms. The placement of the controls puts the operator in a zone of danger directly underneath the moving arms.

While Mr. Falconer was operating the truck, the hydraulic system malfunctioned, and an overhead hydraulic arm struck him, ultimately leading to his death. Our investigation revealed that the manufacturing company that produced the truck did not follow the installation manual for the hydraulic system. Instead, the controls for the system were installed in the “zone of danger,” or the area underneath the hydraulic arms. Amazingly, there was no standard in place for the consistent installation of the hydraulic controls. Instead, the placement of the controls was left to the installer’s discretion on any given day. The manufacturing company admitted that if the controls were moved to another location (as instructed in the installation manual), the hazard to Mr. Falconer would have been eliminated.

Additionally, although the company identified the hazard of the overhead hydraulic arms, they failed to conduct a failure modes and effects analysis (FMEA) that would have revealed the likelihood and severity of injuries from such a hydraulic system failure. Instead of designing out the known hazard, by designing a system that placed an intended user in a foreseeable zone of danger and disregarded the installation manual for the hydraulic controls indicates a reckless disregard for the safety of the intended users of this system.

Beasley Allen lawyers continue the battle to protect the public and hold negligent companies accountable. If you would like more information about this case or similar cases, contact Mike Andrews at 800-898-2034 or by using the form at the bottom of this page.

A Look At Machine Guarding

Some of the most common and often severe on-the-job injuries occur when machine operators are injured by industrial equipment.   As long as heavy machines have been in existence, injuries stemming from the use of those machines have also been around.  Over the years, machines have become safer.  Greater safety awareness, better engineering, and other technological advances have certainly helped reduce the likelihood of injury.  Guarding against hazards is just one of many ways to eliminate on-the-job injuries and is an ever-evolving practice. 

When a hazard within a machine is identified, three options are typically available to mitigate that hazard.  The design engineers can: 

  • redesign the machine to completely eliminate the hazard;
  • guard against the hazard; or 
  • warn the user of the hazard. 

When possible, the preferred method for dealing with a hazard is redesigning the machine to completely eliminate the hazard. When a machine poses a danger that cannot be completely eliminated, the appropriate course of action is to guard against the hazard.  If a hazard cannot be eliminated or guarded against, the final course of action is to develop adequate warnings alerting the user of the hazard.  This process of identifying a hazard and choosing the best method for eliminating that hazard is known as a safety hierarchy. 

Industrial machines, often due to the very nature of the machines, create hazards that cannot be eliminated entirely.  Machines that mill lumber, cut steel, or bind materials can also mill, cut, or bind the user.  To completely do away with these functions would eliminate the hazard but also the utility of the machine.  In such cases, guards are often the best means to retain both the function of the machine and protect against the hazard. 

The Occupational Safety and Health Administration (OSHA) Act of 1970 requires that every employer provide a workplace “free from recognized hazards.” It requires the guarding of any machine part, function, or process that may cause injury to operators or others.  Hazards generally occur in three locations: the point of operation (the location where the machine cuts, bends or presses a material), a power take-off or power transmission device, and any other moving parts. 

Many different types of guards are commonly used to protect the user from the hazards associated with these locations.  Fixed barrier guards, interlocking devices, light curtains, and sensors are all standard methods to protect the user from hazards.  An appropriate guarding method primarily depends on the type of hazard.   The most effective guards are those that do not hinder the function or utility of the machine while safely eliminating the danger posed to the user. 

Machines are often unguarded, inadequately guarded, or the wrong type of guard is used.  In many instances, productivity and ease of use are given more weight in machine design than in user safety. Failure to adequately guard against hazards can cause any number of injuries, including amputations, lacerations, and even death.  Every on-the-job injury involving a machine must be examined on a case-by-case basis. Just because guards are incorporated into a particular machine does not necessarily mean that the user or operator is adequately protected.

Evan Allen, a Beasley Allen lawyer in our Personal Injury & Products Liability Section, recently settled an on-the-job products liability claim stemming from an injury suffered by an employee operating an industrial saw.  The saw was sold without an anti-kickback guard.  While using the saw, a large sheet of plywood was kicked back, severely injuring the employee.  The saw’s manufacturer recognized the hazard of kickbacks and yet sold the saw without the safety device at the customer’s request. If you have any questions or need help on a claim, contact Evan Allen at 800-898-2034 or via our website. Evan is in our Mobile office and handles product liability cases throughout the state.

AVIATION LITIGATION

NTSB: All Bell 407 Helicopters Need Urgent Inspection

Federal safety investigators have urged U.S. and Canadian regulators to require immediate and more frequent inspections of Bell 407 helicopters. This warning comes after investigators found certain components are at high risk of fracturing and failing, potentially causing pilots to lose control of the aircraft.

That is what happened to a Bell 407 helicopter that took visitors to Hawaii’s Big Island on a scenic aerial tour when it crashed in June. All six people on board were injured, including three seriously.

The National Transportation Safety Board (NTSB) continues to investigate the crash. Still, the probe so far has uncovered evidence of a serious flaw that could jeopardize the safety of the famous aircraft. Tour operators, police departments, air ambulance services, and many others widely use Bell 407 helicopters. The aircraft’s popularity adds to the urgency of the NTSB’s warning.

According to the NTSB, the helicopter crash in Hawaii occurred when the tail boom detached from the fuselage at an altitude of 1,000 feet. Without warning, the pilot started to lose control of the aircraft. It crashed moments later in a lava field in Kalea.

NTSB investigators found that one of the four fittings that attached the tail to the fuselage was missing. The other three fittings were heavily damaged by stress and overload fractures. The NTSB expressed concern that this finding indicates that other Bell 407 helicopters may be flying with missing or fractured tail boom attachment hardware. The agency warned the Federal Aviation Administration (FAA) and Transport Canada that “the potential for catastrophic failure warrants immediate and mandatory action.”

The agency also warned that the manufacturer’s recommended 300-hour inspection interval is likely too long, as the Hawaiian tour helicopter had undergone an inspection 114 hours earlier that did not turn up any damage. Air safety regulators should require all Bell 407 helicopter operators to immediately inspect the tail boom attachment hardware, the NTSB advised. The agency also said the inspection interval must be shortened to increase the chances of detecting fractured attachment hardware “before a catastrophic failure can occur.”

Mike Andrews, a lawyer in our Personal Injury & Products Liability Section, is the lead Beasley Allen lawyer for our aviation litigation. Mike has handled many helicopter cases. He applauds the NTSB for making and publicizing the recommendations. He says:

There is little room for error when an aircraft operates at such high altitudes. Each component is critical to the safety of those on board and must function at optimum levels. The manufacturer and those charged with maintaining aircraft must address defective products immediately and effectively to prevent aviation disasters.

If you have questions about a potential aviation case, contact Mike Andrews by phone at 800-898-2034 or using the form at the bottom of this page.

Source: National Transportation Safety Board

Lawmakers Deny Boeing Deadline Extension, 737 MAX Compromise Offered

Federal lawmakers rejected a provision put in the must-pass defense bill last month that would have extended Boeing’s deadline for complying with a new safety standard requiring modern cockpit alerts.

Boeing has been lobbying lawmakers for a deadline extension that would allow it to put its 737 MAX 7 and MAX 10 variants in the air without redesigning the cockpit alert system that warns pilots of critical system malfunctions and failures. The current system confuses and startles pilots by sounding false and nuisance alerts, hampering the crew’s ability to diagnose and correct problems in potential life-or-death emergencies.

Congress mandated the safety improvements in the Aircraft Certification, Safety and Accountability Act of 2020, which Congress passed in response to the two catastrophic Boeing 737 MAX 8 crashes that claimed the lives of 346 people. The crash of Lion Air Flight 610 in October 2018 and Ethiopian Airlines Flight 302 five months later led to the 20-month grounding of Boeing 737 MAX aircraft worldwide.

Boeing’s earlier MAX models – the MAX 8 and MAX 9 – returned to the air in November 2020 after Boeing implemented a series of safety adjustments. However, Boeing’s MAX 7 and MAX 10 variants failed to be certified by the end-of-2022 deadline mandated by Congress. Without the required safety upgrades, the Federal Aviation Administration (FAA) cannot certify those 737 MAX models to fly.

Dropping the deadline extension from the annual defense bill deals Boeing a significant setback. The aircraft manufacturer has about 1,000 orders for the MAX 7 and MAX 10 pending. The company had threatened to cancel those variants if the compliance deadline was not extended to exempt them. Boeing argued that having the same cockpit alerting system in all versions of its 737 MAX aircraft would be safer and less confusing to pilots. Still, many aviation professionals, including the largest pilot union in the U.S., flatly reject that claim.

Several lawmakers opposed lifting the Dec. 31 deadline, but many favored granting Boeing an extension, either with or without stipulations. Attempting to strike a solution that worked for everyone, Sen. Maria Cantwell (D-Wash.) drafted an amendment that would allow the MAX 7 and Max 10 models to be certified as long as U.S. airlines retrofit all Boeing MAX jets in service with two key safety enhancements: an enhanced angle of attack (AOA) sensor system and a means to override all cockpit stall and “Overspeed” warnings. Boeing would be required to pay for the upgrades.

Beasley Allen lawyer Mike Andrews specializes in aviation litigation and represents some of the families of Ethiopian Airlines Flight 302 victims. He observed:

Aviation safety is of the utmost importance and should never be compromised. I firmly believe that every effort to protect the lives of passengers and crew aboard Boeing’s 737 MAX aircraft should be taken, no matter the financial or time costs involved. Critical safety upgrades should never be put on the bargaining table, and any deadline for these essential safety measures should be reinforced and enforced without hesitation. Too many lives are at stake to act otherwise.

If you have questions or need help with a claim, contact Mike at 800-898-2034 or via our website.

Sources: Seattle Times, Reuters, Aviation Today, Corporate Crime Reporter and Fox Business

Case of Pilot Killed in Boeing 737 MAX Crash Case Settles on The Eve of Trial

Garima Sethi, widow of former Lion Air pilot captain Bhavye Suneja, and The Boeing Co. reached a settlement over Suneja’s death during the October 2018 crash of Lion Air flight 610 on board a Boeing 737 MAX aircraft. U.S. District Judge Thomas Durkin announced the settlement in his order vacating a scheduled bench trial to hear the case.

Two cases remain in the aviation disaster, and Boeing asked Judge Durkin to hold bench trials only to determine the damages. It argued that the Death on the High Seas Act (DOSHA) is the governing law in the case. Boeing relies on a U.S. Supreme Court precedent finding that DOSHA is the only law that governs these cases, and it doesn’t allow estates to pursue a jury trial for deaths occurring on the high seas.

In 2000, Congress amended DOSHA, which initially applied to maritime vessels and deaths occurring on vessels beyond three nautical miles from a U.S. shore. The amended act clarified that it governs cases involving commercial aviation accidents. It also expanded the scope of recoverable damages in aviation crash death cases occurring beyond 12 nautical miles from a U.S. shore to include nonpecuniary damages, including “damages for loss of care, comfort and companionship.”

The Lion Air crash was one of two fatal MAX crashes that occurred within five months, claiming 346 lives. Based on crash investigators’ findings, the aircraft’s Maneuvering Characteristics Augmentation System, or MCAS, was at risk of being inadvertently triggered due to faulty sensor readings. The MCAS would push the plane into a nosedive, resulting in a crash.

The MAX jets were grounded for 20 months following the second crash. Additionally, the U.S. Department of Justice fined Boeing $2.5 billion in exchange for a deferred prosecution deal over criminal charges relating to its misleading federal regulators about the MCAS’ risks.

No other details about the settlement were available at press time, but we will keep readers updated on any developments in this and other cases involved in the Boeing MAX litigation.

Sethi is represented by Steven Marks and Kristina Infante of Podhurst Orseck PA and Andrew Hays of Hays Firm LLC.

The settled case is Garima Sethi v. The Boeing Co., case number 1:20-cv-05498, and the consolidated case is In re: Lion Air Flight JT 610 Crash, case number 1:18-cv-07686, both in the U.S. District Court for the Northern District of Illinois.

Source: Law360

THE TALC LITIGATION

Talcum Powder Litigation Update

Over the past year, Johnson & Johnson (J&J) has used the controversial legal strategy known as the “Texas Two-Step” in an attempt to shift its talc liabilities into a new corporation called LTL Management, LLC (LTL). LTL subsequently filed bankruptcy to halt thousands of pending talcum powder cases. While J&J continues in its effort to evade accountability, Beasley Allen lawyers continue fighting for cancer patients and are doing so on multiple fronts.

Following denials of our motions to dismiss the bankruptcy and lift the bankruptcy stay, the Talc Claimants Committee (TCC) filed an appeal with the Third Circuit Court of Appeals. The TCC asked the court to either dismiss LTL’s bankruptcy or limit its stay to only LTL rather than allow it to extend to the J&J parent corporation. On Sept. 19, the Third Circuit held oral arguments. We had hoped to receive a ruling from the Third Circuit before the end of last year. A decision has not yet been issued but the parties are hopeful that one will be forthcoming during the first quarter of next year.

Meanwhile, last year, Chief Judge, U.S. Bankruptcy Court for the District of New Jersey Michael Kaplan, overseeing the bankruptcy proceedings, ordered an abbreviated estimation process to give the parties a clearer understanding of the volume and value of claims currently pending against J&J and LTL. Mediator Kenneth R. Feinberg was appointed to oversee this process, which is expected to be completed by the first quarter of 2023. Once the estimation process is complete, each side will have the opportunity to submit a proposed bankruptcy plan to be voted on by affected plaintiffs. During this time, the parties will continue efforts toward court-ordered mediation.

