Misuse Of Bankruptcy By Corporate America
A Brookings Institute survey examining the use of bankruptcy during the pandemic revealed, much to the researchers’ surprise, that while consumer and commercial bankruptcy filings decreased, large corporations’ filings increased. Digging a little deeper, the researchers looked at patterns of Corporate America’s misuse of the bankruptcy system over time. Wealthy companies and individuals, including Purdue Pharma and its owners, the Sackler family, Johnson & Johnson and 3M, have manipulated the U.S. Bankruptcy Code to escape responsibility for their wrongful actions that hurt others, causing severe harm.
Sadly, some rulings favoring Corporate America reward these essentially pay-to-play manipulative tactics. The message to plaintiffs whose lives have been devastated by opioids, talcum powder, earplugs or other harmful products and even victims of sexual assault is that if defendants have enough money and can pay the right price, they will escape any further accountability.
Let’s take a look at some of these egregious misuses of the bankruptcy system in the United States.
Purdue Pharma and The Sackler Family
One of the tactics Corporate America uses is third-party or nondebtor releases. When a large corporation files a Chapter 11 bankruptcy, the process includes restructuring the debtor company. This includes dismissing its financial obligations that existed before it filed for bankruptcy. This protection doesn’t usually extend to other third parties or nondebtors (i.e., company directors or officers) involved in the debtor’s wrongful actions. However, the debtor company can ask the court to expand the protection to cover those third parties without them also filing bankruptcy. This request is often made in exchange for a sizable payment from third parties.
The third-party protection provision was established by Congress in 1994 for asbestos manufacturers’ liability. Bankruptcy laws don’t address whether such releases are allowed in cases other than asbestos-related claims. Yet, since this protection was enacted, most circuit courts have allowed third-party releases to stand in different types of cases.
The Sackler family members who owned Purdue Pharma took advantage of third-party releases when the company legitimately filed for bankruptcy. It has faced many opioid lawsuits over its highly addictive narcotic painkiller OxyContin and landed in dire financial straits. However, the Sackler family members were not facing financial troubles – it was reported that the family members earned $10 billion in revenue from opioid sales – therefore, they did not file for bankruptcy. Instead, they agreed to pay more than $4 billion in exchange for the court’s acceptance of third-party releases under Purdue’s bankruptcy.
In December 2021, U.S. District Judge Colleen McMahon in New York struck down the agreement, finding that the bankruptcy judge had no authority to approve such a release for people who hadn’t filed for bankruptcy. However, in May 2023, the Second Circuit Court of Appeals overruled Judge McMahon. It approved the more than $4 million agreement, including the third-party release of the Sackler family members.
The Second Circuit panel relied on Section 1123(b)(6) of the Bankruptcy Code, determining that it combined with another section of the code and Second Circuit precedent, gives bankruptcy judges the authority to grant such releases.
Experts believe the generic basis on which the decision relies clears the path for companies to push the boundaries of restructuring plans even further. The decision also deepened the circuit split on the issue, which can only be resolved through action by the U.S. Supreme Court or Congress. Still, the Second Circuit’s decision favored Corporate America and protected the Sackler family members, absent their own bankruptcy filing, from accountability for their role in exacerbating the opioid crisis. Communities nationwide are still reeling from the effects of the crisis that killed hundreds of thousands of Americans.
Corporate America also uses various methods of blocking and stalling justice.
Johnson & Johnson
For example, readers will recall previous discussions in the Report about Johnson & Johnson (J&J) employing the Texas Two-Step maneuver to shield the corporation from billions of dollars in liability to thousands of plaintiffs harmed by J&J talcum powder products. In 2021, J&J reported $82 billion in annual revenue.
Early in October 2021, Johnson & Johnson Consumer, Inc. (Old JJCI), based in New Jersey, formed an entity called Royalty in North Carolina. Old JJCI then converted into a limited liability company in Texas, enabling it to utilize Texas’ divisive and highly questionable merger statute (Texas Two-Step) as a vehicle to split into two successor entities and assign assets and liabilities to those entities.
Old JJCI split into LTL, the debtor in bankruptcy, which received all liabilities and intangible assets associated with its talcum powder operations. Simultaneously, Old JJCI organized another entity that immediately merged into a New Jersey corporation called Johnson & Johnson Consumer, Inc. (New JJCI). Old JJCI’s remaining assets and liabilities were assigned.
The same day, on Oct. 12, 2021, LTL re-domiciled in North Carolina and was given ownership of Royalty. Two days later, on Oct. 14, 2021, LTL filed for Chapter 11 bankruptcy in North Carolina under federal bankruptcy laws. Through this maneuvering, J&J, which did not file for bankruptcy, has attempted to reap the benefits of bankruptcy, using LTL (now based in New Jersey) to divert the debts and limit its legal liability while reforming a New JJCI.
A federal bankruptcy court in New Jersey supported the maneuvering by granting J&J’s requested stay and halting some 38,000 talc-related legal cases for over a year. In January 2023, the U.S. Court of Appeals for the Third Circuit returned the case to the lower court with the instruction to dismiss the bankruptcy. Shortly after the loss before the Third Circuit, J&J announced it would pay $8.9 billion to tens of thousands of people with claims over talc-containing products linked to their cancer diagnoses.
Beasley Allen lawyers exposed the sham settlement for what it is – a second attempt at bankruptcy and an effort to shortchange cancer victims. Our lawyers explain that a conservative estimate of the direct treatment costs and lost wages for an individual claimant in this litigation averages nearly $500,000, even without other complications. The medical costs incurred by mesothelioma victims are even higher. J&J’s proposed $8.9 billion settlement would translate to less than $120,000 per case.
Last month, we reported that Andrew R. Vara, the U.S. Trustee overseeing the J&J/LTL bankruptcy scheme, filed to dismiss it as a fraudulent Chapter 11 reorganizing case. He said the companies’ petition shows their “mistaken belief that the best cure for bad faith is more bad faith.” Meanwhile, the maneuvering and charade devised by J&J delays justice for its victims – many who have or will die before seeing justice carried out. This is neither efficient nor swift, as our civil justice process promises. We will keep readers updated on the developments in this case.
3M Subsidiary, Aearo Technologies
3M has also been holding up justice for those injured by defective earplugs made by one of the company’s subsidiaries. Last July, 3M filed for bankruptcy for Aearo and six related companies. It argued the lawsuits should be resolved in bankruptcy court, claiming the MDL process had failed and only a bankruptcy proceeding could deliver a fair outcome. Yet, in the same filings, the company only committed $1 billion to resolve roughly 230,000 claims. But more concerning is that Aearo created the bankruptcy circumstances by agreeing to indemnify 3M for all liability related to the defective earplugs just days before the filing. The company is attempting to leverage the Texas Two-Step and third-party releases – despite 3 M’s owning Aearo.
The Indiana Bankruptcy judge, Jeffrey J. Graham, overseeing Aearo’s Chapter 11 filing, ruled last August that the filing would not cover the non-bankrupt 3M. Then, last month, Judge Graham dismissed the case after determining “neither 3M nor Aearo were in sufficient financial distress,” as Law360 reported. Judge Graham approved Aearo’s appeal to the Seventh Circuit, allowing it to bypass the usual route through the district court. He reasoned that the Seventh Circuit could clarify the “good faith” standard in a bankruptcy filing, for which the circuit has not yet adopted a “definitive standard.” It will be interesting to see the Seventh Circuit’s ruling, and we will keep readers updated on developments.
Fighting the maliciousness and devious tactics of wealthy corporations and individuals is not easy. It takes tremendous time and resources to face down these well-funded giants. Yet, holding wrongdoers accountable and standing in the gap for those injured and with limited ability to fight such battles is at the heart of our law firm. The misuse of the country’s bankruptcy system and manipulative tactics must be exposed, as this goes against the fundamental principles on which this country was founded. It opposes the essence of our Constitution and what our country’s founders sought in a new country.
Sources: Brookings Institute, NPR, National Law Journal and Law360
THE TALC LITIGATION
The First Post-Bankruptcy Talc Trial Begins
Doctors have told Anthony (Emory) Valadez that he does not have long to live. Mr. Valadez, age 24, has been anxiously awaiting his day in court against Johnson & Johnson (J&J). That day has been delayed numerous times, most recently by J&J’s sham bankruptcy filings.
Joseph Satterley of the Oakland-based Kazan Satterley & Greenwood law firm advocated for Mr. Valadez’s trial to move forward. The U.S. Bankruptcy Court agreed, based on the terminal prognosis, after a second bankruptcy filing.
Mr. Valadez was diagnosed with pericardial mesothelioma, a condition he and plaintiff experts believe is due to long-term use of J&J’s baby powder. He is in constant pain and suffers greatly. Just last month, Mr. Valadez’s medical team deemed him too sick for scheduled chemotherapy treatment.
J&J lawyers claim that research finding asbestos in talc during the 1970s is irrelevant today. That assertion has no merit nor any basis in fact. The Valadez trial team strongly disputes J&J’s claim and has shown the jury evidence of multiple instances where talc has been found to contain asbestos.
Mr. Valadez’s occupational health expert witness, Dr. David Egilman, testified that J&J manipulated scientific evidence to government organizations like the Food and Drug Administration (FDA), including withholding data to prevent regulation of their talc powder product.
Beasley Allen lawyers join Mr. Satterley in fighting, day and night, for justice for all talc clients. J&J will eventually have to pay for its massive wrongdoings and total disregard for human life.
The case is Valadez v. Johnson & Johnson, case number 22CV012759, in the Superior Court of California, Almeda County.
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 are focused on Johnson & Johnson’s abuse of the bankruptcy system. The following Beasley Allen lawyers are members of the Talc Litigation Team:
Leigh ODell, Ted Meadows, Kelli Alfreds, Ryan Beattie, Beau Darley, David Dearing, Liz Achtemeier, Jennifer Emmel, Lauren James, James Lampkin, Caty OQuinn, Cristina Rodriguez, Brittany Scott, Charlie Stern, William Sutton and Matt Teague.
Charlie Stern and Will Sutton are on the litigation team but exclusively handle mesothelioma claims. Charlie and Will are looking at industrial, occupational, and secondary asbestos exposure resulting in lung cancer or mesothelioma and claims of asbestos-related talc products linked to mesothelioma.