On Aug. 11, J&J announced that it will no longer sell talc-based body powders anywhere in the world beginning in 2023. We believe this decision was made in response to the pressure put on J&J by the talcum powder litigation. Because of the strength of our clients in standing up against J&J, thousands of lives will be saved.

Our lawyers have secured $724 million in combined verdicts for women diagnosed with ovarian cancer after regular use of talcum powder. As many as 2,200 cases of ovarian cancer are diagnosed each year. If you or a loved one have been diagnosed with ovarian cancer after talcum powder use, contact a member of our Talc Litigation Team. Our lawyers continue this fight for cancer patients and their families.

Talc Suit Against Avon Ends In $50 Million Award to California Woman

Rita Chapman, a 76-year-old woman, and her husband, who sued Avon Products Inc. for negligently manufacturing cosmetics with asbestos-contaminated talc they claimed contributed to Mrs. Chapman’s mesothelioma diagnosis, were awarded $50 million in damages by a Los Angeles jury.

The jury found Avon carried 90% of the blame for Mrs. Chapman’s illness, and Hyster-Yale Group, Inc., the successor-in-interest to the maker of forklifts, was responsible for 10% of the blame.

The jury awarded Mrs. Chapman $32.8 million in compensatory damages and Mr. Chapman $8 million. The jury awarded an additional $11.3 million in punitive damages. Avon was hit with $10.3 of the punitive damages and Hyster-Yale, $1 million.

The jury found that both companies failed to warn consumers about the potential risks associated with their products and that Mrs. Chapman’s exposure to those products contributed to her mesothelioma diagnosis. They also found Avon’s talc-containing cosmetics had a manufacturing defect that “failed to perform as safely as an ordinary consumer would expect.”

Furthermore, the jury found Avon guilty of fraud for intentionally failing to disclose information that could have affected Mrs. Chapman’s use of the products.

During the trial, several other companies were cleared of liability by the jury, including Boeing Co., Ford Motor Co., and Johnson & Johnson.

The Chapmans are represented by Jessica M. Dean, Benjamin H. Adams and Rachel A. Gross of Dean Omar Branham Shirley LLP.

The case is Rita-Ann Chapman et al. v. Avon Products Inc. et al., case number 22STCV05968, in Superior Court of the State of California, County of Los Angeles.

Source: Law360

Beasley Allen Talc Litigation Team

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

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

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

THE WHISTLEBLOWER LITIGATION

U.S. Supreme Court Hears Argument On Government’s Authority To Force Dismissal Of A Whistleblower Case

Over the last few months, we have discussed petitions to the U.S. Supreme Court that relate to the False Claims Act (FCA) pleading standard. While that issue has not been resolved (and isn’t going to be resolved this term), the Court just heard oral arguments on another important FCA issue: whether and when the government can dismiss an FCA suit brought by a relator alleging fraud against the government. In the case United States, ex rel. Polansky v. Executive Health Resources, Inc., the government had previously declined to intervene and, after years of litigation, sought to force a dismissal. 

The relator argued the government had no authority to dismiss the case over the objection of a relator and the government argued it always retained authority to dismiss. But, at oral arguments this week, the justices did not seem to favor either side’s hardline request. Whistleblower cases under the FCA have largely been responsible for bringing in more than $70 billion for the government since 1986 and the annual filings are increasing.  Before filing a case under the FCA, the government is informed of the intent to file, along with the basis. Once the complaint is filed, the government can review and decide if it will intervene – take over litigating the case. 

There are, of course, a myriad of reasons why the government might choose not to intervene that have nothing to do with the merits of the claim. For example, with the increasing annual filings, the government may not have the capacity to assume control.  Regardless of the reason, more and more relator-plaintiffs are continuing to litigate their cases after the government declines.  That is, essentially, what happened in Polansky.

The government’s practice of seeking dismissal without intervening has created a split among the U.S. Courts of Appeal. The U.S. Supreme Court justices seemed to lean in the relator’s favor in requiring the government to intervene before it could seek dismissal, but in the government’s favor that the standard for dismissal would be relatively low.  Where that standard ultimately falls is the big question – does the government have to justify dismissal, and if yes, what is sufficient justification?  And, because the standard may be low, how to handle the fees and costs that Relators and their attorneys may have accumulated in the sometimes-lengthy time litigating the case after the government initially declined to intervene? 

These questions will, hopefully, be addressed this term by the Supreme Court.  Until then, if you have any questions about whistleblower litigation or believe you may have a potential relator-client claim, contact our firm to discuss. We are happy to look into and assess any potential FCA claims you may have. Lawyers on our Whistleblower Litigation Team are listed below.

Source: Scotus Blog

Modernizing Medicine Settles False Claims Act Case For $45 Million

A $45 million settlement has been reached by Modernizing Medicine Inc. (ModMed) and the U.S. government. ModMed is an electronic health record (EHR) technology seller, which the government said violated the False Claims Act (FCA) and Ant–Kickback Statute (AKS). It said ModMed accepted and provided payment for referrals and caused those using its EHR to report erroneous information in connection with claims for payment from federal programs.

The AKS prohibits anyone from offering or paying, directly or indirectly, any remuneration — which includes money or any other things of value — to induce referrals of items or services covered by Medicare, Medicaid, and other federally funded programs. The complaint alleged that ModMed violated the FCA and AKS through three marketing programs: 

  • ModMed tried to and obtained kickbacks from Miraca Life Sciences Inc. (Miraca). This was to encourage ModMed’s customers to use Miraca’s pathology lab services;
  • ModMed and Miraca worked together to improperly donate ModMed’s EHR to health care providers, increasing Miraca’s lab orders and simultaneously added customers to ModMed’s user base; and
  • ModMed paid kickbacks to healthcare providers and other influential sources in the healthcare industry in exchange for referrals to ModMed.

As a result of these deceptions, the government alleged that ModMed improperly generated sales for itself and Miraca while causing healthcare providers to submit false claims for reimbursement to federal healthcare programs.

The settlement with ModMed resolves, in part, a lawsuit filed by Amanda Lon, a former Vice President of Product Management at ModMed. The qui tam, or whistleblower, provisions of the FCA allow private individuals with knowledge of fraud against the government to bring a lawsuit on behalf of the government and to share in the recovery.  Long will receive approximately $9 million of the settlement.

If you are aware of fraud being committed against the federal or state governments, you could be rewarded for reporting the fraud.  If you have any questions about whether you qualify as a whistleblower, please contact a lawyer on our Whistleblower Litigation Team for a free and confidential evaluation of your claim. The lawyers on the team are set out below.

Sources: National Law Review, U.S. Department of Justice

The Beasley Allen Whistleblower Litigation Team

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

If you are aware of fraud being committed against the federal or state governments, you could be rewarded for reporting the fraud.  If you have questions about whether you qualify as a whistleblower, contact a lawyer on our Whistleblower Litigation Team for a free and confidential evaluation of your claim.  There is a contact form on our website, or you may call or email one of the lawyers on our team who are listed below.

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

SECURITIES LITIGATION

Cryptocurrency Fraud Revealed

We will take a look at how Sam Bankman-Fried used crypto exchange FTX, Inc. to build a years-long fraud to divert money from FTX customer accounts to FTX’s investment arm, Alameda (a crypto trading platform that Mr. Bankman-Fried helped launch) according to The New York Times.

Then Bankman-Fried’s company used those commingled funds to build his own “crypto empire.” The funds went directly to Bankman-Fried and other FTX executives in the form of “loans.” The swindler also used the commingled funds for political donations and purchased extravagant real estate in the Bahamas. Bankman-Fried did all of this by using elementary lies artfully delivered to investors since 2019.

FTX customers enabled the fraud through the proscribed process for investing in the company and its cryptocurrency. The New York Times summarized the process beginning with customers being told to place their fiat currency, such as U.S. dollars, in Alameda-controlled bank accounts. FTX would have access to “virtually limitless” assets funded by FTX customers.

Those investigating Bankman-Fried explained that he lied to “dozens of venture capital firms and wealthy family offices about the financial health of FTX and its sister company, Alameda Research.” While claiming that all customer money was safe, Bankman-Fried lied to investors about the relationship between FTX and Alameda and hid how Alameda regularly borrowed money from FTX. This deception created a $2 billion fund to pay for Bankman-Fried’s company.

Bankman-Fried’s personal unraveling began with FTX’s Chapter 11 Bankruptcy filing in Delaware on Nov. 11, post-turmoil, when a rush of customer withdrawals caused FTX’s value to drop from $32 billion down to effectively zero in less than a week and forced Bankman-Fried to resign as chairman. Next, the Manhattan U.S. Attorney’s Office unsealed an eight-count indictment on Dec. 6, 2022, charging Bankman-Fried with two counts of wire fraud, two counts of wire fraud conspiracy, and one count each of commodities fraud conspiracy, securities fraud conspiracy, money laundering conspiracy and conspiracy to violate campaign finance laws. Ironically, reporting on the incident claims Bankman-Fried was a member of a group chat named “Wirefraud” with others within FTX’s inner circle using the encrypted messaging platform Signal.

Following the U.S. Attorney’s lead, the U.S. Securities and Exchange Commission and Commodity Futures Trading Commission also brought civil enforcement actions for violations of the anti-fraud provisions of the Securities Act and Exchange Act in New York federal court on Dec. 13, the same day Bankman-Fried was initially slated to testify under oath before the U.S. House Financial Services Committee for allegedly violating the Commodity Exchange Act and related regulations. A copy of his prepared remarks for the committee shows that Bankman-Fried planned to begin his remarks before the committee with essentially a concession that he simply messed up, although with more colorful language.  

The Commodity Futures Trading Commission (CFTC) also filed civil charges. It claimed that Bankman-Fried and his two companies deceived customers and others investing in cryptocurrency “by manipulating the prices of certain digital assets, front-running other traders on the FTX platform, and lying about the location and use of customer funds,” The New York Times reported.

The CFTC alleges that Bankman-Fried deceptively increased the cost of FTT, a digital token FTX created. This digital currency was issued to some investors, and simultaneously, Alameda put FTT up as collateral to cover loans issued to it by other cryptocurrency firms. The CFTC complaint further alleges that one-third of FTX’s revenue was used to purchase FTT. Its goal was to remove it from the market, “artificially inflating its value.”

Bankman-Fried has been hit with a wave of private lawsuits and state investigations in the wake of his company’s collapse, like the Texas State Securities Board looking into whether Bankman-Fried broke securities laws by selling unregistered securities in the Lone Star State. More pointedly, a pair of investor lawsuits in California and Florida accuse him of scheming to deceive investors and offer them unregistered securities. Those lawsuits also name the Golden State Warriors basketball team as defendants and a host of celebrities and athletes who endorsed the now-bankrupt cryptocurrency exchange and alleges that investors relied on misrepresentations in purchasing a yield-bearing account with FTX.

Bankman-Fried led the crypto industry’s effort to establish this digital currency within mainstream American commerce. The company’s unraveling is the latest and most notable in a string of tumultuous incidents that have exposed risks in the opaque world of cryptocurrencies following the May collapses of Terra and its sister token Luna. While we anticipate that the SEC and other state and federal regulators will be better equipped to accommodate the balance of oversight with proprietary interests for cryptocurrency, the courts are often where these injured investors can obtain real relief. Our firm’s Consumer Fraud & Commercial Litigation Section investigates these suspected practices. You can contact Dee Miles, James Eubank, or Demet Basar, lawyers in the section, concerning any securities issues or questions you have or need help on a claim.

Source: Law360 and The New York Times

Beasley Allen Securities Litigation Team

Beasley Allen lawyers in our firm remain very active in securities cases as this area of our practice continues to grow. Lawyers in our Consumer Fraud & Commercial Litigation Section welcome any opportunity to investigate suspected practices and are blessed to be able to engage with both new and established colleagues in federal securities law and state securities litigation. You can contact a member of our Securities Litigation Team concerning any securities issues. The team consists of the following: James Eubank, who heads the team, along with Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the Section, also works with the team. The team members can be reached at 800-898-2034 or via the form at the bottom of this page.

THE ASBESTOS LITIGATION

Christmas Decorations Are An Unlikely Source Of Asbestos Exposure

In past issues of the Report, we have written about the countless products used in the U.S. during the 20th Century that contained asbestos. By some estimates, there were as many as 3,000 such products. Some well-known products include insulation materials, building materials like siding, shingles and joint compound and automotive products like brakes and clutches.  But along with the products that people typically associate asbestos with, there were dozens of other consumer goods that people do not normally associate with asbestos. One such category of products is Christmas decorations.

Many of us have antique Christmas decorations that have been passed down from generation to generation. Something to consider before pulling those old items out of the storage closet for the next yuletide season, check to see if there is any artificial or fake snow adorning them. For generations, fake snow on Christmas decorations was asbestos.  Look at some old pictures of you and your grandparents standing next to flocked Christmas trees, and you are likely looking at yourself standing next to deadly asbestos. Not only was asbestos used for fake snow on decorations like wreaths, ornaments, and Christmas tree flock, it was used on movie and theater sets to create the appearance of snow. 

Fortunately, most people who are exposed to minimal amounts of asbestos, like in Christmas decorations, are not going to get sick.  But in this litigation, where defendants are constantly trying to point the finger at other potential exposures as what caused a client’s mesothelioma, they will seize on any opportunity to do so. 