THE ASBESTOS LITIGATION
Propounding Effective Offensive Discovery In Mesothelioma Cases
Effective offensive discovery targeting defendants is an essential aspect of any case. But in the world of asbestos litigation, where many defendants have been involved in the litigation for decades, a lawyer can be tempted to simply rely on prior discovery responses when prosecuting a current case. This strategy can be sufficient in many instances but is never the most effective.
Aggressive, case-specific offensive discovery serves many purposes with asbestos cases. First, it separates your case, your client, and your law firm from other lawyers’ cases around the country who may rely on old discovery from past cases. Defendants quickly realize that this is not just another asbestos case and that the lawyer handling it is serious about litigating.
From a case work-up perspective, the facts and circumstances can vary from case to case, so your discovery should be tailored to each case. For example, in a railroad case, it may be necessary to prove that the railroad defendant was aware that asbestos was hazardous in the 1970s. There are likely prior discovery responses related to that defendant that can help you demonstrate the defendant’s awareness. But what about proving there was asbestos on the locomotives, rail cars and cabooses at issue?
Some lawyers may simply rely on a witness discussing asbestos and general information related to the use of asbestos in the industry. That’s not the way it works at Beasley Allen. In one such case, plaintiffs sought information about the precise locomotives, rail cars and cabooses. Using the defendant’s unique equipment classification numerical codes, Beasley Allen lawyers sought engineering specifications, blueprints, work requisition orders and repair records for the trains in question. Of course, the defendant objected and tried its best to avoid the production of these documents, but those efforts failed.
The production was a treasure trove of information. Not only was asbestos used, but it was also specified and required. It was in the equipment’s brakes, insulation material, and gaskets. In that case, the defendant was in a bind that it otherwise would not have been. Had this discovery never been served, the defense lawyers would have argued that there was no evidence of actual asbestos on the trains. They could not do that anymore. This led to a fantastic result for our clients, and this is the same approach Beasley Allen lawyers take with all our asbestos cases. What may be enough for some lawyers – relying on past discovery – is never enough for Beasley Allen’s asbestos lawyers.
If you need more information or want to discuss a potential asbestos case, contact Charlie Stern, the lead lawyer on our firm’s Asbestos Litigation Team. He can be reached at 800-898-2034 or by email at [email protected].
The Beasley Allen Asbestos Litigation Team
As we stated last month, there has been no slowdown in the asbestos litigation. Case filings continue to increase nationwide. The Beasley Allen Asbestos Litigation Team is headed by Charlie Stern in our Dallas, Texas, office. Charlie has years of experience in asbestos litigation and is a perfect fit to lead the team. Other team members are Will Sutton and Cindy Lopez. Rhon Jones, who heads our Toxic Torts Section, works with the team. If you need assistance with cases involving asbestos products, contact one of the team members by phone at 800-898-2034 or by using the contact form below.
THE CAMP LEJEUNE LITIGATION
Camp Lejeune Litigation Update
Contrary to popular belief, Camp Lejeune claims are not “low hanging fruit” claims with an easy process to resolve the case and get compensation for your client quickly. This may be the largest piece of misinformation circulating concerning this litigation. While money has been set aside for recovery, there is no working system in place that has analyzed an individual case and offered settlement money to an impacted claimant. Even lawmakers in Washington are questioning why the U.S. Department of the Navy has yet to issue a single settlement offer to an individual who has filed an administrative claim.
On top of the administrative concerns, the litigation itself is uniquely complicated. A suit covers a period starting over 70 years ago. This brings up a whole host of issues: obtaining military records placing an individual on base at a specific site of exposure; obtaining medical records confirming a diagnosis when most medical records are purged after ten years; and obtaining information on clients who have long since passed away since their time spent at Camp Lejeune. Needless to say, these will not be easy cases to resolve.
Once leadership is appointed in the Eastern District of North Carolina, a tremendous amount of work is needed to work up individual cases to the point where the case is viable. Time has shown that these cases will have to be resolved in civil court rather than at the administrative level.
Beasley Allen lawyers are working hard, having started before The Camp Lejeune Justice Act passed, and the work has dramatically increased since it passed. There are numerous Beasley Allen Camp Lejeune webinars addressing the various issues in this litigation that are available at BeasleyAllen.com.
Beasley Allen Camp Lejeune Litigation Team
Our firm has 12 lawyers working on this litigation, including Toxic Torts Section Head Rhon Jones. You can contact Rhon Jone or any other lawyers on our team should you need help with a claim or have questions. The lawyers include Leslie LaMacchia, Julia Merritt, Will Sutton, Ryan Kral, Trisha Green, Ken Wilson, Matt Pettit, Tucker Osborne, Gavin King, Elizabeth Weyerman, Maggie Arellan and Marion Brummal.
SOCIAL MEDIA LITIGATION
Social Media Addiction/Personal Injury Litigation Update
Media Addiction/Personal Injury Product Liability multidistrict litigation (MDL) involving the world’s largest social media products continues progressing under U.S. District Judge Yvonne Gonzalez-Rogers in the Northern District of California, Oakland Division. Similarly, in California state court, the Judicial Council Coordination Proceedings (JCCP) is moving forward alongside the MDL in the Superior Court of Los Angeles County under Judge Carolyn B. Kuhl. The defendants include Meta (Facebook and Instagram), Snapchat, and TikTok. A team of 22 lawyers, the Plaintiffs’ Steering Committee (PSC), has been appointed to lead the entire litigation. Beasley Allen lawyer Joseph VanZandt has been appointed to the PSC.
On June 1, the plaintiffs filed their opposition to the defendants’ Motion to Dismiss in the MDL. The defendants were to file their reply briefs by June 30. Discovery, not yet begun, will move forward in the MDL once the plaintiffs defeat the defendants’ impending Motions to Dismiss relating to the plaintiffs’ claims. Likewise, in the JCCP, plaintiffs are to identify three cases to be the subject of demurrers. The defendants must file any joint and individual demurrers by Aug. 9.
In light of the recent U.S. Surgeon General warning, cases continue to be filed against Meta Platforms, Inc., et al. Currently, 151 personal injury cases are filed in the MDL, including 48 cases Beasley Allen has filed. In the JCCP, our firm has filed 72 lawsuits for injured young people. Additionally, Beasley Allen has recently started filing on behalf of school districts across the country, as they, too, have had to invest resources in combatting the unprecedented mental health effects social media has caused young people.
Beasley Allen lawyers continue to be heavily involved with the federal and state court litigations against the social media companies, representing clients in both courts. Other lawyers are 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.
If you need help on a case or more information regarding personal injury social media litigation, contact a lawyer on the firm’s Social Media Litigation Team. The team is listed below with contact information.
Louisiana Passes Bill Requiring Minors To Get Parent’s Permission To Sign-Up For Social Media
Louisiana lawmakers passed a bill to require minors to get their parent’s permission to sign up for online accounts. If Gov. John Bel Edwards signs the bill, parents could deny their children access to social-media platforms and multiplayer games. They could also cancel their children’s existing accounts. The bill is similar to a state law prohibiting minors from making contracts with brick-and-mortar businesses.
Earlier this year, Utah passed a law requiring social-media platforms to verify that users are at least 18 or have their parents’ permission. Parents will also have full access to their child’s account. The law goes into effect on March 1, 2024. Arkansas passed a similar law, which goes into effect in September. Other states are also working on similar regulations to protect minors from the dangers of social media.
Social media companies say age verification laws pose privacy risks. Users have to share sensitive information to be verified. Many social-media companies say they already have policies prohibiting children under 13 from signing up. Some also have ad-tracking protections and content restrictions for users under 18.
In May, the U.S. surgeon general warned about the potential risks of social media to young people. He also urged lawmakers and social media companies to strengthen standards to protect young users.
Source: The Wall Street Journal
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 Medial 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 Vaugh and Seth Harding. Andy Birchfield, who heads our Mass Torts Section, also works with the team. He can be reached at 800-898-2034 or by email at [email protected].
Joseph VanZandt, who leads the team, is co-lead counsel for the Judicial Council Coordination Proceeding (JCCP) for the plaintiffs in California state court. He is also a member of the Plaintiffs Steering Committee, helping lead the federal social media multidistrict litigation (MDL).
It should be noted again that the class action aspect of the Meta Litigation is handled by lawyers in our Consumer Fraud & Commercial Litigation Section.
AN UPDATE ON MOTOR VEHICLE LITIGATION
$8.5 Million Jury Verdict In Mobile Against Nissan
A Mobile jury has awarded an $8.5 million verdict after Beasley Allen lawyers Evan Allen, Kendall Dunson, and Mike Andrews successfully proved that defendants Nissan North America, Inc. and Nissan Motor Co., Ltd, were responsible for a young female (plaintiff) being seriously injured by the defective airbag the automaker used in the vehicle in which the plaintiff was riding at the time of a crash.
In October 2018, the plaintiff was a passenger in a 1998 Infiniti QX4 on McVay Drive in Mobile County, Alabama. Suddenly, a 2015 Ford Fusion crossed the lane of the plaintiff’s travel, colliding with the QX4 at 10 mph. The QX4’s passenger’s side airbag was deployed in this low-impact collision with excessive force, striking and injuring the plaintiff.
Nissan was negligent in designing, testing and manufacturing the QX4. Based on the evidence at trial, the automaker knew or should have known that the defective airbag increased the safety risk to the vehicle’s occupants. Nissan’s liability was based on the Alabama Extended Manufacturer’s Liability Doctrine. Reasonable alternative airbag designs existed that would have prevented the injuries that the plaintiff experienced. Nissan elected not to use these good designs. Instead, the automaker used the defective design that caused the plaintiff’s injuries and damages.
It’s significant that the verdict, in this case, was 100% compensatory. The trial evidence totally supports the amount of the award. The case was filed in the Circuit Court of Mobile County, Alabama. Evan Allen, Kendall Dunson and Mike Andrews from our firm, along with Britt Bethea of Greene & Phillips, LLC, represented the plaintiff in this case.
Beasley Allen Continues To Represent Clients Injured By Defective Airbags
With many automobile crashes, product defects have caused horrible injuries and deaths to drivers and passengers of those vehicles. Unfortunately, vehicle airbags, though designed to protect occupants in the event of a crash, have caused many injuries and deaths. The Mobile case handled by our firm discussed above is a prime example of airbag problems.