In a recent case, one of the pictures used in a mesothelioma client’s deposition included a Christmas tree in the background.  As expert mesothelioma lawyers, we knew that because the tree was not flocked, no defendant would be able to say that she was exposed to asbestos from the tree. 

But it would have been an easy mistake for a lawyer who did not know the ins and outs of asbestos exposures to use that picture even if the tree was flocked.  A seemingly tiny mistake like that can cost clients dearly. 

Beasley Allen lawyers who handle asbestos litigation have developed the expertise needed to understand the full possible scope of exposures. We always take this into consideration to ensure the best possible outcomes for our clients. If you need more information or help on a claim, contact Charlie Stern, a lawyer in our firm, at 800-898-2034 or via our website.

The Beasley Allen Asbestos Litigation Team

Asbestos litigation continues to increase and spread across the country. Beasley Allen’s Asbestos Litigation Team is headed by Charlie Stern in our Dallas, Texas, office. Charlie has years of experience in asbestos litigation. He was a perfect fit to lead the team. Other team members are Will Sutton and Cindy Lopez. Rhon Jones, who heads our Toxic Torts Section, works with the team. If you need assistance with cases involving asbestos products, contact one of the team members by phone at 800-898-2034 or via the form at the bottom of this page.

MASS TORTS LITIGATION

Beasley Allen’s Roger Smith Appointed To Acetaminophen MDL Executive Committee

Beasley Allen lawyer Roger Smith was appointed to the Plaintiffs’ Executive Committee for the Acetaminophen multidistrict litigation (MDL) by U.S. District Judge Denise L. Cote in the Southern District of New York on Nov. 22, 2022.  Roger will serve as the lead counsel for the Science & Expert Committee.  He has previously assisted committees on the Vioxx and Actos MDLs and was on the Plaintiffs’ Steering Committee for the Mirena MDL.

The Judicial Panel on Multidistrict Litigation (JPML) consolidated cases to Judge Cote on Oct. 5, 2022, due to the increasing number of filings across the country. The plaintiffs allege a link exists between prenatal acetaminophen exposure and autism spectrum disorder (ASD) and / or attention-deficit hyperactivity disorder (ADHD).  Since consolidation, the MDL court has already made important key rulings. 

On Nov. 14, 2022, Judge Cote denied defendant Walmart’s Motion to Dismiss on preemption grounds, concluding that “[a] manufacturer of an over the counter (OTC) drug sold under the monograph system is permitted to change its label so long as it meets the requirements of its monograph and other applicable OTC drug regulations.”

The court determined that acetaminophen manufacturers are not preempted from adding a more specific warning regarding potential prenatal acetaminophen risks. It allowed plaintiffs’ claims to proceed.

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

Infant Formula Multidistrict Litigation Update

In prior issues, we reported on our firm’s involvement in litigation surrounding the development of Necrotizing Enterocolitis (NEC) in premature infants who were fed cow’s milk-based infant formula products. Last month, we wrote that Judge Rebecca R. Pallmeyer, overseeing the multidistrict litigation (MDL), entered an order approving the selection of the first eight initial bellwether cases. Four cases were selected by plaintiffs, and four were randomly selected by the parties using a random number selection. Bellwether cases allow a small selection of representative “test” cases to move through discovery and litigation for the parties to have a better understanding of how the cases will be viewed by juries.

On Dec. 1, Judge Pallmeyer entered an order approving the final four initial bellwether cases, which were selected by the defendants.  Each of the twelve cases will be required to complete a Plaintiff Fact Sheet, an information form approved by the court where plaintiffs provide information about their claim to the defendants.  Also, on Dec. 1, Judge Pallmeyer entered a scheduling order for the initial bellwether cases, outlining the process and timeline for narrowing these twelve cases down to four initial bellwether trial cases in anticipation of trials beginning in spring 2024.

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

Chemical Hair Relaxers Sell An Unobtainable Beauty Standard At A High Cost To Health

An article in Allure magazine recently highlighted the young girls pictured on the packaging of popular hair relaxer brands in the early 2000s after a tweet about the “Hair Box Girls” went viral. Chemical hair relaxers are used to straighten, flatten and smooth hair. Most hair relaxers contain toxic chemicals such as formaldehyde, metals, phthalates, and parabens. Some of the former “Hair Box Girls” models responded to the tweet with updates. It was discovered that some models had styled their hair with something other than the chemical relaxer they were advertising. Some had naturally loose coils or used mousse to style their hair. Other models had silk-pressed hair, where hair is straightened with a blow dryer or flat iron. A number of Twitter users were upset that the girls on the boxes did not use the chemical relaxers they advertised.

Chemical hair relaxer use was recently found to lead to significant health problems, including uterine cancer, breast cancer, endometrial cancer, endometriosis, and uterine fibroids. A National Institute of Environmental Health Sciences (NIEHS) published an article in the Journal of the National Cancer Institute stating that it was recently found that women who used chemical hair straightening products more than four times per year were more than twice as likely to develop uterine cancer than those who did not. This article pulled data from the “Sister Study,” a nationwide project of the National Institutes of Health (NIH), to learn how the environment and genes may affect a woman’s risk of developing breast cancer.

Participants in the Sister Study were women aged 35-74 who were negative for breast cancer with at least one sister with a breast cancer diagnosis living in the U.S.

According to the research conducted over nearly 11 years, women who reported using chemical relaxers were almost twice as likely to have been diagnosed with uterine cancer than those who did not. Women who reported being frequent users of straighteners (defined as more than four times in the previous 12 months) were about 2.5 times more likely to develop uterine cancer than those who did not use the products.

Beasley Allen lawyers are actively investigating cases of uterine, breast and endometrial cancers, and endometriosis, and uterine fibroids in women who developed these conditions after using chemical hair relaxers. For more information, contact Aigner Kolom or Melissa Prickett at 800-898-2034 or via the form at the bottom of this page.

Sources: Allure and Journal of the National Cancer Institute

CPAP Recall Drags On As Some Replacement Devices Are Now Recalled

On June 14, 2021, Philips Respironics issued a voluntary recall of over 15 million CPAP, BiPAP, and ventilator devices worldwide, at least half of which are used daily in the U.S. Medical Device Reports, which can be submitted by users of medical devices or by the company itself, are reporting rising numbers of affected individuals. However, the Department of Justice is now involved in negotiating with Philips on the terms of a consent decree. This decree would potentially require Philips to explicitly state its future plans to avoid such recalls again. Such a plan is necessary in the face of an already failing attempt to correct prior mistakes.

Philips issued its intent to replace recalled devices and requested that recalled devices be returned to the company for refurbishment. Now, Philips is informing the Food and Drug Administration (FDA) that the Trilogy ventilators reworked as a part of its plan to provide users with safer devices have two new problems.

  • The first issue is that the silicone sound abatement foam replacing the recalled foam could separate from the plastic backing and block the air inlet. This blockage decreases the inspiratory pressure and could set off the ventilator alarm.
  • The second problem deals with the discovery of particulates in the air pathway. Some samples showed that the recalled sound abatement foam and environmental debris particles are still found in refurbished machines.

This means that simple refurbishment will not be enough to absolve these ventilators from potentially harming future users. 

Beasley Allen lawyers are investigating claims for the users of the recalled CPAP machines who have suffered from the adverse effects of the recalled Philips Respironics machines. For more information or if you need help with a claim, contact Beau Darley or Alexa Wallace at 800-898-2034 or via the form at the bottom of this page.

Sources: Food and Drug Administration, The New York Times and Stat News

EMPLOYMENT AND FLSA LITIGATION

Department Of Labor Modifies “Independent Contractor” Definition

The U.S. Department of Labor (DOL) has proposed a new rule to assist employers in determining whether a worker should be classified as an employee or independent contractor under the Fair Labor Standards Act (FLSA). Specifically, the new rule would provide employers and workers with the tools to ensure that workers are correctly classified, aiming to combat employee misclassification. The new rule’s framework will be more consistent with judicial precedent related to the classification of workers under the FLSA, which will provide better protection for workers and consistency for the entities responsible for enforcing the regulations.

The proposed rule would address the following:

Initially, the comment submission period on these changes was to run from Oct. 13, 2022, to Nov. 28, 2022, but was extended to Dec. 13, 2022.

Misclassification of workers denies individuals the protections and rights under the FLSA, encourages wage theft, provides employers with an unfair advantage, hurts the economy, and deprives vulnerable workers of their legally earned wages. Lawyers on Beasley Allen’s Employment Law Litigation Team have experience investigating and litigating worker misclassification cases. Familiar with the upcoming changes to the FLSA and other DOJ rules, our lawyers are ready to help anyone dealing with this issue.

Feel free to contact Larry Golston or Lance Gould, lawyers on the team, at 800-898-2034 with questions related to potential worker misclassification claims.

Source: U.S. Department of Labor

PREMISES LIABILITY LITIGATION

$160 Million Verdict Reached In Atlanta Wrongful Death Mass Shooting Case

On Dec. 15, after several years of litigation, a Dekalb County, Georgia, jury awarded $160 million against Sony for failing to protect patrons at a concert in the Underground Atlanta, Masquerade venue in downtown Atlanta.

On the night of Nov.12, 2017, a gunman entered the concert venue and, after picking fights with patrons, later opened fire in the crowded venue. Four people were shot, and Giovan Diaz, 22, and Ewell Ynoa, 21, died from catastrophic gunshot wounds. The gunfire erupted just as the main act was set to take the stage at the venue. Witnesses testified that Diaz and Ynoa – Gio and Wells, to their friends – were on the cusp of breaking through in the music industry before their deaths. The witnesses at the trial said the victims’ suffering was horrific before they died.

Beasley Allen Atlanta lawyer Parker Miller, who served as lead trial counsel in the litigation, says:

This verdict represents an incredible day of justice for our clients and for the safety of all people that attend concerts across America. Obviously, these types of cases do not come around often. This was a mass shooting in a crowded concert. There were multiple deaths, and Gio and Wells suffered significantly before losing their fight for life, as eyewitnesses outlined. The trial was incredibly emotional because of what these families, and the world, lost. One of these men had been told he would be a father just a few hours before the shooting happened. Combine that with the fact the concert endangered everyone, and this [d]efendant refused to participate in the legal process, and you get the type of verdict we saw here.

Parker Miller says further that the case’s unique nature led to the verdict. Also, a leading trial and appellate lawyer, Darren Summerville of The Summerville Firm, out of Atlanta, was on the trial team. He observes:

I have been litigating cases for a long time in Georgia, but I am struggling to identify another case as emotional or heartbreaking as this one was. Juries don’t award these types of verdicts unless there is a confluence of circumstances, which was the case here. Our system has always turned to our citizens to lend a voice when a company endangers others with wholly unnecessary suffering and death. Just as importantly, ignoring the legal process always represents a risk for an entity that thinks it need not participate.

The trial team also included Madeline Summerville of Georgia Trial Consulting, specializing in juror research and selection. She noted:

in a case like this one, involving the deaths of two inspirational young people, finding the right jurors is all the more important.

Tiffany M. Simmons, managing partner of Simmons Law in Atlanta, Georgia, was the lawyer originally retained by the clients. She brought the other lawyers into the case and served on the trial team. She echoed the comments from the other lawyers on the trial team:

There is no excuse for how poorly secured this production was. These men had over a hundred years of life expectancy left between them. They had their entire music careers before them. We are humbled by the jury’s decision, and we hope this sends a message that this type of conduct will not be tolerated.

The trial consisted of two previously consolidated cases. They included Rachel St. Fleur, et. al, v. Sony Music Holdings, Inc., et al., case number 18A69571, and Xavier Diaz, et al., v. Sony Music Holdings, Inc., case number 19A77518.

Premises Liability – Claims for Injuries Occurring on Property Owned by a Municipal Corporation (Ante Litem Notices)

Lawyers in our firms’ Montgomery, Atlanta and Mobile offices have handled a large number of premises liability cases over the years. These include cases in which an individual is severely injured due to a dangerous condition present on property owned by a municipal corporation (e.g., an airport). In such cases, it is important for the practitioner to consider any state-specific time-limited demand perquisites that may exist when bringing such claims.

In the State of Georgia, for example, a plaintiff bringing a claim against a municipal corporation must present an ante litem notice of claims within six months of the happening of the event upon which the claim against the municipal corporation is predicated. See O.C.G.A. § 36-33-5.

The practitioner must also ensure that they strictly comply with the requirements of the statute. For example, the Georgia statute requires that the notice include a specific amount of monetary damages being sought, which constitutes an offer compromise. Simply stating a range or a general description of the damages sought is insufficient and may result in dismissal.

Any practitioner representing a plaintiff who sustains injuries while on property owned by a municipal corporation should exercise diligence and scrutiny in researching and complying with any applicable demand prerequisite statute in the state in which they are filing. The time prescribed by such statutes may be significantly shorter than any applicable statute of limitations. Failure to strictly adhere to the statute’s provisions may prove detrimental to an injured victim’s claims.

Parker Miller and Houston Kessler, lawyers in our Atlanta office, handle numerous premises liability, third-party criminal acts and other catastrophic injury cases across Georgia and other states. If you have any questions about these cases, you can contact them at 800-898-2034 or via the form at the bottom of this page.

TOXIC TORT LITIGATION

More State Attorneys General Take On PFAS Fight

PFAS (forever chemicals) have plagued communities across the country with contaminated water. Used in a variety of industrial and consumer products, PFAS have become the target of a sprawling multidistrict litigation (MDL) and dozens of state court lawsuits. State and local governments allege theories of nuisance, trespass, negligence, and wantonness, among others, against PFAS manufacturers such as 3M, DuPont, and Chemours. Plaintiffs in these matters range from individual and class action personal injury claimants and property owners to water utilities to state attorneys general alleging statewide contamination of natural resources.

State attorneys generals have been standing up to the big chemical companies by filing suits for natural resources damages. For example, California Attorney General Rob Bonta filed a lawsuit in November, alleging widespread PFAS contamination across California. In addition to industrial pollution from sources like carpet, textile, and paper mills, California seeks to hold chemical companies liable for PFAS in the environment from the disposal of a wide array of consumer products like food packaging and beauty products, among others. California joined 15 other states currently battling companies for damages caused by PFAS.

Sources: U.S. Department of Justice and California Attorney General         

$40 Million Verdict In Teflon Cancer Case Against DuPont Upheld by Sixth Circuit

A Sixth Circuit panel upheld a $40 million personal injury verdict against DuPont for allegedly dumping a former Teflon ingredient in the Ohio River, which caused a man to develop testicular cancer.

Travis Abbott secured the verdict in early 2020 after alleging that DuPont’s dumping of the so-called “forever chemical” known as C-8 contaminated drinking water and contributed to his testicular cancer diagnosis. His partner, Julie Abbott, also received $10 million for loss of consortium, as Travis Abbott had lost both of his testicles during cancer treatment. But, her award was reduced to $250,000 in March 2021 under the Ohio Tort Reform Act.

The Abbotts’ lawsuit stems from a decades-long multidistrict litigation consolidated in Ohio. DuPont agreed in February 2017 to pay $671 million to settle some 3,500 lawsuits over claims the company contaminated water in Ohio and West Virginia. Later that year, Travis and Julie Abbott sued DuPont, alleging that DuPont’s dumping of C-8 had resulted in Travis Abbott being exposed to the chemical for 20 years, beginning when he was just six years old. They claimed that exposure led to his testicular cancer diagnosis.

The Abbotts won their case in January 2020. DuPont’s motion to seek a new trial and reduce the total verdict to $8 million was denied by the Ohio judge overseeing the case.

Jon C. Conlin of Cory Watson Attorneys, a Birmingham firm representing the Abbotts, told Law360 that he and his clients are extremely thankful for the hard work put in by both the trial court and the Sixth Circuit panel judges in addressing this litigation. Jon said:

DuPont entered into a binding class contract almost 20 years ago, and it has spent practically every minute since then trying to deny responsibility and avoid the costs of its conduct. Hopefully, after this opinion, that avoidance stops now.

The binding class contract referred to by Conlin is a 2005 settlement approved in West Virginia federal court outlining certain measures DuPont agreed to take to address the harms incurred by workers and communities due to C-8 water contamination.

The Abbotts are represented by Jon C. Conlin, F. Jerome Tapley, Elizabeth E. Chambers, Nina Towle Herring, Mitchell Theodore and Brett Thompson of Cory Watson Attorneys; Rachel Sarah Bloomekatz of Bloomekatz Law LLC; Matthew Wessler of Gupta Wessler PLLC; and Debra Anne Nelson.

The case is Travis Abbott et al. v. E. I. du Pont de Nemours & Co., case number 21-3418, in the U.S. Court of Appeals for the Sixth Circuit.

Source: Law360

Update On Paraquat In The California JCCP And Federal MDL

The Paraquat Products Liability Litigation MDL (Case No. 3:21-MD-3004) currently has 2,391 cases pending in the Southern District of Illinois in front of Chief Judge Nancy J. Rosenstengel, however, the state court litigation in California has seen the most activity as of late. 

The California state court cases have been consolidated in Contra Costa County by the state’s Judicial Counsel Coordination Proceedings (JCCP), bearing case number JCCP 5031, before Honorable Judge Edward G. Weil.  There are currently 123 cases pending.  The JCCP Court previously selected two (2) bellwether cases set for trial on June 24, 2023.  A second round of six (6) bellwether cases have been selected to proceed with case-specific discovery.  Of the six picks, three are plaintiff’s picks and three are defense picks.  No trial date has been set in these cases yet because Judge Weil will be reassigned as of Jan. 1, 2023.  The new presiding Judge has not yet been announced.  The next JCCP Cases Management Conference is set for Jan. 11, 2023. 

Beasley Allen lawyers Julia Merritt and Leslie LaMacchia are members of the Plaintiffs’ Executive Committee on the Paraquat MDL.  Beasley Allen’s Paraquat Litigation Team will be happy to answer any questions about the status of this litigation or the intricacies of the intake process, including the Plaintiff’s Assessment Questionnaire. Beasley Allen continues to accept cases where clients applied paraquat and have Parkinson’s Disease or Parkinson’s-like symptoms. Contact a member on the Paraquat Litigation Team if we can be of assistance to you in your paraquat applicator cases.

Paraquat Litigation Team

Beasley Allen lawyers Julia A. Merritt and Leslie B. LaMacchia are members of the Plaintiffs’ Executive Committee on the Paraquat MDL. Our Paraquat Litigation Team would be happy to answer any questions about the status of this litigation or the intricacies of the intake process, including the Plaintiff’s Assessment Questionnaire.

Beasley Allen continues accepting cases where clients applied paraquat and have Parkinson’s Disease or Parkinson’s-like symptoms. Contact us if we can assist you in your paraquat applicator cases. The Paraquat Litigation Team at Beasley Allen, consisting of lawyers in our Toxic Torts Section, handles the paraquat applicator cases.

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

Source: The Guardian

Monsanto Reaches $698 Million Settlement To End Oregon Pollution Suit

Oregon and Monsanto Co. have reached the largest environmental damage recovery deal in Oregon’s history, according to the state’s attorney general. Monsanto will pay the state $698 million after knowingly using toxic chemicals that harmed local waters and wildlife.

Bayer US LLC, the owner of Monsanto and co-defendants Solutia Inc. and Pharmacia LLC, has likely been aware since 1937 that the polychlorinated biphenyls (PCBs) used in its products are toxic. Yet, its companies used the compounds in lighting fixtures, electrical devices, hydraulic oils and other products until they were banned in 1977.

PCBs are known animal carcinogens. Federal regulators also consider them to be probable human carcinogens, as exposure can damage the liver, immune system, skin, blood and other bodily functions. Oregon Attorney General Ellen Rosenblum said in a press release:

This is a huge win for our state. PCBs are still present throughout Oregon — especially in our landfills and riverbeds — and they are exceedingly difficult to remove, because they ‘bioaccumulate’ in fish and wildlife. Cleaning up our state from this horrific environmental degradation will be as costly and time-consuming as it sounds, but this settlement means we now will have resources to help tackle this problem.

The state requested damages and cleanup costs in the suit. After litigation costs, most of the settlement funds will go toward remediation and cleanup. Bayer will admit no wrongdoing as part of the agreement.

Oregon is represented by Ellen F. Rosenblum, Lisa Udland, Paul Garrahan, Elleanor Chin, Deanna Chang and Scott Kaplan of the Oregon Department of Justice, Keith Ketterling, Jennifer Warner, Elizabeth Bailey, Steve Larson and Sophia von Bergen of Stoll Berne and Dan Mensher, Yoona Park, Lynn Sarko, Michael Woerner and Allison Gaffney of Keller Rohrback.

The case is State of Oregon v. Monsanto Co. et al., case number 18CV22540, in the Circuit Court of the State of Oregon for the County of Multnomah.

Source: Law360

3M Is Penalized And Barred From Shifting Liability In Earplug Litigation

On Dec. 22, U.S. District Judge M. Casey Rodgers rejected 3M Co’s efforts to avoid liability for harm caused to current and former members of the U.S. military. The defendant company’s defective earplugs allegedly caused the injuries. 3M has been trying to shift the blame to a subsidiary. Where have we heard about such a scheme before?

The claims include 250,000 cases over the Combat Arms Earplugs Version 2 (CAEv2) earplugs. Judge Rodgers, overseeing the lawsuits consolidated in her Pensacola, Florida, court, said 3M should receive the “harshest penalty” for its “bad faith” efforts to avoid liability by shifting it to a bankrupt subsidiary – Aearo Technologies.

Aearo Technologies developed the defective earplugs in 2008 for the U.S. military. The activity occurred before 3M acquired Aearo. When the subsidiary filed for bankruptcy protection in Indiana in July, 3M sought to put a halt to the cases against it.

In August, a bankruptcy judge refused to allow 3M to put the litigation on hold. While 3M is appealing the decision, Judge Rodgers said it “should have ended the sophistry” and 3M’s efforts to escape liability.

It didn’t end the company’s efforts, and Judge Rodgers said that 3M, as the parent company, and after nearly four years into the litigation, tried to use the leverage to “rewrite the history of the CAEv2.” It was the first time the company asserted “it is not independently responsible, as Aearo’s purchaser, for any injuries. 3M has lost 10 of the 16 earplug cases that have gone to trial so far, with about $265 million being awarded in total to 13 plaintiffs,” Reuters reported.

Further, Judge Rodgers pointed out that 3M was “masquerading as the hapless wrong party defendant and purposefully ambushing the other side with a wholly contrived strategic position.” She barred it from “shifting blame to the Aearo defendants.”

When 3M announced its appeal, it called Judge Rodgers’ ruling an “incomplete and inaccurate depiction of our good faith efforts in this litigation.”

In a joint statement, the lead plaintiffs’ lawyers, Bryan Aylstock and Chris Seeger said that 3M had held itself out as the sole defendant liable for any injuries the earplugs caused. They said:

We applaud Judge Rodger’s order, which shuts the door on 3M’s duplicitous, bad faith attempt to shift blame to Aearo defendants in service of its contrived bankruptcy maneuver.

I join with the lawyers. This ruling by a respected federal judge was on target, and she should be commended for her ruling.

Class Action Litigation

$287 Million Toyota Fuel Pump Nationwide Settlement Gets Final Approval

We have frequently reported in previous issues on the progress being made in the Toyota / Denso class case handled by our firm, and I am pleased to say that case reached a conclusion last month. Our Consumer Fraud & Commercial Litigation Section lawyers, representing 6.5 million class members in the Toyota Fuel Pump Class Action Litigation, obtained a huge victory for consumers when Magistrate Judge James R. Cho of the Eastern District of New York granted final approval to a $287 million class action settlement. Class members were represented by Dee Miles, the firm’s Consumer Fraud & Commercial Litigation Section Head, along with Demet Basar (serving as co-lead counsel with Dee), Clay Barnett, Mitch Williams and Dylan Martin. Dee says about this victory for consumers:

This settlement provides full relief to millions of consumers who unknowingly purchased vehicles with a defective fuel pump made by Denso and installed in Toyota vehicles. This settlement mandates that those fuel pumps be replaced by Denso and Toyota at no cost to the consumer and with a 15-year / 150,000-mile warranty on the replaced fuel pump. It is a complete fix for consumers with the fuel pump problem.

The firm initiated the litigation for plaintiff Sharon Cheng in February 2020. The lawsuit asserted that Toyota knowingly marketed and sold vehicles fitted with defective fuel pumps and failed to recall all affected Toyota and Lexus models and model years.

In response, Toyota expanded its initial recall, ultimately recalling 3.4 million Toyota and Lexus vehicles with defective fuel pumps manufactured by Denso. In April 2020, the plaintiffs added the faulty fuel pump maker Denso to the lawsuit. Our lawyers for the class demanded that additional vehicles that were at risk for faulty fuel pumps be added to the settlement, resulting in a total of nearly five million vehicles being included in the settlement. Preliminary approval was entered in September with a provision allowing implementation of the customer support program before final approval. Settlement provisions include:

  • Toyota agreed to implement a customer support program for the owners and lessees of approximately 1.4 million vehicles that Toyota did not previously recall.
  • The owners and lessees of these vehicles are entitled to prospective coverage for repairs (including parts and labor) on their original Denso fuel pumps for 15 years from the date of the vehicle’s original sale.
  • The benefit travels with the vehicle, meaning if it is sold or its lease ends before the expiration of the 15 years, the subsequent owner or lessee is still entitled to take advantage of the benefit.
  • Toyota also agreed to provide an extended new parts warranty of 15 years, measured from July 15, 2021, or 150,000 miles, whichever comes first on the recall remedy fuel pump kit for owners and lessees of the nearly 3.4 million recalled vehicles and an additional 170,000 hybrid vehicles that were not recalled.
  • The recall benefit also travels with the vehicle, so subsequent purchasers or lessees will also be entitled to the extended warranty.
  • The owners and lessees of all the vehicles covered by the settlement are entitled to free towing and loaner vehicles while their fuel pumps are being replaced or repaired.  If a class member needs a loaner vehicle that is like her vehicle, Toyota agreed to use good faith efforts to satisfy the request.
  • There is an out-of-pocket expense reimbursement program, a reconsideration procedure in connection with the customer support program and the extended new parts warranty.
  • A special master will oversee the settlement’s provisions to resolve any issues that may arise during the implementation and administration of the settlement agreement.

This settlement was unprecedented in its complete scope of relief and a tremendous victory for consumers. Lawyers in our Consumer Fraud & Commercial Litigation Section have similar class cases against other manufacturers and Denso for this same fuel pump issue that are ongoing and should be equally successful. We will keep our readers posted on the continued progress of those class cases as well.