While airbags have been the subject matter of many defects due to failure to deploy timely, one sometimes overlooked defect is an overly aggressive and improperly tethered airbag. When an airbag is excessively aggressive and improperly tethered, instead of protecting occupants, the airbag can cause horrible injuries, including brain damage, blindness and death. An airbag may deploy too aggressively and extend too far, thus contacting vehicle occupants at unintended speeds and locations.
Tom Willingham, a lawyer in our Personal Injury & Products Liability Section, and lawyers in our Mobile, Alabama, office represent an individual impacted by a malfunctioning airbag in a Honda vehicle. The case is set for trial in July 2024, and we will keep our readers informed of any developments in this case as it moves forward.
Deadly Impact Of Seatbelt Failures
Lawyers in our firm are currently investigating and pursuing a number of cases involving various seatbelt-related defects. Many auto accidents involve ejection from the vehicle or the occupant moving around unrestrained inside the vehicle upon impact. The most common misconception in these instances is that the injured person was not belted; however, this is often untrue. We know from manufacturer recalls, government investigations, and our litigation that seatbelts can and do fail even when used correctly.
Vehicle seatbelts fail in many ways, including false latching of the buckle, spooling out of the belt, and/or pretensioner failures. False latching occurs when the belt buckle feels, looks, and sounds buckled despite not actually locking into place. Belt spooling occurs when all or part of the seatbelt webbing releases during an accident. A retractor failure prevents the belt from locking tightly around the occupant, thus reducing the safety aspect of the belt altogether. Pretensioner failure occurs when the mechanism intended to tighten slack in the belt malfunctions, thus failing to provide proper seatbelt geometry during a crash.
In our Mobile office, Beasley Allen lawyer Evan Allen recently represented a family forever impacted by a seatbelt failure. Catherine Pinkney was riding in the passenger seat of a 2000 Ford Explorer and was properly wearing her seatbelt when she was ejected from the vehicle during a rollover crash. Her seatbelt failed to restrain her and allowed her to leave the vehicle, resulting in her death. Evan secured a settlement for the family of Ms. Pinkney. The amount of the settlement is confidential.
Every instance of seatbelt failure above can result in serious injury or death. Beasley Allen lawyers will continue aggressively pursuing actions to prevent these types of injuries and ensure that manufacturers are held responsible for the injuries and deaths caused by defective seatbelts.
If you or a loved one was seriously injured by a seatbelt failure or a death was involved in a crash, or if you have any questions about any aspect of this matter, contact Sloan Downes, Section Director for our Personal Injury and Products Liability Section, at 800-898-2034 or by using the contact form below.
A Large Honda Recall Announced
Honda is recalling 1.2 million of its vehicles in the U.S. after it was revealed the rearview camera image might fail to display on the dashboard screen. Honda said the issue could be attributed to a defective coaxial cable connector, according to the National Highway Traffic Safety Administration (NHTSA). The recall includes:
- Odyssey minivans from 2018 and 2023
- Pilot SUVs from 2019 to 2022
- Passport SUVs from 2019 to 2023
The NHTSA report cites an absence of a rearview camera image could “impair driver visibility and increase the likelihood of a collision.” Honda has received nearly 274,000 warranty claims from May 2017 through June 8, but there have been no reports of injuries. Dealers will replace a cable harness and install a straightening cover at no cost to owners, who will be notified by letter starting July 24.
Ford Expands SUV, Truck Recall Due To Fire Risk
Ford Motor Co. is dealing with a series of recalls due to fire risks. Last month, the company expanded a recall for 125,000 SUVs and trucks. The vehicles’ engines could fail and catch fire. The recall affects certain 2020-2023 model year Escape and Lincoln Corsair SUVs and Maverick compact pickups with 2.5L hybrid or plug-in hybrid engines.
In July 2020, Ford recalled 200,000 Escape, Corsair, and Maverick vehicles after receiving 23 reports of fire or smoke. Those reports were likely due to a block or oil pan breach. The company warned vehicle owners to park their cars and shut them off if they hear unexpected engine noises, notice a reduction in vehicle power, or see smoke.
Since then, Ford has received at least three reports of fires in vehicles that had received the 2022 recall fix. A new fix is currently under development.
Ford recalled 142,000 Lincoln MKC SUVs in the U.S. in May due to fire risks. The automaker told owners to park the SUVs outside and away from any structures until they repair their vehicles. That fix involves adding an in-line fuse to the battery monitor sensor power circuit.
Jaguar Recalls I-Pace Electric Vehicles Due To Fire Risk
Jaguar recalled more than 6,000 I-Pace electric SUVs in the U.S. The vehicles’ batteries can catch fire. The luxury car maker received eight reports of vehicle fires in the U.S. beginning in July 2019. The recall affects all 2019 through 2024 model-year I-Pace SUVs.
Jaguar told owners to park their vehicles outdoors and away from structures until they repair their cars. The company also advised owners to charge their vehicles outdoors.
LG Energy Solution makes the vehicles’ high-voltage batteries. The company and Jaguar are working to find the cause of the battery fires. In the meantime, Jaguar is updating the I-Pace battery energy control module software. The repairs will be done by a dealer or online. Dealers will replace batteries if needed.
In April 2022, the U.S. National Highway Traffic Safety Administration (NHTSA) investigated the battery maker after five automakers issued recalls due to fire risks. Most of the recalls were linked to LG Energy Solution lithium-ion batteries. Those recalls, issued by General Motors, Mercedes-Benz, Hyundai, Stellantis and Volkswagen, involve more than 138,000 vehicles.
Ford and BMW have also recalled electronic vehicle batteries in recent years. The U.S. National Transportation Safety Board (NTSB) also investigated Tesla’s high-voltage lithium-ion batteries. The NTSB said Tesla’s batteries posed safety risks to first responders after crashes.
Source: Associated Press
Cyclists Traffic Accident Deaths Since 1975
More cyclists died in traffic accidents in 2021 than in any other year since 1975, according to a new report from the National Highway Traffic Safety Administration (NHTSA). Cycling fatalities occurred in every state that year. More than half of the deaths happened in Florida, California, Texas, New York, and Arizona.
In 2021, 966 cyclists were killed in traffic crashes—18 more than in 2020 and 108 more than in 2019. There were also 41,615 cyclists injured in traffic accidents in 2021—a 7% increase over 2020. Ken McLeod of The League of American Bicyclists said:
Traffic fatality data in the United States is trending in the wrong direction. Especially for people outside of vehicles, the last decade has seen consistent increases in traffic deaths leading to multi-decade highs.
People “outside the vehicle” refers to motorcyclists, pedestrians, pedal cyclists, and other nonoccupants of vehicles. NHTSA’s report found that people killed “outside the vehicle” increased by 34% in 2021.
There were also more people killed in traffic accidents in 2021 since 2005. Mr. McLeod explained:
While the trends are disturbing, we should not be discouraged into thinking that traffic deaths are inevitable. Most wealthy countries do not experience anywhere close to the rate of traffic deaths experienced by Americans. Reducing traffic deaths is both possible and necessary and will take systematic investments to create safer places to bike, walk, and drive that prioritizes safety over speed.
You can read the full report on the NHTSA website at https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813435.
If you need help with a case involving a bicycle crash involving serious injuries or death, contact Sloan Downes, Director of our Personal Injury & Products Liability Section, at 800-898-2034 or by using the contact form below.
Source: Insurance Journal
Representing A Client Against An Underinsured Trucking Company
Beasley Allen is proud to represent individuals impacted by heavy trucking accidents. One frequent issue that we encounter is the problem of trucking companies failing to acquire proper insurance.
The Federal Motor Carrier Safety Administration (FMCSA) sets out minimum insurance requirements for trucking companies. This is determined depending on whether the truck in question travels out of the state and whether it is to be actually hauling freight when crossing state lines. For example, Georgia law requires intrastate motor carriers, or carriers staying within state lines, to carry at least $100,000 per person in liability insurance. However, any truck carrying freight across state lines is required to have $750,000 in liability coverage. Too often, trucking companies only acquire in-state insurance and then travel out of the state, thus violating FMCSA insurance standards.
Beasley Allen attorney LaBarron Boone represents an individual severely injured in a crash involving an underinsured trucking company. A Georgia trucking company failed to acquire proper insurance to travel outside state lines yet hauled freight into Alabama. LaBarron’s client was paralyzed when his vehicle was struck by the underinsured heavy truck. It is crucial to spot insurance coverage issues early in litigation so that any party injured by an underinsured company can explore their options for recovery. All avenues of recovery should be examined before filing a new case. Attorneys should conduct discovery to confirm insurance coverage available and investigate assets owned by the underinsured trucking company.
Additionally, heavy trucking cases often involve the failure of at least one defective product. If any product failed or didn’t function properly and this failure caused an injury, a product or parts manufacturer may also be involved in the suit, thus increasing the available recovery in the case. Attorneys should thoroughly investigate whether a product liability component may be at play in any new case.
Beasley Allen lawyers continue fighting to hold trucking companies accountable to protect the public. If you have questions about this or other trucking-related cases, contact LaBarron Boone at 800-898-2034 or by using the contact form below.
You can also contact Sloan Downes, Director of our Personal Injury & Products Liability Section, at 800-898-2034 or by using the contact form below.
TWO IMPORTANT OPINIONS FROM U.S. SUPREME COURT
U.S. Supreme Court Favors Plaintiffs In Mallory Decision
In a 5-4 decision last month, the U.S. Supreme Court overturned a Pennsylvania Supreme Court ruling regarding a state law involving personal jurisdiction. The Court upheld the Pennsylvania law finding that states may require foreign corporations to consent to suit in the state’s courts as a condition of doing business there. The justices determined that the law does not violate the U.S. Constitution’s 14th Amendment Due Process Clause, as argued by Norfolk Southern.
The American Association for Justice (AAJ) submitted an amicus brief supporting Robert Mallory, the plaintiff/appellant. The AAJ’s mission is to strengthen the civil justice system, preserve the right to trial by jury, and protect access to the courts for those who have been wrongfully injured. The Association’s brief explained the organization’s “acute interest” in the case, saying:
If upheld, the decision below would, in many cases, deprive persons harmed by foreign corporations of practical legal recourse while effectively granting immunity to major corporations who would face no unfair hardship in being required to defend in the courts of a state where they have chosen to conduct business.