If additional settlement information is needed on the Toyota / Denso settlement, details are available at www.toyotafuelpumpssettlement.com or contact Michelle Fulmer, Section Director, at 800-898-2034 or via the form at the bottom of this page. She will have one of our lawyers involved in the case respond.

Other lawyers representing the class, in addition to the Beasley Allen lawyers, are Jeffrey R. Krinsk of Finkelstein & Krinsk LLP; Jeffrey Corrigan, John A. Macoretta, Jeffrey L. Spector and Diana J. Zinser of Spector Roseman & Kodroff PC; Malcolm T. Brown and Kate McGuire of Wolf Haldenstein Adler Freeman & Herz LLP; Rachele R. Byrd of Wolf Haldenstein Adler Freeman & Herz LLP; Jerrod C. Patterson of Hagens Berman Sobol & Shapiro LLP; and Elbert F. Nasis of Forchelli Deegan Terrana LLP.

The case is Sharon Cheng, et al. v. Toyota Motor Corporation, et al., case number 1:20-cv-00629-WFK-JRC.

Vehicle Owners Seek Treble Damages In GM Suit

Beasley Allen lawyers are asking for treble damages in the suit in California federal court against General Motors LLC. But GM is pushing back against the bid for the class of vehicle owners. GM claims the request violates Idaho law and the court’s orders and that such damages are not supported by the evidence at trial.

The case involves certain SUVs and trucks made and sold by GM from 2011 to 2014 that had a particular engine — called the Generation IV Vortec 5300 LC9. The vehicles in question are Chevrolet’s Avalanche, Silverado, Suburban, and Tahoe and GMC’s Sierra, Yukon and Yukon XL.

The class is now asking the court for treble damages under the ICPA, saying this is necessary to deter similar behavior from GM and other companies in the future. Dee Miles of Beasley Allen, representing the plaintiffs, told Law360:

Idaho law permits the court to award punitive damages after a jury verdict for intentional or egregious conduct. The evidence in GM’s own documents demonstrates that GM clearly knew its piston rings were defective from day one, but it did not offer replacements simply because it was too expensive. This behavior must be deterred and the path to do that under Idaho law is for the court to award the punitive damages plaintiffs seek.

Adam J. Levitt of DiCello Levitt LLC, also representing the plaintiffs, added these comments:

The jury has already found that GM engaged in unfair and deceptive trade practices, and an award of punitive damages is necessary to prevent such conduct in the future. Nothing in GM’s response shows otherwise.

The plaintiffs and proposed classes are represented by Dee Miles, Clay Barnett, Mitch Williams, Rebecca Gilliland and Dylan Martin of Beasley Allen Crow Methvin Portis & Miles PC, Christopher S. Stombaugh, John E. Tangren, Adam J. Levitt, Daniel R. Ferri, Mark Abramowitz and Joseph Frate of DiCello Levitt LLC,  Jennie Anderson of Andrus Anderson LLP and Anthony Garcia of AG Law PA.

The case is Raul Siqueiros et al. v. General Motors LLC, case number 3:16-cv-07244, in the U.S. District Court for the Northern District of California.

Source: Law360

Johnson & Johnson Sued Over Alleged Carcinogenic Shampoo

Marina Scott of Illinois filed two lawsuits against Johnson & Johnson (J&J) and Wella, a cosmetics company. She claims the defendants sold dry shampoo products containing benzene, a known carcinogen and failed to include the ingredient in the products’ labeling.

The products were sold under J&J’s OGXbrand and Sebastian brand, owned by Wella, according to the plaintiff’s complaint. Scott explained that products by both brands contain “dangerously high” levels of benzene and that benzene is not listed among the active nor inactive ingredients on their labels. Benzene has been linked to leukemia and other cancers. Scott said:

Plaintiff and other class members would not have purchased the products, or would have paid substantially less for the products, had defendant disclosed that the products contained or risked containing benzene, or otherwise not misrepresented that the products did not contain or were not at risk of containing benzene.

Ms. Scott points to Valisure test results after testing for benzene in various dry shampoos in October 2022. Valisure is a laboratory and testing company. It found benzene levels in both brands of dry shampoo in question exceeded the Food and Drug Administration’s (FDA’s) minimum allowable amount of a product where the use of benzene is “unavoidable in order to produce a drug product with a significant therapeutic advance.”

The plaintiff alleges fraud, unjust enrichment and violations of the Illinois Consumer Fraud and Deceptive Trade Practices Act and various states’ consumer protection laws by the defendants, Law360 reported. She explained that the use of benzene and failure to disclose its presence on the labeling of the defendants’ dry shampoo products makes the products adulterated and misbranded. Such products cannot be sold legally under federal law.

Ms. Scott has asked to represent all plaintiffs from Illinois who purchased the products. She also seeks to represent plaintiffs who bought the products in California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York and Washington.

A similar lawsuit filed earlier in December in Illinois federal court accuses Pierre Fabre USA Inc. of misleading and endangering consumers by not disclosing its Klorane brand of products contains benzene. The putative class is represented by Carl V. Malstrom of Wolf Haldenstein Adler Freeman & Herz LLP, and Max S. Roberts, Sarah N. Westcot, Stephen A. Beck and Jonathan L. Wolloch of Bursor & Fisher P.A.

The cases are Scott et al. v. Johnson & Johnson Consumer Inc. et al., case number 1:22-cv-07069; and Scott et al. v. Wella Operations US LLC, case number 1:22-cv-07070, in the U.S. District Court for the Northern District of Illinois.

Source: Law360

CLASS ACTION SETTLEMENTS

In addition to the cases mentioned above, there were a number of other important class action settlements during December around the country. Several of those settlements received final court approval.

Investors Seek Approval Of $26 Million SolarWinds Security Breach

Software development firm SolarWinds has agreed to pay $26 million to settle a class action brought by investors who claim the company misled them about the strength of its cybersecurity defenses before revealing a massive 2020 cyberattack on its systems.

The class filed a motion for preliminary approval of the deal, saying it was “an excellent result for the Settlement Class … in light of the costs, risks, and delays of further litigation and the range of possible recovery.” The lead plaintiff in the case – the New York City District Council of Carpenters Pension Fund – said it settled on the recommendation of a mediator experienced in class actions and complex disputes. The motion states:

The settlement appropriately balances lead plaintiff’s objective of securing the highest possible monetary recovery for the settlement class against the significant risk that the settlement class could receive a smaller recovery — or no recovery at all — after further litigation if lead plaintiff failed to prove its claims.

While the settlement amount accounts for an estimated 13% to 20% of the potential damages, the investors acknowledged that proving the company’s statements regarding its digital defense capabilities “were materially false and misleading and were made with an intent to defraud” would have been too risky, according to the motion.

If approved, the deal would allow investors who bought or acquired SolarWinds’ common stock between Oct. 18. 2018, and Dec.17, 2020, to make a claim.

In November, SolarWinds told investors that it might be subject to a U.S. Securities and Exchange Commission enforcement action for potential securities law violations. The company said the alleged violations related to its disclosures and public statements about its cyber defense capabilities, internal controls, and procedures.

SolarWinds and its executives frequently touted the company’s security controls before it disclosed the massive security breach. The hack allowed Russian operatives access to the company’s vast and highly sensitive network of clients, including the U.S. Department of Homeland Security, the U.S. Department of Commerce, the U.S. Treasury Department, and nearly all Fortune 500 companies. 

The only thing standing between hackers and SolarWinds’ vast network of clients was the weak password solarwinds123 on the company’s FTP server. The password was discovered by a security professional in November 2019, prompting warnings that a breach could allow any hacker to upload and spread malicious code to the company’s customers. In December 2020, those fears were realized when the company confirmed that a breach had occurred and continued unabated for several months. Cybersecurity experts and other tech professionals widely regard the SolarWinds breach as the largest and potentially the most damaging breach that has ever occurred.

The investors are represented by John J. Rizio-Hamilton, Jonathan D. Uslaner, Benjamin W. Horowitz and Thomas Z. Sperber of Bernstein Litowitz Berger & Grossmann L.L.P. and by Gerald T. Drought and Frank B. Burney of Martin & Drought PC.

The case is In re: SolarWinds Corp. Securities Litigation, case number 1:21-cv-00138, in the U.S. District Court for the Western District of Texas.

Sources: Law360, ItWire.com and Politico

Fiat Chrysler Automobiles Engine Defect Class Action Gets Final Approval

A Michigan federal judge granted final approval to a class action settlement, resolving claims that Fiat Chrysler Automobiles (F.C.A.) sold certain Jeep, Dodge, Ram, and Fiat vehicles with a defect that caused excessive oil consumption and engine failure.

The agreement, estimated to be worth about $108 million, will provide owners of vehicles equipped with a 2.4L Tigershark engine extended warranties, free software upgrades, and reimbursements for repairs and other costs.

The case, a group of nine class actions consolidated in a Michigan federal court, claimed the Tigershark engines in the affected vehicles have a defect that causes them to release excessive amounts of oil into the exhaust system. The plaintiffs alleged that the excessive oil consumption could lead to the engines not being properly lubricated or cooled, which could, in turn, cause poor performance or engine failure.

According to the complaints, oil pressure in the Tigershark engines can drop to dangerously low levels, causing the vehicles to shut off without warning.

Under the agreement, owners of vehicles diagnosed with the engine defect can receive free repairs to correct the problem and reimbursements for towing and car rentals while the repairs are being made. Class members with vehicles needing significant repairs can receive $340 for an engine block replacement.

The settlement covers the following vehicles: 2015-2017 Chrysler 200, 2013-2016 Dodge Dart, 2014-2019 Jeep Cherokee manufactured before July 2018, 2015-2018 Jeep Renegade, 2017-2018 Jeep Compass, 2015-2018 Ram Promaster City and 2016-2018 Fiat 500x vehicles.

The consumers are represented by the Miller Law Firm PC, Hagens Berman Sobol Shapiro L.L.P., McGuire Law PC, McCune Wright Arevalo L.L.P., Sauder Schelkopf, and Berger Montague PC.

The consolidated case is Wood et al. v. FCA US LLC, case number 5:20-cv-11054, in the U.S. District Court for the Eastern District of Michigan.

Sources: Law360

Walmart’s $35 Million Wage Statement Settlement In California Will Get Final Approval

U.S. District Judge André Birotte gave final approval to a $35 million class action settlement between Walmart and thousands of workers who accused the retailer of violating California wage and hour laws in a California federal court.

Lead plaintiff James Evans, a former Walmart manager, brought the class action in September 2017, alleging Walmart failed to provide about 265,000 of its hourly associates with accurate wage statements as California law requires.

Under California’s labor laws, employers must provide their workers with accurate earnings statements, either detachable from the paycheck or included in a separate document. The statement must show total hours worked, gross wages, net wages, pay period, deductions, and other information.

Mr. Evans argued that Walmart’s failure to provide a paper wage statement was “tantamount to not providing any wage statement at all.” The retailer did provide electronic wage statements, but it never gave employees the option of receiving a physical paystub to review their earnings – a direct violation of California’s Labor Code.

Additionally, the class action accused Walmart of violating the California Unfair Competition Law prohibiting unfair business practices. The complaint also included claims under the state’s Private Attorneys General Act (P.A.G.A.), which authorizes workers to file claims on behalf of the state’s labor commission.

After attorney fees, P.A.G.A. penalties, and other expenses, the remaining $22.1 million will be allocated for class members. Hourly associates who worked at a California Walmart store between Sept. 14, 2016, and July 26, 2021, are eligible for a payout. The amount will be determined by the number of pay periods a claimant worked during that period.

The following is a summary of the case activity as reported by Law360:

  • In November 2017, Walmart workers filed a first amended complaint under the Private Attorneys General Act, adding allegations that the retailer failed to provide meal and rest periods.
  • Two years later, Judge Birotte certified two classes of workers for the overtime and wage statement claims but struck down class certification for the vacation and final pay claimants.
  • The parties agreed to settle the case in April 2021 and sought preliminary approval for the $35 million settlement five months later.
  • Judge Birotte rejected the settlement in March 2022. He was concerned that the release-of-claims section of the deal was overbroad, noting that dropped claims that Walmart failed to provide workers with wage statements and included labor code violations that weren’t alleged in the complaint.
  • At the court’s direction, the parties filed a renewed motion for preliminary approval on June 1, which included an amended agreement with a narrower release clause.
  • On June 30, 2022,Judge Birotte preliminarily approved the settlement, finding that the amended settlement agreement “reflects the strengths and vulnerabilities of the plaintiff’s case, the risks of class certification and the risks of proceeding on the merits of the claims.”
  • The final approval from Judge Birotte is the last step in the five-year-old class action.

Evans and the class are represented by Shaun Setareh, William M. Pao and Nolan E. Dilts of Setareh Law Group, and Stanley D. Saltzman of Marlin & Saltzman L.L.P.

The case is James S. Evans v. Walmart Stores Inc., case number 2:17-cv-07641, in the U.S. District Court for the Central District of California.

Sources: Law360

Securities Class Suit Involving Xerox Spinoff Results in $32 Million Settlement

Conduent, Inc., agreed to pay $32 million to settle security class claims brought by investors who claimed the Xerox spinoff misled shareholders about its progress in upgrading the information technology for its electronic toll collection business. 

Three class representatives urged a New Jersey federal court to approve the deal, which they said would give class members “a certain and substantial tangible recovery, without additional risk, expense, and delay.”