Beasley Allen’s Navan Ward is the Immediate Past President of the AAJ. He called the decision “a significant win for consumers.”
The case arises from a lawsuit against Norfolk Southern by Mr. Mallory, a former employee. He claimed his cancer was caused by exposure to toxic chemicals while working for Norfolk Southern in Virginia and Ohio. He filed the suit in Pennsylvania. The Pennsylvania Supreme Court agreed with Norfolk Southern, ruling that the state law giving the state personal jurisdiction over any business registered in the state was unconstitutional and violated the Due Process Clause.
Mr. Mallory appealed the state court decision, and the parties conducted oral arguments before the High Court last November.
Mr. Mallory argued that there is a long history of consent by registration laws. His counsel pointed to the 1917 case, Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue Mining & Milling Co. In that case, the U.S. Supreme Court upheld a consent by registration state law subjecting an out-of-state corporation to the state’s jurisdiction regardless of the amount of activity or other connections the company has with the state. The railroad company argued that the Court’s 1945 decision in International Shoe Co. v. Washington diluted Pennsylvania Fire. The Court in International Shoe supported specific jurisdiction based on a company’s activities in a state and general jurisdiction in states where the company had its principal place of business.
Justice Neil Gorsuch wrote for a five-justice majority, including Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, and Ketanji Brown Jackson. Justice Amy Coney Barrett dissented, in an opinion joined by Chief Justice John Roberts and Justices Elena Kagan and Brett Kavanaugh.
The majority determined that this is not a new question. It is one that was settled by the Court in Pennsylvania Fire. They rejected the railroad’s interpretation that International Shoe replaced Pennsylvania Fire. Justice Gorsuch wrote, “[t]he two precedents sit comfortably side by side,” explaining that International Shoe did not rule out all other avenues for personal jurisdiction. Instead, it “stake[d] out an additional road to jurisdiction over out-of-state corporations. Pennsylvania Fire held that an out-of-state corporation that consented to in-state suits to do business in the forum is susceptible to suits there. International Shoe held that an out-of-state corporation that has not consented to in-state suits may also be susceptible to claims in the forum State based on ‘the quality and nature of [its] activity’ in the forum.”
Justice Gorsuch also addressed Norfolk Southern’s train derailment earlier this year and the implications this decision could have on those injured during the horrific tragedy. He explained that although Norfolk Southern said it would be shielded from lawsuits filed by those injured in the derailment if they filed a lawsuit over the border in Pennsylvania, the Court’s majority disagreed.
Justice Jackson concurred, pointing to the Supreme Court’s 1982 opinion in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, which found that personal jurisdiction can be waived. She found that Norfolk Southern waived this right “by choosing to register as a foreign corporation in the circumstances presented in this case.”
Justice Alito concurred with Justice Gorsuch that the Pennsylvania law doesn’t violate the Due Process Clause. He found it could violate other portions of the U.S. Constitution, such as the dormant Commerce Clause. However, Justice Alito admitted that only the question regarding the Due Process Clause was before the Court. Still, he noted it could be an issue Norfolk Southern might pursue on remand.
Justice Amy Coney Barrett wrote the dissenting opinion, describing the Pennsylvania law as “a power grab” and saying that the Court’s decision “flies in the face of our precedent.” The minority opinion was more concerned with the effect on businesses and how this could open the door to other states enacting similar laws.
However, during oral arguments last year, Justice Sotomayor challenged this claim, explaining that other states likely would not want to clog up their courts with matters unrelated to their state. Further, additional “guardrails” were in place to protect against such an overreach of authority in personal jurisdiction.
Mr. Mallory is represented by Ashley Keller, Zina Bash, Warren Postman, Matthew A. Seligman and Noah Heinz of Keller Postman LLC; Daniel C. Levin and Frederick S. Longer of Levin Sedran & Berman; and Charles J. Cooper of Cooper & Kirk PLLC.
The case is Mallory v. Norfolk Southern Railway Co., case number 21-1168.
Sources: SCOTUS Blog, Law360 and The New York Times
Election Law Debate Settled By Supreme Court As 2024 Elections Loom
In a recent ruling, the U.S. Supreme Court affirmed the power of state courts to review voting laws created by state legislatures. The decision enables state judges to eliminate discriminatory or unjust laws enacted by state lawmakers. The Court also clarified that state judges do not have unlimited authority to modify election laws.
The case in question involved redistricting North Carolina’s congressional map, which the state supreme court found to be an attempt at partisan gerrymandering that violated the state’s constitution. Republican state lawmakers appealed the decision, but the court upheld the state’s ability to regulate its own voting laws.
In November 2022, Republicans regained control of North Carolina’s top court and reconsidered the state’s congressional map ruling. This led to their appeal to the High Court in Moore v. Harper. The newly constituted North Carolina Supreme Court overturned its previous decision in Harper I, stating that partisan gerrymandering is a nonjusticiable political question. This decision created uncertainty regarding whether the U.S. Supreme Court would still hear the case, and briefings were ordered to determine if the dispute could be settled. According to some legal experts, the issue may now be moot.
It’s worth noting that only one group among the respondents in the Moore v. Harper case believed that the Supreme Court should still decide. This group, known as Common Cause and represented by veteran Supreme Court lawyer Neal Katyal, considers itself “pro-democracy.”
On the other hand, the Biden administration, the North Carolina Department of Justice, and other voters who contested the alleged gerrymandering urged the Supreme Court to dismiss the case as moot and to avoid ruling on the independent state legislature theory altogether. This put Common Cause in agreement with their opponents in the case, the North Carolina Republican legislators who were advancing the new election theory.
Despite this, Common Cause still stressed the importance of the Supreme Court resolving questions around the independent state legislature theory before the 2024 election. This theory gained attention during the 2020 presidential election litigation. In fact, Katyal wrote that “the dispute over that theory must be resolved in time to prepare maps, ballots, and election rules well before the 2024 elections. It is therefore exceptionally important that the Court address the Question Presented as quickly as possible.” Ultimately, the Supreme Court ruled in favor of Common Cause’s stance.
Mr. Katyal expressed concern that the North Carolina Supreme Court could set a dangerous precedent by taking away the U.S. Supreme Court’s authority over a pending case. He was surprised the other plaintiffs agreed with this and felt confident that the Supreme Court would reject the lawmakers’ election theory. Most of the Court seemed to agree with this based on their questioning during oral arguments. Ultimately, Mr. Katyal was pleased with the court’s decision and saw it as a victory. He said:
This is as definitive a Supreme Court ruling as you can get. I wasn’t surprised at all. I’ve always felt that this decision should have been 6-3 or even more.
This decision was a clear victory for Common Cause and the American people.
Source: National Law Journal
PRODUCT LIABILITY LITIGATION
Parents Sue Carseat Maker For Toddler’s Death
A Texas couple claims that a manufacturer’s misinformation and lack of warnings about its children’s booster seats resulted in the death of their toddler.
The parents sued Baby Trend Inc. in Texas federal court after their two-year-old child died in a July 2021 crash. The child was secured in a “Hybrid 3-in-1 Combination Booster Seat” by Baby Trend Inc. when the crash occurred on 1-69/US 59 Northeast near Houston. The family was traveling in their Hyundai Genesis when a vehicle driving in the wrong direction struck them.
Their product liability lawsuit alleges that the booster seats are unsafe for children under 40 pounds, contrary to the safety information that came with the product. The parents claim they followed the directions when they placed their 28-month-old child in the seat. They say their child was “well within the age, height, and weight” limits set by Baby Trends to ride facing forward.
The parents also say that the company did not provide any warnings that their child would be safer in a child safety seat, given that he weighed less than 40 pounds. Because of this, their child died from the exact injuries that a rear-facing child car seat is designed to prevent, they claim. They also allege that the company spread disinformation that the booster seats are safe for children as light as 22 pounds despite knowing for decades that they are unsuitable for children under 40.
The parents claim the manufacturer is negligent for failing to warn consumers that young children are at a higher risk of spinal cord injury when facing forward in the booster seat. They seek damages for defective product design and marketing and wrongful death.
The parents are represented by Jeffrey T. Embry and Christopher P. Peirce of Hossley & Embry LLP.
The case is Mahab Patoli et al. v. Baby Trend Inc., case number 4:23-cv-02044, in the U.S. District Court for the Southern District of Texas.
Client Injured On The Job When Defective Dump Truck Empties Hot Asphalt On Them
Beasley Allen lawyers see many workplace or on-the-job injury and death cases and have successfully handled many of these cases. Employment can be an opportunity for a person to provide for themselves and serve a greater purpose. A safe work environment is essential to achieving each of these purposes. While workplace safety should always be a top priority, quite often, it’s far from being that top priority for employers. That’s why Beasley Allen lawyers see so many cases.
Every worker deserves a safe workplace, but equipment manufacturers sometimes design and sell defective products that cause injury or death. Workplace injuries can result in permanent bodily injuries, disabilities, pain, loss of income, enjoyment of life, and numerous other damages.
One specific threat to workplace safety is because of dangerous and defective products being used by employees. These products are often used because as the result of greed and a disregard for public safety by the manufacturers of products.
Beasley Allen lawyer Mike Andrews recently filed a case where a defectively designed dump truck resulted in an on-the-job injury. In Mike’s case, the dump truck tailgate inadvertently opened and poured hot asphalt onto a person working behind the truck, causing severe and permanent injuries. The dump truck was unreasonably and dangerously designed and manufactured with inadequate risk warnings.
Beasley Allen lawyers continue to fight to hold manufacturers of products accountable to ensure on-the-job safety in the workplace. If you or a loved one were seriously injured on the job or have any questions about on-the-job injuries, contact Mike Andrews at 800-898-2034 or by using the contact form below. If Mike is unavailable, ask for Sloan Downes; she will have another lawyer contact you. Sloan can be reached at 800-898-2034 or by using the contact form below.
PREMISES LIABILITY LITIGATION
Negligent Security Laws Hold Bad Apartment Management Accountable And Make Our Communities Safer
On any given nightly news segment, it is almost a given that we will hear at least one story about a young person being senselessly shot or killed due to gun violence in an apartment complex. It happens so often that the public has become de-sensitized to the stories. Spring headlines were full of stories involving shootings at apartment complexes in Atlanta. These included a one-month-old baby girl shot; a man shot to death in his car; a shooting that left one person dead and another injured; an April shooting that left one man dead and three others injured; and numerous shooting events in May. And we are investigating multiple shooting cases in Georgia.
Many of these shootings take place at government-subsidized apartment complexes. In these complexes, the government pays a private apartment complex owner money (your tax dollars) to help subsidize the rent for disadvantaged people – due to a disability, age, extreme poverty or some other qualifying reason. Many tenants are single mothers, veterans, or the elderly with no other place to turn to, and these funds are specifically designed to give them a safe, habitable place to live. Ideally, as the government covers most (if not all) of the rent for a tenant to the complex, in exchange, the complex should provide a safe, habitable dwelling place for its tenants. Not only does this help tenants that desperately need a home, but the complexes would use those tax dollars to make surrounding communities safer.
Unfortunately, owners and management do not uphold their share of the deal in many apartment complexes nationwide. They may initially renovate the property they purchase. Still, this renovation is designed with one goal in mind: to charge the government higher rent so they can collect greater subsidies. Because the complex does not have to worry about the tenants paying (the government pays), many bad owners and management let their complexes fall into extreme disrepair after the renovation while still raising rents. These bad actors continue to make recurring revenue year after year on these government subsidies, and then at the end, when they sell the property after the property value has appreciated. All the while, maintenance and safety issues (including crime) are ignored.
Beasley Allen lawyers have seen complexes that have no running water, air and heating systems that do not work, exposed electrical wiring, severe black mold, collapsing ceilings, water leaks, hazardous electrical systems, no fire alarms, carbon monoxide exposure, and severe rodent and insect infestations. It should be no surprise these complexes suffer from rampant violent crime and dangerous drug and gang activity that terrorizes tenants and the surrounding community. These crimes threaten the lives of families and law enforcement. The crimes hurt economic development. Greater law enforcement is needed to counteract the violent environment. And it doesn’t just happen overnight. Bad management simply creates the environment through inaction, leading to the very news stories we all see on the television news each night.
Contrary to what some may believe, most people living in these communities are good folks who want a safe, habitable place to live. Beasley Allen lawyers are proud to handle cases on behalf of families victimized in these communities, and we have obtained significant multimillion-dollar resolutions for the families of people killed by violent crime in these complexes. If you have any questions about negligent security cases, contact our lead negligent security lawyer Parker Miller by using the contact form below or at 800-898-2034. Parker is in our Atlanta office and will be glad to help you.
A Look At Both Direct And Vicarious Liability In Premises Cases
Beasley Allen lawyers have handled many premises liability cases over the years. These can include cases occurring on the premises of an owner/occupier where the victim is injured due to the direct actions or omissions of an agent or employee of the owner/occupier. In such cases, a plaintiff may assert that the employer is negligent under direct and/or vicarious liability theories.
For illustrative purposes, we will use a case Beasley Allen lawyers handled involving a wheelchair services employee pushing a wheelchair into a passing pedestrian, causing him to fall and break his hip.
In a case such as this, the wheelchair services company would be vicariously liable under a theory of respondeat superior, as the employee committed a negligent act (carelessly pushing a wheelchair into a passerby) while acting within the line and scope of his employment with the wheelchair services company – that is, as a wheelchair attendant.
However, the employer in such a case could also be liable for direct acts of negligence. Specifically, it may be liable for its negligence in hiring, retaining, or failing to supervise the attendant reasonably.
Proficient counsel will evaluate all potential causes of actions and theories of liability at their disposal and plead, brief and argue accordingly (while considering how such decisions may or may not affect case strategy and/or the possibility of punitive damages).
Parker Miller and Houston Kessler, lawyers in our Atlanta office, handle these types of cases and numerous other premises liability and negligent security cases across Georgia and other states. If you have any questions about these cases, contact them at 800-898-2034 or by using the contact form below.
Two Alabama Dollar General Stores Cited For Worker Safety Hazards
Federal safety regulators said Dollar General Corporation needs to get its act together after inspections in two Alabama store locations turned up several safety violations that left workers vulnerable to serious injury.
Occupational Safety and Health Administration (OSHA) inspections of Dollar General stores in Addison and Haleyville, Alabama, last fall and an Astor, Florida, location in December resulted in June citations of more than $1 million.
The agency found merchandise, rolling containers, and spare shelving blocking the store exits. These violations create a fire risk and threaten to trap employees inside the store in the event of a fire. The inspectors also found merchandise blocking aisles and stacked unsafely, exposing workers and others to tripping hazards and the risk of being stuck by falling objects.
OSHA said the violations at the Alabama and Florida stores were repeat violations. The agency said it continues to find the same violations at Dollar General stores nationwide. Based in the Nashville, Tennessee, area, Dollar General operates 19,000 store locations and 28 distribution centers in all but three states. It employs about 173,000 workers.
OSHA has completed 240 inspections of Dollar General stores throughout the U.S. since 2017, resulting in more than $21 million in federal fines for safety violations. In a 14-month period ending April 20, 2023, 28 OSHA investigations of Dollar General stores in Alabama, Florida, and Georgia alone resulted in almost $9 million in proposed penalties.
Federal regulators aren’t the only ones calling for safety reforms within the company. On May 31, Dollar General investors voted for an independent audit of the company’s workplace safety policies against the board’s wishes amid a slew of employee complaints.
If you have questions or need help with a case, contact Sloan Downes, our Personal Injury and Products Liability Section Director, at 800-898-2034 or by using the contact form below.
Sources: AL.com, QZ.com and Occupational Safety and Health Administration
PacifiCorp To Pay $90 Million In Ongoing Wildfire Class Action
Years of West Coast wildfires reveal some electric companies’ role in causing these devastating blazes. Last month, an Oregon jury reaffirmed this connection when it found PacifiCorp grossly negligent for generating a series of 2020 wildfires throughout Oregon that devasted thousands of homes.
On June 12, a Circuit Court of Multnomah County jury awarded a group of plaintiffs at least $71.9 million for property damages from the wildfires. The jury found PacifiCorp grossly negligent for its alleged role in four late-summer fires: the 242 Fire, the Echo Mountain Fire, the Santiam Canyon Fire, and the Obenchain Fire. The fires started when high winds crossed parts of Oregon on September 7, 2020.
The jury awarded most of the class action lawsuit’s 17 named plaintiffs the amount of economic damages they sought. They also ordered PacifiCorp to pay $4.5 million in non-economic damages – more than $3 million over the amount plaintiffs requested. Two days after the verdict, the jury awarded the plaintiffs punitive damages at a rate of 25% of the total economic and non-economic damages, bringing the total award to about $90 million. PacifiCorp’s willful disregard and alleged destruction of evidence reportedly encouraged jurors to issue the higher awards.
The plaintiffs accused PacifiCorp of negligently leaving overgrowth and dying trees near its power lines. They also claimed the utility failed to cut off power or take other actions that might have prevented the fires, even when it knew that fires were developing in its service areas.
Damages for the broader class were not awarded at the time. But if those damages are calculated at the same rate, PacifiCorp could owe as much as $11 billion.
The property owners are represented by Edelson PC, Stoll Berne Lokting & Shlachter PC and Keller Rohrback LLP.
The case is James et al. v. PacifiCorp, case number 20CV33885, in the Circuit Court of Multnomah County, State of Oregon.
Sources: Law360 and Oregon Public Broadcasting
Class Action Litigation
Update On GM 5.3L Oil Consumption Class Action Jury Verdict
We previously reported on one of our firm’s automotive class actions against General Motors LLC. The case involved excessive oil consumption in 2011 – 2014 5.3L LC9 engines.
Last September, Beasley Allen lawyers Clay Barnett, Mitch Williams, Rebecca Gilliland, and Dylan Martin, along with lawyers from the Dicello Levitt firm, tried this unprecedented class action in the U.S. District Court for the Northern District of California.
The trial lasted for three weeks, and after approximately one day of deliberations, the jury returned a verdict for the plaintiffs, awarding each class member $2,700. With the class encompassing about 38,000 members, the total judgment equals approximately $102.6 million.
Following the verdict, GM moved to decertify the class action, filing a Motion for Judgment Notwithstanding the Verdict and for a New Trial. GM mainly argued that there was not sufficient evidence of a class-wide defect. The court rejected GM’s arguments, denying each of its motions.
In denying GM’s motions, the court noted that plaintiffs presented evidence from three experts, five GM engineers, three class representatives, and over 40 exhibits. At the same time, “GM did not call any witnesses during its case-in-chief.” Based on this substantial evidence, the court held:
[T]here was substantial evidence to support the jury’s finding of a class-wide defect and that [t]he verdict was not against the clear weight of the evidence.
A status conference was set for the end of last month to discuss the next steps, including whether GM is entitled to test its statute of limitations affirmative defense that absent class members knew or should have known about the defect, preventing them from relying on active concealment tolling, and the timing of our firm’s motions for final judgment and pre-judgment interest. We won’t comment specifically on these motions while they are pending. Still, our lawyers are confident that the plaintiffs will prevail.
We will keep our readers updated on this critical and precedent-setting class action litigation. Stay tuned!
Judge Approves Deutsche Bank’s $75 Million Settlement With Epstein Victims
Victims of Jeffrey Epstein’s extensive and long-running sex trafficking operations moved closer to getting some justice after Judge Jed Rakoff of the U.S. District Court for the Southern District of New York gave his preliminary approval to a $75 million settlement with Deutsche Bank.
The deal settles a lawsuit by a woman representing a proposed class of Epstein sex abuse victims. The woman, identified as Jane Doe 1, alleges Deutsche Bank knowingly benefitted from Epstein’s sex trafficking schemes. She claims the German multinational bank allowed Epstein to withdraw large sums of cash to pay women who took part in the sex trafficking operations or recruited others into them.
The plaintiff further claims that Deutsche Bank looked the other way in violation of anti-money laundering and reporting laws while failing to take reasonable care to monitor Epstein’s non-routine banking activities. According to the lawsuit, Deutsche Bank was completely aware that Epstein was running a sex trafficking ring because of the way he managed his accounts. The bank also knew of Epstein’s extensive history of child sex abuse and prostitution and that he had pled guilty to felony sex crimes in the past and was a registered lifetime sex offender, according to the suit.