Plaintiffs’ attorneys are expected to seek up to $8 million in fees, representing about a quarter of the $32 million Settlement. They are also expected to ask for up to $600,000 in litigation expenses.

The proposed settlement agreement comes after a hard-fought legal battle that began in March 2019 over claims that Conduent misled investors about problems it was having with a vendor’s performance and its outdated information technology infrastructure. Investors claimed this caused them to pay artificially high stock prices.

In June 2020, U.S. District Judge Susan D. Wigenton denied the defendants’ bid to dismiss the case. In December, lead plaintiff Conduent Institutional Investor Group, sought class certification and the appointments of its members as class representatives, including Oklahoma Firefighters Pension and Retirement System, the Plymouth County Retirement Association, and the Electrical Workers Pension Fund Local 103 I.B.E.W.

Conduent objected to the motion to certify the class, arguing that the representatives “ceded control” of the case to their lawyers. Judge Wigenton rejected that argument in her February decision to certify a class of investors who bought shares of the company’s stock between Feb. 21 and Nov. 6, 2018. Judge Wigenton said in her order:

The investors testified that they supervise their lawyers, receive updates from and discuss the case with their lawyers, reviewed the court’s orders in this matter, are familiar with the factual allegations and claims in this matter, participated in discovery, and reviewed and approved their lawyers’ motions and amended complaint in this matter prior to filing. As defendants’ own brief concedes, plaintiffs are ‘aware of the facts and circumstances at issue in this litigation. This meets the minimum level of knowledge required of class representatives in the Third Circuit.

The investors are represented by Stanley D. Bernstein, Michael S. Bigin and Adam Federer of Bernstein Liebhard L.L.P., Christine M. Fox, Carol C. Villegas and Guillaume Buell of Labaton Sucharow L.L.P., Robert C. Finkel and Joshua W. Ruthizer of Wolf Popper L.L.P., and Richard L. Elem of the Law Offices of Jan Meyer & Associates P.C.

The case is In re: Conduent Inc. Securities Litigation, case number 2:19-cv-08237, in the U.S. District Court for the District of New Jersey.

Sources: Law360

Apple’s ‘Butterfly’ Keyboard Suit $50 Million Settlement Wins Approval

U.S. District Judge Edward Davila gave preliminary approval to a $50 million settlement to resolve claims brought by a certified class of Apple MacBook buyers who claimed that the tech giant knowingly sold laptops with defective “butterfly” keyboards. Judge Davila found the deal fair and reasonable, adding that a trial would have been costly and offered no payout guarantee. The judge said:

Even if plaintiff prevailed, the best-case recovery after trial was a judgment in the range of $178 million to $569 million. The $50 million settlement fund represents approximately 9% to 28% of the total estimated damages, which falls within the typical range of recovery in class action settlements.

Under the preliminary deal, attorneys for the MacBook buyers will not seek more than $15 million — or 30% of the fund — and no more than $2 million in litigation costs.

The settlement stems from a 2018 lawsuit claiming Apple knowingly sold MacBooks with so-called butterfly keyboards with sticky or unresponsive keys, which cost consumers $400 to $700 to repair. In April 2019 and again in October 2020, Judge Davila threw out some allegations and claims. In March 2021, he issued a partially redacted order certifying a consolidated class of Apple buyers in several states. In February, he set a trial scheduled to begin in March 2023. However, in July, the parties announced they had struck a nationwide settlement.

Under the proposed deal, class members who purchased multiple keyboard replacements due to the alleged defect will receive $300. Those who only replaced one keyboard would receive $125. Class members who only replaced key caps would get $50.

Sources: Law360

Class Lawyers In CVR Buyback Case Get $26.4 Million

Delaware Chancellor Kathaleen St. J. McCormick approved fees and expenses of $26.4 million for attorneys representing former unitholders of CVR Refining, L.P., a Texas refining partnership affiliated with billionaire financier Carl Icahn.

The payout, equal to about one-third of a $78.5 million settlement reached in August between a class of investors, CVR Refining and CVR Energy, will be paid entirely out of the settlement fund. 

Chancellor McCormick approved the attorney fee and expense award in a Chancery Court hearing on the case. The order approving the fees said the settlement was “in all respects fair, reasonable, and adequate to the class” and that the attorney fees also were “fair and reasonable.”

Former CVR Refining unitholders sued Icahn in 2019, alleging that he and his companies had misinformed public investors. The plaintiffs also said the Icahn entities exploited their power to manipulate the price of units before involuntarily cashing out minority unitholders. The investors who were forced out at an unfair price sought damages of up to $500 million.

The plaintiffs alleged that entities controlled by Carl Icahn engaged in a multistep scheme that resulted in the exercise of a call right to buy out the minority unitholders of CVR Refining, L.P., at an unfair price. According to the plaintiffs, the idea for this scheme came from a similar buyout at an unrelated entity, Boardwalk Pipeline Partners, L.P. The buyback scheme in that deal served as a playbook for the Icahn companies and affiliates, the plaintiffs alleged.

In a November brief, counsel for the plaintiffs said their deal was “the opposite of an early settlement.” They continued saying:

The parties litigated vigorously through trial and post-trial argument. The only thing that remained was the court’s post-trial opinion. Each side recognized it could win. Each side recognized it could lose. Facing that reality, the parties negotiated a settlement reflecting the merits of the claims.

Sources: Law.com, NASDAQ.com and Bloomberg Law

THE CONSUMER CORNER

Alabama Suit Involves Defects With Caterpillar Engines

Lawyers in our firm represent Alabama Aggregate, an Alabama business, in litigation against Caterpillar Inc., Terex Corp., Terex USA LLC, and Powerscreen Crushing & Screening, LLC. The lawsuit alleges that Caterpillar’s C4.4 industrial engine, installed in mining equipment manufactured by Terex and sold by Powerscreen, suffers from defects in the after-treatment system that causes unreasonable and substantial downtime, resulting in loss of profits. The case is being handled by Dee Miles, James Eubank, Mitch Williams and Dylan Martin, lawyers in our Consumer Fraud & Commercial Litigation Section.

The plaintiff’s business mines, processes, cleans and sells aggregate to other local and regional companies that extract the silicone within the aggregate to make computer microchips for use in a variety of technologies. The plaintiff utilizes screens—multi-layered conveyor belts—to sort the aggregate and other minerals once extracted from the ground.

The CAT C4.4 engines that power the screens are equipped with an after-treatment system that reduces exhaust emissions, per federal regulations. It is alleged that the after-treatment system in the CAT C4.4 engines suffers from multiple known defects. These defects affect the engines’ ability to reduce emissions, and the machines become inoperable by law until the problem is remedied.

The alleged mainly relates to the diesel exhaust fluid (DEF) system. The DEF injectors—the component that injects DEF into the exhaust—fail due to excessive heat exposure, allowing DEF to leak from the injectors and foul the wiring harness, resulting in trouble codes and downtime. Even once replaced with Caterpillar’s new-and-improved DEF injector, the wiring harnesses were still contaminated with DEF, triggering additional trouble codes and more downtime.

The DEF quality sensor – the component that measures the quality of the DEF fluid – also seems to fail from excessive heat exposure, triggering more trouble codes and resulting in more downtime.

Each of these above-mentioned problems is alleged to be caused by Terex’s and / or Caterpillar’s poor design of the engine compartment, which has little to no ventilation with components that can reach over 1,000 degrees in operating conditions. To this day, neither Caterpillar nor Terex has issued any heat mitigation remedies for these machines.

Moreover, our lawyers say the evidence will show that Caterpillar has known about these issues for years since 2015 or before, and these issues have affected over one thousand machines nationwide. There seems to be no evidence that Caterpillar ever disclosed these issues but continues to manufacture and sell these engines without remedy.

The case will be tried in late 2023 before U.S. District Judge Myron Thompson in the Middle District of Alabama. We will update our readers on this matter as the litigation progresses. If you have any questions, need information, or just need help with a claim, contact Michelle Fulmer, Section Director, at 800-898-2034 or via the form at the bottom of this page. She will have one of the lawyers handling this case respond.

Carbon Monoxide Poisoning In Winter Months

Winter weather often means that people are cranking up their central heaters and staying indoors in search of warmth. We often hear of fire hazards during this time, but one deadly risk is often overlooked: carbon monoxide poisoning. Carbon monoxide (CO) is an odorless, invisible gas that causes a multitude of injuries, including vomiting, chest pain, nausea, and dizziness. Prolonged CO exposure can lead to extreme injury or death.

The Centers for Disease Control and Prevention (CDC) reports that at least 430 people die in the U.S. annually from accidental carbon monoxide poisoning, with approximately 50,000 visiting the emergency department for treatment. One solution to this often-fatal problem is to ensure that carbon monoxide detectors are inspected and maintained frequently to ensure proper performance. Additionally, carbon monoxide-producing appliances should be regularly inspected by qualified professionals.

Our lawyers have encountered an unfortunate trend in our practice: the common failure of landlords, property managers, and large management companies to ensure that their tenants and residents are protected from carbon monoxide exposure and poisoning.  Too often, residences are not inspected, and appliances are left completely unchecked, placing residents in immediate danger.

Beasley Allen lawyers are currently working to hold landlords accountable and ensure that the general public has safe and well-maintained housing. If you have questions about carbon monoxide exposure or have been affected by CO exposure, contact Beasley Allen lawyer Mike Andrews at 800-898-2034 or via the form at the bottom of this page.

Federal Regulators Order Wells Fargo to Pay $3.7 Billion Over Illegal Sales Practices

The Consumer Financial Protection Bureau (CFPB) ordered Wells Fargo, a consumer banking giant, to pay $3.7 billion in the latest efforts to hold the company accountable for yearslong scandals tied to its sales practices. The bank will pay $2 billion to consumers and $1.7 billion in penalties for charging illegal fees, auto and mortgage loan interests, and overdraft fees that were incorrectly added to savings and checking accounts.

The government agency explained that more than 16 million people were affected by the bank’s illegal practices. These practices also included wrongfully repossessing the borrowers’ vehicles and unlawfully denying thousands of mortgage loan modifications. Rohit Chopra, the CFPB’s director, said in a statement:

“Wells Fargo’s rinse-repeat cycle of violating the law has harmed millions of American families.”

Wells Fargo has been working to restore its reputation following the scandals. It has faced numerous government sanctions beginning in 2016. Regulators discovered that to meet unrealistic sales goals, bank employees opened millions of accounts illegally.

In 2018 Wells Fargo paid $1 billion in penalties over prevalent consumer law violations. That year, the Federal Reserve entered an order limiting the company’s growth until the Federal Reserve deemed its culture of corporate wrongdoing had been fully addressed and demonstrated a more proper approach to business. The order was expected to remain in place for only a  year or two but is still in place four years later.

Charles Scharf, Wells Fargo’s CEO, said the company’s agreement with the CFPB is part of the company’s approach to “transform operating practices at Wells Fargo and to put these issues behind us.”

Sources: Associated Press and AL.com

Hertz Car-Rental Company to Pay $168 Million in False-Arrest Settlements

Rental car company Hertz agreed to pay $168 million by the end of last year to settle most of the lawsuits brought against it by customers who were wrongly accused of stealing the cars they rented from the company. The settlement will resolve 364 claims against the company — more than 95% of the pending claims.

Hertz, which operates Hertz, Dollar, and Thrifty car rental brands, filed for bankruptcy protection in 2020. The company was struggling under the crushing debt from a decreased demand due to the pandemic. Shortly after the company pulled out of bankruptcy in 2021, a CBS News investigation found that hundreds of Hertz customers had claimed they had been falsely arrested, and some jailed, because the company had reported the cars, they had rented as stolen.

One customer told CBS News he feared for his life after police officers pulled him over and ordered him over a loudspeaker to get out of the car, lift his shirt, and back up toward them. He turned around to see both officers with their guns pointed at him. The report prompted two U.S. senators to call for an investigation into the rental car company.

Some people accused of rental car theft had never rented from Hertz. Other consumers included employees of NASA and those driving Hertz rental cars rented by their insurance companies after an accident. A number of customers who returned their vehicles on time were notified by Hertz that the company had reported the vehicle they rented as stolen, and warrants were issued for the customers’ arrest.

In April, Hertz’s newly appointed CEO Stephen Scherr promised to fix a glitch in the company’s systems that led to the bogus claims of car theft. The admission was the first from the company, which previously denied all false theft report claims. The company blamed the problem on a faulty theft reporting system.

Sources: NPR, CBS News and Autoweek

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

The Latest Look At Case Activity At Beasley Allen

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

Practices

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

Cases

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

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

Resources to Help Your Law Practice

Beasley Allen only handles litigation on behalf of individuals, companies and governmental entities that have been injured or damaged in some manner by a wrongdoer. All of us at the firm are pleased and humbled that our law firm has consistently been recognized as one of the country’s leading law firms representing solely claimants involved in complex civil litigation. It is an honor and a privilege to be trial lawyers for victims of wrongdoing. Our firm does no “defense work” at all for Corporate America. I made that decision in 1979, and the firm has stuck to it ever since. 

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

Co-Counsel E-Newsletter

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

Aviation Litigation & Accident Investigation

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

Webinars

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

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 and online, to a huge number of people. 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 litigation 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 our publications, visit our website at BeasleyAllen.com/Publications.