The settlement, said to be the largest sex trafficking deal ever reached with a bank in the U.S., helps close one chapter for women and girls who were sexually trafficked, prostituted, or abused in the Epstein ring between August 19, 2013, and August 10, 2019. The lead plaintiff in the case has also filed a lawsuit against JPMorgan Chase with similar allegations. That suit has not been settled.
Jane Doe is represented by David Boies, Andrew Villacastin, Daniel Crispino, Sabina Mariella and Sigrid S. McCawley of Boies Schiller & Flexner LLP, Brittany Henderson and Bradley J. Edwards of Edwards Pottinger LLC and Paul G. Cassell of the University of Utah’s S.J. Quinney College of Law.
The case is Doe 1 v. Deutsche Bank Aktiengesellschaft et al., case number 1:22-cv-10018, in the U.S. District Court for the Southern District of New York.
Sources: Law360, NPR and Associated Press
Verizon Reaches Settlement To End Massive Retirement Plan Class Action
Verizon has settled a class action lawsuit brought by 200,000 401(k) plan participants over retirement savings losses. Details of the proposed settlement have not been released. Verizon Communications Inc. and class representative Melina N. Jacobs will submit a motion requesting preliminary settlement approval by the New York federal court by July 7.
In 2016, Jacobs filed suit against the communications provider in the U.S. District Court for the Southern District of New York, alleging that Verizon violated the Employee Retirement Income Security Act (ERISA). Specifically, Jacobs contended that Verizon did not maintain its target date funds, including the Global Opportunity Fund. She also argued that the company did not disclose investment returns properly.
Verizon maintains four 401(k) plans, according to the complaint filed by Jacobs. In 2014, the funds contained over $30 billion in assets invested through the Verizon Master Savings Trust.
While Jacobs initially brought additional claims against Verizon, the court permitted only the Global Opportunity Fund claims to proceed in 2017. When analyzed over ten years, the trust’s Global Opportunity Fund had a much lower rate of return than others, averaging 1.74% annually compared to its benchmark fund, which brought in 10.37%. Further, the fund’s expense rate was very high.
Jacobs further alleged that the 401(k) managers changed the benchmark fund twice, attempting to hide the Global Opportunity Fund’s poor performance.
U.S. District Judge Paul G. Gardephe granted Jacobs class certification in September 2020. In March 2021, Verizon filed a motion for summary judgment.
In denying the motion, Judge Gardephe indicated that Verizon provided ample evidence of its policies and procedures for retirement plan review but didn’t show why it kept the Global Opportunity Fund despite its poor performance. Judge Gardephe also said Verizon presented no evidence that the company discussed the underperforming fund. In addition, Verizon’s arguments were simply factual disputes, not allowing for case dismissal. Yet a further reason for Judge Gardephe’s denial was that Verizon could not discredit expert witness testimony indicating the fund performed poorly.
Benjamin Issac Sachs-Michaels and Daniella Quitt of Glancy Prongay & Murray LLP; John F. Edgar of Edgar Law Firm LLC; Garrett W. Wotkyns of Scott + Scott Attorneys at Law LLP; James A. Bloom, Jason H. Kim, Mark Thomas Johnson, Ryan Hecht of Schneider Wallace Cottrell Konecky LLP; and Kyle G. Bates of Hausfeld LLP represent Jacobs.
The case is Jacobs v. Verizons Communications Inc. et al., case number 1:16-cv-01082, in the U.S. District Court for the Southern District of New York.
Class Action Lawyers At Beasley Allen
Beasley Allen lawyers remain heavily involved in class action litigation around the country. Dee Miles, who heads the Consumer Fraud & Commercial Litigation Section, leads the effort. Other lawyers in the section who handle class action cases are:
Demet Basar, Lance Gould, Clay Barnett, James Eubank, Mitch Williams, Rebecca Gilliland, Rachel Minder, Paul Evans and Dylan Martin. They can be reached at 800-898-2034 or by email at:
If you need help on a case that would be a class action, you can contact one of these lawyers. You can also contact Michelle Fulmer, Section Director, and she will have one of the lawyers contact you. Michelle can be reached at 800-898-2034 or by email at [email protected].
Ford Takes Blue Cross Blue Shield To Court For Anticompetitive Activities
Ford Motor Company filed an antitrust lawsuit against Blue Cross Blue Shield of Michigan Mutual Insurance Co. in a Michigan federal court last month, accusing the insurer of stifling competition by conspiring to fix prices.
Ford filed the lawsuit after pulling out of a $2.7 billion settlement in a related multidistrict litigation (MDL). A federal judge in Alabama approved that deal last year, but it is being challenged in the Eleventh Circuit. It would resolve a sprawling decade-long antitrust MDL against Blue Cross Blue Shield and dozens of Blue Cross Blue Shield Association (BCBS) affiliates if affirmed.
Ford accuses the Michigan insurer and BCBS of engaging in years of price-fixing schemes for commercial health insurance, inflating insurance premiums, and fending off competition. The carmaker claims that these anticompetitive activities have caused it to spend hundreds of millions more than it should have on employee insurance.
Dearborn, Michigan-based Ford employs more than 170,000 workers in the U.S. and worldwide. The automaker claims in its lawsuit that it paid BCBS MI more than half a billion dollars in insurance premiums for its Michigan employees alone from 2009 to 2013 and more than $150 million in fees since 2013.
Ford says the defendants’ anticompetitive activities resulted in “astronomical profits” and “extraordinary” executive salaries. The “all at the substantial expense of consumers,” according to the complaint.
Blue Cross was formed in the 1930s and 40s as many independent and robustly competitive nonprofits serving regions throughout the US. That all changed when, by the 1980s, BCBS was formed and became the sole owner of the Blue Cross trademark.
“Since the 1980s, the BCBS licensees have increasingly operated as for-profit entities by formally converting to for-profit status or by generating substantial surpluses that have been used to fund multimillion-dollar salaries and bonuses for their administrators,” Ford alleges in its complaint.
The lawsuit asserts Sherman Act and Clayton Act violations. It seeks treble damages, attorney fees and costs, and an order to find the defendants jointly and severally liable for all damages.
The case is Ford Motor Co. v. Blue Cross Blue Shield of Michigan Mutual Insurance Co. et al., case number 2:23-cv-11286, in the U.S. District Court for the Eastern District of Michigan. The MDL is In re Blue Cross Blue Shield Antitrust Litigation, case number 2406, U.S. District Court for the Northern District of Alabama. The appeals challenging the settlement are In re: Blue Cross Blue Shield Antitrust Litigation, case numbers 22-13051, 22-13052, 22-12118 and 22-13120, all in the U.S. Court of Appeals for the Eleventh Circuit.
THE WHISTLEBLOWER LITIGATION
Detroit Medical Center Settles FCA Claims For Over $29 Million
VHS of Michigan Inc., doing business as The Detroit Medical Center Inc. (DMC) and its current and previous owners have agreed to pay a $29,744,065 settlement to resolve claims the companies operated a kickback scheme that violated the False Claims Act (FCA).
The government alleged that DMC’s Sinai Grace Hospital and Harper University Hospital established an arrangement to encourage physicians to refer Medicare patients to DMC facilities. Specifically, the government alleged that from January 1, 2014, through December 31, 2017, Sinai Grace Hospital and Harper University Hospital provided the services of DMC-employed mid-level practitioners to 13 physicians at no cost or below fair market value in violation of the Anti-Kickback Statute (AKS).
The AKS prohibits offering, paying, soliciting, or receiving remuneration to induce referrals of items or services covered by Medicare and other federally funded programs. The statute is intended to ensure that improper financial incentives do not compromise medical providers’ judgments and are instead based on the best interests of their patients.
The settlement includes resolving claims brought under the FCA’s qui tam or whistleblower provisions by Dr. Jay Meythaler, a former Wayne State University Medical School employee. The qui tam provisions of the FCA allow private parties to bring suit on behalf of the government for false claims. Under the FCA, whistleblowers receive 15% to 25% of the proceeds in the cases the government joins. Dr. Meythaler will receive over $5 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 an attorney in our Consumer Fraud section of the firm for a free and confidential evaluation of your claim. There is a contact form on our website, or you may email one of our lawyers on our whistleblower litigation team: Lance Gould, Larry Golston, Leon Hampton, Paul Evans, Lauren Miles, or Tyner Helms.
Source: U.S. Department of Justice
U.S. Supreme Court Clarifies FCA Scienter Standard
On June 1, 2023, the U.S. Supreme Court unanimously ruled to change the “knowledge” standard in False Claims Act cases. Most significantly, the Court rejected the “objective reasonableness” standard adopted by several circuit courts in recent years. Under the rejected standard, defendants could assert their actions were consistent with an objectively reasonable interpretation of the law before considering their knowledge or subjective belief in submitting alleged false claims.
Justice Clarence Thomas, writing for the majority, held that the FCA’s scienter element concerns a defendant’s knowledge and subjective beliefs, not what an objectively reasonable person may have known or believed. To satisfy the scienter element, the Court concluded, “it is enough if [defendants] believed that their claims were not accurate” when submitted. The Court’s decision was one of its most significant concerning the FCA.
The case before the Supreme Court was U.S. ex rel. Schutte v. SuperValu Inc., involving two consolidated cases in which national retail pharmacies were accused of violating the FCA by “knowingly” submitting “false” drug reimbursement claims to the Medicare and Medicaid programs. Both programs regularly require pharmacies to submit claims for reimbursement reflecting their “usual and customary” drug prices.
The whistleblower plaintiffs contended that by offering discount programs to customers but then seeking reimbursement from the government at their higher retail prices without discounting (claiming the retail prices were their “usual and customary” drug prices), the pharmacies had been overcharging the Medicare and Medicaid programs for years.
The Supreme Court acknowledged that the phrase “usual and customary” is “on its face, less than perfectly clear” and “appears somewhat open to interpretation.” At the same time, plaintiffs argued that the pharmacies were informed that their discounted prices were their “usual and customary” prices (in one pharmacy’s case by state Medicaid agencies), believed their discounted prices were their “usual and customary” prices, and “tried to hide their discounted prices from regulators and contractors.”
The Court’s opinion noted plaintiffs’ allegation that between 2008 and 2012, 94% of one pharmacy’s cash sales for a cholesterol drug were priced at $10, yet it reported prices to the government as high as $108 for the drug as its “usual and customary” price during this period.
The Court further noted allegations that SuperValu executives regarded their discount program as a “stealthy approach” and that employees were cautioned not to put anything in writing regarding the discount program.
The Seventh Circuit had affirmed the district court’s summary judgment ruling in favor of the pharmacies, joining four other circuits that had adopted the Supreme Court’s interpretation of the scienter requirement under the Fair Credit Reporting Act (FCRA) in Safeco Insurance Co. of America v. Burr, 551 U.S. 47 (2007), as the scienter standard for FCA claims.
The Seventh Circuit affirmed the trial court’s dismissal, holding that the pharmacies could not have acted “knowingly” in submitting false claims if their actions were consistent with an objectively reasonable interpretation of the phrase “usual and customary,” regardless of whether that interpretation was consistent with their subjective beliefs at the time of submitting claims.
The Supreme Court rejected the objective reasonableness argument. Under the Seventh Circuit’s standard, the Supreme Court emphasized, “[i]t … did not matter whether respondents thought that their discounted prices were actually their ‘usual and customary’ prices. What mattered, instead, was that someone else, standing in [the pharmacies’] shoes, may have reasonably thought that the retail prices were what counted.”
The High Court also emphasized that the FCA does not concern potential “post hoc interpretations” of the law that might have rendered the pharmacies’ claims accurate. Instead, the FCA focuses on “what the defendant knew when presenting the claim.” Thus, if defendants believed their claims were inaccurate under the governing law and submitted them anyway, they could be liable under the FCA. A defendant’s subjective belief in submitting alleged false claims is not irrelevant just because others may have had an incorrect interpretation of the governing law.
If the plaintiffs can show the defendants acted in the belief that they were submitting false claims or in deliberate ignorance or reckless disregard of the truth or falsity of the claims, that is sufficient to satisfy scienter requirements in bringing an FCA claim. The Court said:
If petitioners can make that showing, then it does not matter whether some other, objectively reasonable interpretation of ‘usual and customary’ would point to respondents’ higher prices. For scienter, it is enough if respondents believed that their claims were not accurate.
This significant ruling by the Supreme Court will result in defendants facing an uphill battle in seeking dismissal of FCA claims based solely on the ambiguity of the underlying law under which they submitted claims. Instead, lower courts will be required to consider the subjective belief of defendants in submitting challenged claims. As the high court stated, “[F]acial ambiguity alone is not sufficient to preclude a finding that [the pharmacies] knew their claims were false.”
Our Whistleblower Litigation Team is greatly pleased with this important ruling. They continue to monitor the state of the laws governing FCA claims. Should you have any questions regarding potential FCA claims, please contact any of our qui tam lawyers, Lance Gould, Larry Golston, Leon Hampton, Lauren Miles, Tyner Helms or Jessi Haynes. They can be reached at 800-898-2034 or by using the contact form below.
Supreme Court Supports Broad Government Authority In FCA Cases
The federal government can dismiss qui tam whistleblower cases brought under the False Claims Act (FCA) if it reasonably explains the decision, the Supreme Court ruled. Further, the government can dismiss the case at any stage of litigation as long as it has intervened in the case. This applies even if the government did not intervene in the case when it began.
The Supreme Court rejected relator Jesse Polansky’s argument, 8-1, that the FCA blocks the government from dismissing a whistleblower case if it fails to intervene initially. Polansky accused Optum, formerly Executive Health Resources Inc., of charging the government for expensive inpatient care when patients should have received less costly outpatient care.
Justice Kagan wrote:
The government may seek dismissal of an FCA action over a relator’s objection so long as it intervened sometime in the litigation, whether at the outset or afterward.
In qui tam cases, individuals sue on the government’s behalf. The government then has a 60-day seal period to intervene after the lawsuit is filed. The seal period is often extended.
The government can also dismiss the case, even if the whistleblower objects. This authority prevents cases lacking merit from proceeding and keeps an undesired precedent from being set.
The FCA fails to specify when the government can seek dismissal. Polansky contended that an FCA provision authorizing a relator to proceed with a case in which the government does not intervene in the beginning stages stops the government from later dismissing the suit.
Polansky sued Executive Health Resources in 2012. Seven years later, the government sought to dismiss the case after discovery had occurred over several years and privilege issues arose, determining that “the varied burdens of the suit outweighed its potential value,” said Justice Kagan.
A district court approved the dismissal, finding that the government carefully considered the pros and cons of proceeding with the case. The Third Circuit upheld the district court decision, indicating that the government can dismiss the case whenever it chooses after it intervenes.
The Supreme Court agreed with the lower courts’ decision. The government further contended that intervention is unnecessary to dismiss a case, but the Supreme Court indicated that “non-parties typically cannot do much of anything.” Also, the FCA sections governing the dismissal authority “presuppose that the government has in fact intervened.”
Justice Kagan added that a “straightforward reading” of the FCA contradicts Polansky’s argument concerning the timing of government intervention and case dismissal. The government does not relinquish its right to intervene, even if it first refuses. It can step in “at a later date upon a showing of good cause,” becoming a party to the litigation and taking primary responsibility for the case.
Justice Kagan wrote:
That seal-agnostic view of intervention’s effects also fits the FCA’s government-centered purposes. In Polansky’s proposed world, the government has primary control of the action if it intervenes in the seal period, but the relator has primary control if the intervention occurs later on. But in both cases, the government’s interest in the suit is the same – and is the predominant one.
Justice Kagan also addressed the standard that should be used when the government seeks suit dismissal, saying that the standard for which the government argued and the one proposed by Polansky were incorrect. The Third Circuit’s “Goldilocks position” should be applied instead, requiring the court’s review of the government’s “argument for why the burdens of continued litigation outweigh its benefits.” If the government’s argument is reasonable, the suit should be dismissed. “And that is so even if the relator presents a credible assessment to the contrary,” Justice Kagan continued.
Dissenting Justice Clarence Thomas argued that the FCA does not authorize the government “to unilaterally dismiss a pending qui tam action after it has ‘declined[d] to take over the action’ from the relator at its outset.”
He also stated that constitutional questions remain about whether whistleblower suits should move forward without government intervention. “The FCA’s qui tam provisions have long inhabited something of a constitutional twilight zone. There are substantial arguments that the qui tam device is inconsistent with Article II,” wrote Justice Thomas.
Justice Brett Kavanaugh and Justice Amy Coney Barrett also raised constitutional concerns in their concurrence with the majority opinion, stating, “The court should consider the competing arguments on the Article II issue in an appropriate case.”
The question of how Congress can authorize partial assignments of a claim by the government also remains. The court has yet to discuss it.
Daniel L. Geyser, Andrew W. Guthrie and Angela M. Oliver of Haynes and Boone LLP, Stephen Shackleford Jr., Mark Musico and Nicholas C. Carullo of Susman Godfrey LLP and William T. Jacks of Fish & Richardson PC represent Polansky.
The case is U.S. ex rel. Polansky v. Executive Health Resources Inc. et al., case number 21-1052, in the U.S. Supreme Court.
The Beasley Allen Whistleblower Litigation Team
Beasley Allen lawyers remain heavily involved in handling whistleblower cases. Fraudulent conduct in corporate America continues to cause huge problems in many industries in this country. Due to the case volume, we significantly increased our firm’s healthcare whistleblower practice months ago. Currently, our lawyers are handling cases throughout the country involving fraud against governments at both the federal and state levels.
If you are aware of fraud being committed against the federal or state governments, you could be rewarded for reporting the fraud. If you have questions about whether you qualify as a whistleblower, contact a lawyer on our Whistleblower Litigation Team for a free and confidential evaluation of your claim. There is a contact form on our website, or you may call or email one of the lawyers on our team who are listed below.
The experienced lawyers on the Whistleblower Litigation Team are dedicated to handling whistleblower cases. The Beasley Allen lawyers listed below are on the team: Larry Golston, Lance Gould, James Eubank, Paul Evans, Leon Hampton, Tyner Helms, Lauren Mile and Jessi Haynes. Dee Mile heads our Consumer Fraud & Commercial Litigation Section and works with the litigation group. The lawyers can also be reached by phone at 800-898-2034.
Beasley Allen Files A Class Action Alleging Vertex Energy Misled Investors On Alabama Oil Refinery
Beasley Allen lawyers Dee Miles and James Eubank have partnered with Pomerantz LLP to file a class action lawsuit against Texas-based Vertex Energy, Inc. and certain of its officers for violations of the Securities Exchange Act. The class action complaint, filed in federal court for the Southern District of Alabama, is on behalf of a class of all persons and entities other than the defendants that purchased or otherwise acquired Vertex securities between April 1, 2022, and Aug. 8, 2022, inclusive (the class period), seeking to recover damages caused by defendants’ violations of the federal securities laws.
Vertex was founded in Houston, Texas, in 2001. Since its founding, it has primarily focused on collecting and re-refining used motor oil. Vertex went public in 2009, and its stock was first listed on the NASDAQ in 2013. Ben Cowart, an Alabama native, founded Vertex and serves as CEO and Chairman of the Board of Directors. Cowart and Chief Financial Officer Chris Carlson are also defendants in the complaint.
The complaint alleges that Vertex and certain executives misled investors by failing to disclose critical transactions related to Vertex’s acquisition of an oil refinery in Mobile, Alabama.
When Vertex announced in May 2021 that it had reached an agreement to purchase the Mobile refinery from Shell Oil, the news was touted by Vertex as “transformational” in its press release. The Mobile refinery, for which Vertex paid $75 million, was to “become Vertex’s flagship refining asset” and position the company to generate impressive revenue from refining renewable fuels.
Vertex claimed that, after a planned $85 million conversion of part of the refinery, it expected to refine 10,000 barrels per day of renewable diesel fuel and renewable byproducts by the end of 2022, with production climbing to 14,000 barrels per day by the end of 2023, with projected revenue of $4 billion for 2023.
Beyond the purchase price and conversion expense, Vertex also issued notes to finance the purchase of $150 million in crude oil feedstock and refined fuel inventory at the refinery. These notes significantly increased Vertex’s debt load. Still, they were expected to be paid for by profits from the Mobile refinery operations.