PRACTICAL TIPS FOR TRIAL

Trial Practice Tips – Rules Of Evidence

Rebecca Gilliland, a lawyer in our Mobile office, brings us Trial Tips fresh off the class action trial against General Motors, which resulted in a $102 million verdict for the class members. Rebecca, who is in our Consumer Fraud & Commercial Litigation Section, was one of our lawyers who tried the case. Rebecca has the following tips for lawyers who try cases before juries and judges.


Having been on both sides of the table in my practice, I’ve learned to focus on something that seems obvious: evidence—specifically, the Rules of Evidence, not necessarily just the evidence to prove your case. From a very broad perspective, because it is the plaintiff’s burden to present our cases through admissible evidence, it is our burden to admit sufficient evidence for the jury to find in our favor. Of course, this creates a major goal of defense counsel: prevent plaintiffs from admitting their evidence.  Consequently, defense counsel tends to be masters of the Rules, and we, as plaintiff’s attorneys, can best succeed by seeking the same proficiency. Here, we discuss some hiccups that can be fixed if you are aware of them early enough but can cause major snares if you wait until the eve of trial to address them.

Authenticity is often the least difficult hurdle to overcome for admissibility, but when it comes to third-party productions, that can be a problem.  For example, if you request and receive documents from a third party, make sure the production includes a certificate of authenticity that satisfies the rules. Also, be sure to confer early in discovery with defense counsel regarding stipulations to authenticity of documents produced during discovery. 

Foundation is, likewise, not usually a problem. However, you need to be sure to have the right witnesses at trial with personal knowledge as to every document you intend to admit. If you have one all-important email and the only witnesses that meet the requirements for foundational knowledge are outside of the subpoena power of the court and are, therefore, unavailable, you need to plan in advance and cover the document thoroughly during pretrial deposition. If you skip the step of authenticating and laying a proper foundation during your deposition, that document may not be admissible. 

Relevancy is probably not much of a concern – you probably are not seeking to admit irrelevant evidence. It is rare when defense counsel wins an argument that the prejudice substantially outweighs the probative value of your most important evidence. Hearsay, on the other hand, is the biggest opportunity for defense counsel to exclude or limit your evidence. Plaintiff’s bread and butter exception is the business records exception in 803(6). The problem in 803(6) typically comes up with (D) because you cannot satisfy the hearsay exception absent the document’s custodian or a qualified witness. In practice, plaintiffs need to remember that every document kept in the ordinary course of business does not automatically satisfy the hearsay exception – plan ahead and get the necessary testimony from an unavailable witness or make sure you have the custodian or qualified witness present at trial for every single document you may want to admit.

It all boils down to becoming a master of your own evidence, both the substantive evidence in your case and the Rules. Have a plan for every document you may want to admit at trial and cover exactly how and through which witness each one will be admitted. If you do this well in advance – while still in discovery – your trial preparations will go more smoothly, and you will be better prepared to actually admit your evidence.


Rebecca has supplied some very good tips that will help lawyers in their trials. If you would like to talk with her, call Rebecca at 800-898-2034 or contact her by using the form at the bottom of this page. She will be glad to talk with you.

RECALLS UPDATE

A large number of safety-related recalls were issued during December. Significant recalls are available on our website, BeasleyAllen.com/Recalls/. We are putting 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 Jere Beasley Report, by using the form at the bottom of this page if you have any questions or to 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

Lawyer And Employee Spotlights

Keith Butterworth

Keith Butterworth, an Investigator in the firm’s Personal Injury & Products Liability Section, is responsible for inspecting vehicles and the scene of a crash, placing roadway-to-vehicle and vehicle-to-vehicle relationships to get a better clarification on what occurred. Keith also performs imaging of the Air Bag Control Module, gathering investigative information and other projects when needed. The investigations Keith conducts aid in determining whether there is a viable product liability case. Keith has been with the firm for three years, and his work is critically important to the firm and our clients. He does an outstanding job, and we are thankful to have Keith with us!

Keith is married to his wife, Denise. Although they have been married for three years, they have been together for six years. They have five children and four grandchildren. Keith says the “ruler” at their home is Camo, a dachshund/beagle mix who loves playing ball and riding the ATV. Keith enjoys spending time with his family, grilling, hunting, and fishing in his spare time.

Before joining Beasley Allen, Keith worked for the Georgia State Patrol, where he says the family perspective was prevalent. Still, it wasn’t until joining Beasley Allen that he felt it was even more prevalent. Keith added, “the Christian atmosphere is also great. I am glad I came to Beasley Allen to be part of such a great family.”

Sarah Dean

Sarah Dean works in the firm’s Mass Torts Section, where she began working as an Intake Specialist in February 2020. She was recently promoted to Staff Assistant and is currently working on acetaminophen claims. Sarah reviews client medical records and makes phone calls to gather additional information when needed. If a lawyer decides to pursue a case, Sarah will assist with drafting complaints and updating fact sheets. We value Sarah’s dedication and hard work and are thankful to have her with us!

Sarah and her family moved to Prattville, Alabama, in January 2020 due to her boyfriend’s change of station in the U.S. Air Force. She has five children (three girls and two boys), two dogs, and three chickens. Sarah says that she and her family love being outdoors, hiking, camping, kayaking, swimming, movies, and spending time with one another.

Sarah shares that her favorite thing about working at Beasley Allen is the opportunity to offer comfort and support to clients who have suffered in some way. She added, “I am grateful to have a  career where the firm is led by experienced, hard-working, and caring individuals. Beasley Allen has allowed me to further my interests in the law and has given me the tools to continue my growth.”

Paul Evans

Paul Evans, who joined Beasley Allen’s Consumer Fraud & Commercial Litigation Section as a law clerk in January 2016, became a lawyer with the firm in October 2017. He remained in the section and now handles class actions, bad-faith insurance claims, and whistleblower claims.

Paul served as co-lead counsel in a $28 million class action settlement between U.S. Financial Life Insurance Company and a 12,000 policyholder class. He was also part of the team that secured a $38.2 million settlement with the named plaintiffs in two class actions and a settlement class of over 10,750 Banner Life Insurance Co. and William Penn Life Insurance Co. universal life insurance policyholders. Both cases alleged that the insurers improperly increased the cost of insurance (COI) charges on universal life policies. Paul says he became a lawyer to practice Beasley Allen’s motto of “helping those who need it most,” adding:  

I knew from a young age I wanted to become an attorney because we have the ability to help our clients and communities. 

Paul attended Troy University, graduating summa cum laude with a political science degree in 2014. While pursuing his undergraduate studies, Paul served as Student Government Association Vice President and Sigma Chi Fraternity Vice President.

Next, Paul earned his Juris Doctorate from Faulkner University’s Thomas Goode Jones School of Law, graduating magna cum laude in 2017. During law school, he served as a Faulkner Law Review editorial board member and Student Bar Association President. He also interned with Alabama Supreme Court Justice Tommy Bryan.

In addition, Paul earned the Dean’s Award, recognizing leadership and academic excellence and five Best Paper awards. He was a Walter J. Knabe scholar and made the Dean’s Honor Roll every semester. Paul was named Regional Champion of the ABA National Appellate Advocacy Competition, Best Brief Finalist and semi-finalist at Faulkner’s First Year Moot Court Competition, and semi-finalist of the Greg Allen Mock Trial Competition.  

Paul says he enjoys practicing law for several reasons, stating:

My favorite part of practicing law is the opportunity to effectuate positive change in corporate conduct and clients’ lives. Clients contact us because some sort of wrongdoing has caused them physical or financial hardship, which is often substantial. The opportunity to help right those wrongs and to make clients’ lives better than when they contacted us is fulfilling. I also enjoy that the practice of law allows me to constantly improve my knowledge of the law and the facts of my cases, as well as interact with lawyers and courts around the country.

Paul believes Beasley Allen’s culture sets the firm apart. He explains:

Beasley Allen’s leadership often encourages everyone at the firm to place their priorities in the following order: faith, family, and work. The firm also prioritizes integrity in all our interactions, including with clients, judges, and attorneys on both sides of a case. These priorities create a unique, firm-wide culture as everyone works towards a common goal of “helping those who need it most.”

Paul is a member of the Alabama State Bar and its Young Lawyers Section, Montgomery County Bar Association and its Young Lawyers Section, Alabama Association for Justice and its Emerging Leaders Caucus, Taxpayers Against Fraud and American Association for Justice. He serves as a board member of Catholic Social Services of Montgomery and Friendship Mission and assists with the Middle District of Alabama’s Pro Se Litigant Assistance Program.

Paul has also been selected to the National Trial Lawyers Association’s Top 40 Under 40 for Civil Plaintiffs. He is an exceptionally talented lawyer who works hard for his clients and is dedicated to the task of seeking justice for them. We are most fortunate to have Paul with us.

Trey Wilkinson

Trey Wilkinson, a Runner in the firm’s Operations department, has been with the firm for over a year. Don’t think that the term “rummer” indicates that job at Beasley Allen is not important. A Runner’s job is essential at Beasley Allen because they involve a wide range of responsibilities, including courier services, purchasing and stocking supplies, traveling with the trial team when needed, and providing help with all sorts of miscellaneous tasks. We are fortunate to have Trey, a very good, dedicated, hard worker with the firm!

Trey shares that he comes from a small family, all of whom he is very proud of and loves dearly! He has one younger sister Alana Wilkinson, who will soon graduate high school this year. Trey enjoys being active, whether playing golf, working out, watching football, or hanging out with friends.

Trey says his favorite thing about working at Beasley Allen is the friendliness each employee brings daily, no matter who they are. He added that everyone is hard-working and outgoing, making working at the firm a pleasure.

Soo Seok Yang

Soo Seok Yang, who joined Beasley Allen in September 2009, practices in our Mass Torts Section. He has worked on many multidistrict litigation (MDL) cases, including JUUL, Xarelto, Fosamax, metal-on-metal hip implants and transvaginal mesh litigation.

Soo Seok was born in Seoul, South Korea. He first came to the U.S. as part of the U.S. Congress – Republic of Korea National Assembly Exchange Program in 2006. In 2007, he graduated cum laude from Handong International Law School (HILS). After graduation, he and his wife came to Montgomery, Alabama, where Soo Seok interned for Alabama Supreme Court Justice Tom Parker. Soo Seok and his wife passed the Alabama State Bar Exam in 2008, becoming among the first Korean lawyers to practice in Alabama.

Soo Seok says he became a lawyer to help others. He observed: 

I remember when I was little, my mother read me a story of Abraham Lincoln. I later realized many great people who helped others and changed the world were lawyers. I also deeply admired Dr. Martin Luther King Jr. and wanted to emulate them to help those who have no voice by being their voice.

Soo Seok finds the legal profession rewarding. He explains, using one of the important cases as proof positions of how that works:

When a case is finally resolved either through trial or settlement, the voices of our clients are finally heard, and people get help; that could be the most exciting time for an attorney. Just recently, in early December, the settlement with JUUL Labs, Inc., the e-cigarette maker, was finalized following three-plus years of hard-fought MDL litigation in both state and federal courts, which will help thousands of young people who got injured by their product. Also, last year, as a direct result of our firm’s work, Johnson & Johnson finally announced it will stop global sales of its cancer-causing talc-based baby powder. When seeing the work that you do positively impact clients’ lives and change the world, not only will you have a great feeling about it, but it will also please our Maker; because He made each one of us with a good purpose.

Soo Seok also practices the firm’s motto of “helping those who need it most” with his involvement in professional organizations and the community. He is an Alabama State Bar and Montgomery County Bar Association member. He was chosen for the Alabama State Bar’s 2017 Leadership Forum. Further, he serves on the State Bar’s Unauthorized Practice of Law Committee and the Indigent Defense Advisory Board for the Alabama Department of Finance.

Soo Seok and his wife are part of the Next Generation Korean American Leaders, selected by the Consul General and Office of Consul General of South Korea in Atlanta, Georgia. From 2010 until 2019, Soo Seok served as deputy executive director and then executive director of the Korean American Association of Greater Montgomery. The Federation of Korean Associations, Southeast U.S.A. presented Soo Seok with three commendation awards for serving the Montgomery area Korean community in 2011, 2012 and 2017.

Soo Seok is a First Baptist Church Montgomery Deacon and International Department worship leader. In addition, he is a founding member of the James W. Wilson Jr. YMCA Advisory Board in Montgomery, where he currently serves as Vice President. He has also been serving as the Ambassador for the Korean Heritage Night of the Montgomery Biscuits, a Minor League Baseball team based in Montgomery.

It’s quite evident that Soo Seok enjoys working at Beasley Allen. He says:

At Beasley Allen, not only do I get to work with many excellent lawyers and staff, but I also met great friends and mentors who truly care about their clients and have a genuine heart for people. If you can work with those whom you deeply admire not just because of their legal skills but also because of the way they live their life and how they serve others, it will be a blessing to be working in that place. Beasley Allen is that place.

In 2019, Soo Seok won the firm’s Chad Stewart Award. The award is named after Beasley Allen lawyer Chad Stewart, who passed away unexpectedly in 2014 at 41. The award honors Chad’s spirit of service to God, his family and law practice. Beasley Allen presents the award each year to a lawyer within the firm who best embodies the qualities Chad demonstrated in his life and law practice.

SPECIAL RECOGNITIONS

Beasley Allen Voted 2022 Best Of Georgia Personal Injury Law Firm

The results are in from the Georgia Business Journal’s Best of Georgia public survey. The public can vote on their favorite businesses across Georgia during the fall, and our Atlanta office earned the coveted distinction of being voted the best Personal Injury Law Firm. The Georgia Business Journal describes the Best of Georgia Award as “the highest and ultimate designation given to the businesses that rake in the greatest number of votes in their category.”

This recognition is quite an honor and a testament to our Georgia team’s hard work. The team is based in Atlanta and led by Managing Attorney Chris Glover and Navan Ward, both respected lawyers in our firm. Our Atlanta lawyers focus on product liability, truck accident lawsuits, and cases involving negligent security and mesothelioma due to asbestos exposure.

In addition to Chris and Navan, lawyers on our Atlanta team are Clay Barnett, Alyssa Baskam, Elliot Bienenfeld, Ben Keen, Houston Kessler, Julia Merritt, Parker Miller, Preston Moore, Brook Ptacek, Rob Register, Tom Willingham and Ken Wilson. These lawyers are to be commended for their dedication to the pursuit of justice for victims of wrongdoing and their hard work on behalf of their clients.

Establishing an office in Georgia’s capitol was the first physical expansion by the firm. As our firm has grown and expanded in other locations across the country, we remain true to our founding motto of “helping those who need it most.” As our Atlanta team has demonstrated, regardless of our location, Beasley Allen lawyers are equipped to handle cases against corporations and others who place profits or their own well-being over the safety of others. Our lawyers’ work has changed how companies do business to ensure the safety of others in the future.

I am especially proud of our Atlanta office. That’s because I have very close family ties to the Peach state. My mother, Florence Camp Beasley, was born and raised in Campton, Georgia. Her father was a Camp, and her mother was a Perry. The Camp and Perry families were from Walton and Barrow counties, respectively. The Camps were based in Campton, which is located between Winder and Monroe. I had an uncle, Kirby Malone, Sr., and a cousin, Tommy Malone, who played football for the University of Georgia. My great uncle Jim Perry was heavily involved in Georgia politics and served on the Public Service Commission for a very long time. I recall visiting his office in about 1948 with my mother and my Aunt Grace Camp Burton. I also recall him telling his nieces not to call him “Uncle Jim” in the office.

We are proud of this recognition and look forward to continuing our work on behalf of plaintiffs in litigation for years to come in Georgia.

Aigner Kolom Elected Vice President of Black Women Lawyers Association of Alabama

Aigner Kolom has been elected Vice President of the Black Women Lawyers Association of Alabama (BWLAA). She will serve from Jan. 1, 2023, until Jan. 1, 2025. Aigner’s duties as Vice President include performing the duties of the President in her absence, disability or at the President’s request. She will also be responsible for ensuring that each Standing Committee is fully operational and abiding by the organization’s Constitution and Bylaws, the policies of the organization and the Standing Committee’s policies and procedures, if applicable.

Aigner has been a BWLAA Board Member since the group’s 2020 inception, serving as Secretary for the past two years. She is also a charter member of the association, founded to work towards “a more equitable, just, fair, and dynamic legal field across the state of Alabama, by providing a variety of support through programming, networks, collaboration, and ultimately cultivating a community that supports the black woman in her fullness.” The group focuses on meeting “the unique needs and lived experiences of black women,” including judges, lawyers, law students and students interested in law. The association’s members represent a wide range of practice areas, ages, regions and life experiences.

The BWLAA held its inaugural Scholarship Gala this past September, presenting deserving black female recipients with funds to pursue their legal education and careers. The group also raised funds to host educational, service and social programs throughout the year.

Aigner joined Beasley Allen’s Mass Torts Section in August 2015. In addition to the BWLAA, she serves her community and peers through numerous professional associations. She is a member and officer of the Montgomery County Bar Association, Capital City Bar Association and Alabama Lawyers Association. Aigner is also active with the Alabama State Bar, American Association for Justice, Junior League of Montgomery and Montgomery Mayor Steven Reed’s Young Professionals Council. Further, she serves on the Common Ground Ministry Board of Directors and is a Leadership Montgomery Torchbearers alumna. Aigner, a tremendously talented lawyer, has been named to the Mid-South Super Lawyers “Rising Stars” list since 2020.

Ali Hawthorne To Lead As President Of The Montgomery County Bar Association In 2023

Ali Hawthorne, a lawyer in the firm’s Consumer Fraud & Commercial Litigation Section, has been named the 2023 President of the Montgomery County Bar Association (MCBA).

Ali has focused her practice primarily on complex litigation on a national level. In addition to representing clients in litigation, she assists with managing the Consumer Fraud & Commercial Litigation Section, which allows her to work with all the section’s lawyers on successfully pursuing their cases.

Ali served as the MCBA’s Vice President in 2022 and the Treasurer in 2021.  Before serving on the Board of Directors, Ali was the MCBA Young Lawyers Section President. She has served in many other leadership roles, including the Executive Board for the Alabama State Bar Leadership Forum Alumni Section, the Alabama State Bar Leadership Forum Selection Committee, and various Alabama State Bar Task Forces. Ali also provides leadership to the MCBA’s Volunteer Lawyer Program as a member of the group’s Board of Directors.

It should be noted that Ali has been recognized for her work by national organizations, including Super Lawyers, which has selected her to its “Rising Stars” list every year since 2016. Ali was also named a “Top 40 Under 40” lawyer by the National Trial Lawyers, a designation extended to only a few of the most qualified lawyers in each state.

The MCBA was established in 1915 and is a voluntary association of legal professionals in Montgomery County, Alabama. Its mission is to advance professionalism, promote practice development, encourage public service, foster camaraderie among its members, and support access to legal services for all. The Board of Directors and full-time Executive Director guide the organization’s work. Ali says:

I look forward to helping guide the Montgomery County Bar Association and providing leadership to an organization committed to assisting local lawyers in succeeding and providing the best representation possible to their clients.

Source: Montgomery County Bar Association

Clinton Richardson Elected 2023 Magic City Bar Association Parliamentarian

During the Magic City Bar Association’s December meeting, Beasley Allen lawyer Clinton Richardson was elected Parliamentarian. Securing this position puts Clinton in the order of succession to eventually serve as the group’s Vice President next year and President in 2026.

Clinton is a lawyer in the Mass Torts Section. He is working on the JUUL multidistrict litigation (MDL) and the social media MDL and assisting with investigating the viability of other prospective actions. Before joining Beasley Allen, Clinton worked for other good law firms, litigating matters in the areas of employment discrimination, federal criminal defense, and 42 USC § 1983 litigation. He also worked for the United States Attorney’s Office in the Northern District of Alabama, where he prosecuted False Claims Act cases, defended against claims premised on the Federal Torts Claims Act and responded to numerous habeas petitions.

The persistent intellectual rigor of the legal profession—driven, in part, by the challenge of developing and articulating arguments to address dynamic fact patterns that implicate complex areas of the law—is why Clinton says he became a lawyer. These things are what he continues to enjoy the most about practicing law. Clinton says he feels blessed to have joined the Beasley Allen law firm, a firm renowned for its stellar reputation for integrity and legal expertise.

In 2017, Clinton was selected to the Midsouth Super Lawyers Rising Stars list and was a finalist for the 2014 Montgomery Volunteer Lawyers Program Lawyer of the Year award. Last June, he received the Alabama State Bar’s President’s Award for his outstanding work on a virtual summit entitled “Implicit Bias and its Impact on the American Criminal Justice System.” Each year the current bar President presents the award to bar members who best exemplify “Lawyers Render Service,” the Alabama State Bar motto.

The Magic City Bar Association was established “in November of 1984 in Birmingham, Alabama, the birthplace of the Civil Rights Movement. It was founded in response to a need to promote the professional advancement of African-American attorneys, to foster improvement of the economic condition, to protect the civil and political rights of all citizens, and to uphold the honor and integrity of the legal profession.”

We congratulate Clinton and are proud of his leadership in this and other groups in which he is a member. We are blessed to have young lawyers like Clinton as part of the Beasley Allen team and look forward to seeing more of Clinton’s accomplishments in the future.

Source: Magic City Bar Association

Mobile Office Engaged In Local Community

During last year’s holiday season, Beasley Allen’s Mobile office focused on its mission of “helping those who need it the most.” Lawyers and staff adopted six “Angels” from the Salvation Army of Coastal Alabama’s Angel Tree program. Each year, the program provides Christmas gifts to children under 12 from families in need.

Supporting the community isn’t just a holiday effort for our Mobile office. Earlier in the year, the firm sponsored the Port City Clay Shoot, a skeet shooting event at Taylor Creek Sporting Clays in Theodore, Alabama, that benefitted Magic Moments. The nonprofit is the only wish-granting organization in the state dedicated to helping local children with chronic, life-threatening illnesses. Beasley Allen Principal Evan Allen said:

We have always had lawyers on the Magic Moments board in Montgomery. My wife recently joined the organization’s Mobile board. The group serves a great cause by providing opportunities for children and families to find moments of joy while facing devastating illnesses.

Beasley Allen also participates in the Mobile Bar Association (MBA) food drive to help those in need. In 2021, lawyers and staff from our Mobile office rallied together. They donated $1,400 in canned goods to the MBA food drive to meet the needs of residents of the coastal community impacted by Hurricane Ida. The Category 4 storm with 150-mile-per-hour winds killed at least 26 people and knocked out power to more than a million homes.

FAVORITE BIBLE VERSES

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

Paul Evans

Paul shares a verse from the Book of Numbers explaining how it is deeply special to him. He said, “My wife and I chose this verse as our prayer for our daughter. We have it written on a canvas in our daughter’s nursery as a daily reminder to pray for and thank God for His protection, grace, and love.”

May the Lord bless you and protect you. May the Lord smile on you and be gracious to you. May the Lord show you his favor and give you his peace.

Numbers 6:24-26

Soo Seok Yang

Soo Seok shares the following three verses. He says the first verse “is the key life verse of my mother who taught me the verse by living it.”

But seek first his kingdom and his righteousness, and all these things will be given to you as well.

Matthew 6:33

He says his favorite verse from Proverbs teaches him how his attitude should be towards all matters in life and how we should fully trust God always. 

In all your ways, acknowledge Him and He will make your paths straight.

Proverbs 3:6

Soo Seok says another favorite verse shares the Good News everyone should hear. He said this verse inspired a song he wrote, and the words “while we were still sinners” especially moved him.

But God demonstrates his own love for us in this: While we were still sinners, Christ died for us.

Romans 5:8

Keith Butterworth

Keith Butterworth says his favorite verse tells him things change in life, but the one constant is that our God is always with us and never changes.

The grass withers, the flower fades; but the word of our God stands forever.

Isaiah 40:8

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

Tyner Helms Receives Beasley Allen’s 2022 Chad Stewart Award

Beasley Allen awarded Tyner Helms the “Chad Stewart Award” for 2022 last month. This award is named after Beasley Allen lawyer Chad Stewart, who passed away unexpectedly in 2014 at the young age of 41. The annual award honors Chad’s spirit of service to God, his family, and the practice of law. Beasley Allen presents the award each year to a Beasley Allen lawyer who best exemplifies the qualities Chad demonstrated in his life and law practice.

Christians are encouraged to look for signs from God of how he can use them to glorify him by helping. Tyner, a Christ-follower, took this mission to heart and performed one of the most selfless acts someone can do for another person. He is an ideal candidate for the Chad Stewart Award. 

Last summer, while many people were vacationing, Tyner was recovering from surgery that saved a stranger’s life. A few months earlier, during a small group study at the church Tyner and his wife Caitlin attend, another member asked the group to pray for his father, Birmingham lawyer Ernie Cory. Earnie had overcome Hodgkin’s lymphoma years earlier, but the cancer treatment damaged his kidneys. He was on dialysis and in dire need of a kidney transplant.

Ernie’s plight especially touched Caitlin, and after finding out she wasn’t a donor match, Caitlin encouraged Tyner to get tested. He did and discovered he was a suitable match. Tyner knew the message God was sending him.

A few weeks later, on July 8, Tyner underwent surgery to have one of his kidneys removed and placed in Ernie’s body. Tyner recovered quickly from surgery, and Ernie’s health slowly improved. Within a few weeks, Ernie had regained enough strength to return to work and, most importantly, walk his daughter down the aisle at her wedding in October.

Donating a kidney isn’t something to take lightly, but Tyner felt safe in God’s hands. He returned to work a new man. Tyner said:

In this day and age, under the right circumstances, people can literally give an organ and save someone’s life, and that’s an incredible thing.

Tyner works in Beasley Allen’s Consumer Fraud & Commercial Litigation Section. He primarily handles litigation related to Fiat Chrysler emission cheating software and class action litigation against Voya Financial.

He has received many accolades for his professional work, as well. The National Trial Lawyers recently named Tyner an Alabama Top 40 Under 40 Civil Plaintiff Trial Lawyer, an honor only given to a select group of lawyers for their superior skills and qualifications in the field. He was also selected to the Mid-South Super Lawyers “Rising Stars” list in 2022. But Tyner will tell you that receiving the Chad Stewart award tops anything he has achieved in his professional life. We are blessed to have Tyner in the firm.

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. His short-lived political career ended in 1978 when he ran, unsuccessfully, for Governor.

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 of products liability, insurance fraud, business litigation and personal injury.

It has been more than 40 years since he began the firm with the intent of "helping those who need it most." Today, Beasley Allen's primary offices are based in Atlanta, Georgia; Dallas, Texas; Mobile, Alabama and Montgomery, Alabama. Beasley Allen is one of the country's leading firms involved in civil litigation on behalf of claimants. The firm has been privileged to represent hundreds of thousands of individuals who have been wronged by no act of their own.

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.

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