Oil markets are volatile, with prices frequently changing. Due to the Russian invasion of Ukraine in early 2022, the “crack spread” on oil products, the difference between what a refiner pays for raw crude oil and the price it sells refined products, began to rise. The rising spreads caused analysts and investors to increase profit forecasts for Vertex.
However, unbeknownst to investors, Vertex entered into hedging agreements and other transactions to limit price volatility just before closing on the Mobile refinery. These hedging agreements meant that Vertex could not take advantage of the high crack spreads and, thus, could not meet the increased profit forecasts. These transactions resulted in $125 million in losses for Vertex during the class period.
The class period begins on April 1, 2022, the date that Vertex completed the purchase of the Mobile refinery, and ends on Aug. 8, 2022, the last date of trading before Vertex released its second quarter 2022 earnings, disclosing massive losses of $63.8 million in the second quarter, alone. In response to the news, on Aug. 9, 2022, Vertex common stock tumbled 44%, closing the day down $6.18 per share. By Aug. 11, 2022, shares of Vertex common stock had lost 50% of their value.
Beasley Allen is honored to partner with Pomerantz to represent investors in this action. Our firm’s Consumer Fraud & Commercial Litigation Section lawyers have extensive experience in complex class action litigation. If you need more information, contact James Eubank at 800-898-2034 or by using the contact form below. James worked for years as a securities regulator with the Alabama Securities Commission and leads the team handling securities fraud investigations.
The case is Levson v. Vertex Energy, Inc., et al., Case No. 1:23-cv-00197, in the U.S. District Court for the Southern District of Alabama.
U.S. Supreme Court Limits How Direct Listing Lawsuits Can Be Pursued
The U.S. Supreme Court has limited the ability of shareholders to sue companies that go public by way of a “direct listing.” However, the justices did not completely shut down a lawsuit brought against popular messaging service Slack Technologies Inc. that involved this issue.
A direct listing, also known as a Direct Public Offering (DPO) or direct listing Process (DLP), is a relatively new way for private companies to go public on the national stock exchange with their stock offerings that don’t require the use of an underwriter or other intermediary. The alternative is a traditional IPO (Initial Public Offering) that involves an underwriter and a roadshow when offered to the public.
In a unanimous decision on June 1, written by Justice Neil Gorsuch, the High Court sent the lawsuit back to the Ninth Circuit to determine if Slack shares purchased by investor Fiyyaz Pirani could be directly traced to the registration statement that the company released ahead of its 2019 direct listing. Obviously, the Court is ensuring that the stock purchaser relied on the statements made in the direct offering.
The Supreme Court ruled that if Plaintiff Pirani cannot do this, the lawsuit must be dismissed, at least under Section 11 of the Securities Act of 1933. The justices, however, declined to issue a ruling on a separate section of the securities laws under which Pirani sued, known as Section 12, which has a less burdensome requirement of reliance by an investor.
Again, a direct listing is a relatively new way for a private company to go public that doesn’t require a securities underwriter. One of the benefits of direct listing is that existing shareholders do not have to wait to sell their stock shares. A direct listing also provides a more fair market to participate in at the outset because anyone from the general public to institutions can buy the stock at the same price whenever it opens for trading. This ruling by the Supreme Court could narrow the types of securities lawsuits that could be brought against companies that go public using that method.
The case is Slack Technologies LLC et al. v Pirani, case number 22-200, in the Supreme Court of the United States. Our Securities Litigation Team tracks cases like these and others to ensure we are on top of the securities laws that impact consumers and their rights to protect their hard-earned money. If you have a securities question, feel free to contact James Eubank, Demet Basar, Paul Evans or Dee Miles. They can be reached as set out below in the next part of this section.
Beasley Allen Securities Litigation Team
Beasley Allen lawyers in our Consumer Fraud & Commercial Litigation Section remain very active in securities cases. This area of our practice continues to grow. We anticipate there will be a marked increase nationally in securities litigation. Lawyers in our Consumer Fraud & Commercial Litigation Section welcome any opportunity to investigate suspected practices and are blessed to be able to engage with both new and established colleagues in federal securities law and state securities litigation.
You can contact a member of our Securities Litigation Team concerning any securities issues. The team consists of the following lawyers: James Eubank, who heads the team, along with Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the section, also works with the team. The team members can be reached at 800-898-2034 or by email at
MASS TORTS LITIGATION
CPAP Litigation Update – Two Years From Philips’ Recall
We are now at the second anniversary of Philips’ June 14, 2021, recall of millions of its CPAP, BiPAP, and ventilator devices due to the potential health risks associated with exposure to the degraded sound abatement foam particles and chemical emissions, including asthma, chronic respiratory illness, lung cancer, and kidney disease and cancer. Approximately 450 personal injury cases have been filed in the multidistrict litigation (MDL) court. A smaller number of cases have been filed in Massachusetts state court.
The parties in this litigation are primarily focused on document production and discovery. Philips claimed to have produced over 4 million pages of documents, and plaintiffs, in turn, are providing fact sheets and other related discovery. The plaintiffs are scheduling depositions of various defendants that should take place this summer. Beasley Allen will continue to provide updates to this litigation as it progresses.
Millions of CPAP, BiPAP, and ventilator machines are in use today. If you or a loved one has been diagnosed with asthma, chronic respiratory illness, lung cancer, or kidney disease or kidney cancer after using a recalled Philips CPAP, BiPAP, or ventilator machine or experienced a worsening of a breathing condition, you may qualify for a Philips CPAP Recall Lawsuit. If you have a potential case or need more information, contact Beau Darley, a lawyer in our firm’s Mass Torts Section. He can be reached at 800-898-2034 or by using the contact form below.
Infant Formula Litigation Update
Beasley Allen lawyers continue to investigate and file cases of Necrotizing Enterocolitis (NEC) in premature, underweight infants who were fed cow’s milk-based infant formula, namely Similac and Enfamil. NEC is a dangerous gastrointestinal condition that damages developing intestinal tissue, often causing intestinal perforations that allow bacteria and other harmful substances to leak into the abdomen and bloodstream. Many of these stricken babies require surgery to repair the necrotic intestinal tissue, and 20-30% do not survive.
Other long-term complications from NEC include parenteral nutrition-associated cholestasis and liver dysfunction, poor growth/malnutrition, metabolic bone disease, short bowel syndrome, sepsis/severe infection, and even neurocognitive impairment. Similac and Enfamil manufacturers aggressively market their dangerous products to new and expecting mothers without any warning of the risk of NEC when given to premature babies.
In the federal multidistrict litigation (MDL) court in the U.S. District Court for the Northern District of Illinois, discovery is ongoing as the court considers the procedure for selecting bellwether trials, expected to occur next year. In the state court litigation in Madison County, Illinois (where most of our firm’s cases are pending), the defendants have appealed their jurisdiction objections to the Fifth District Court of Appeals and have petitioned the Illinois Supreme Court to stay further proceedings until the Fifth Circuit has ruled. The briefing is underway, and our lawyers expect a ruling from the appellate court on the jurisdiction issues before the end of summer. In the meantime, we continue to investigate and file these cases.
David Dearing and Brittany Scott, lawyers in our firm’s Mass Torts Section, oversee this litigation. For more information, contact them at 800-898-2034 or by using the contact form below.
The Court Issues Plaintiff Fact Sheet Order In Acetaminophen Autism/ADHD MDL
On March 23, 2023, U.S. District Judge Denise Cote issued an order in the Acetaminophen Autsims/ADHD multidistrict litigation (MDL) regarding Plaintiff Fact Sheet submissions. The order requires plaintiffs to submit “substantially complete” Fact Sheets through its central filing system, MDL Centrality. Submissions were originally due on May 22, 2023, but the deadline was extended to June 16, 2023. Plaintiff Fact Sheets are required for all cases currently pending in the MDL. Future cases are required to complete Plaintiff Fact Sheets within 60 days of filing a Short Form Complaint.
Upon receipt of Plaintiff Fact Sheets, defendants have 45 days to review and notify the plaintiff of any deficiencies. If deficient, plaintiffs have 14 days to cure the deficiency. If not cured within that time, the defendant(s) may seek a Show Cause Order for why the case should not be dismissed.
Beasley Allen Mass Torts Section lawyers are investigating cases involving prenatal exposure to acetaminophen for those subsequently diagnosed with Autism Spectrum Disorder or ADHD. For more information, contact Mary Raybon or Melissa Prickett at 800-898-2034 or by using the contact form below.
Source: In re: Acetaminophen – ASD-ADHD Prods. Liab. Litig., 22-md-03043-DLC, Doc. 517
Hair Relaxer Litigation Update
Beasley Allen lawyers continue handling lawsuits on behalf of women who regularly used chemical hair relaxers and developed uterine cancer, endometrial cancer, and ovarian cancer.
Recently, two new Case Management Orders (CMOs) have been entered into the MDL pertaining to the hair relaxer litigation. On May 18, 2023, Judge Mary Rowland issued CMO 4, which pertained to a stipulated protocol for producing documents and electronically stored information. The procedures and protocols outlined in the order govern all parties’ production of documents and electronically stored information (ESI).
On May 24, 2023, Judge Rowland issued CMO 5, which was an agreed confidentiality, privilege and clawback order. All materials produced during discovery are subject to the CMO 5 concerning confidential information. These orders can be found on the MDL docket.
The defendants in the hair relaxer MDL will move to dismiss the consolidated complaint. Thus, the court has declined to enter an order allowing the filing of claims through a Short Form Complaint. Therefore, remember when filing cases directly into the MDL, the plaintiffs must assert the lead paragraph into their complaint as discussed in CMO 2, which includes a statement indicating the case is being filed in accordance with CMO 2, as well as a designation of venue which will be the presumptive venue of the case upon remand.
Beasley Allen lawyers in our Mass Torts Section are actively investigating cases of uterine cancer, endometrial cancer, and uterine cancer in women who developed these conditions after frequently using chemical hair relaxers. Contact Aigner Kolom or Melissa Prickett, lawyers in our Mass Torts Section, for more information. They can be reached at 800-898-2034 or by using the contact form below.
TOXIC TORT LITIGATION
3M Reaches $12.5 Billion Settlement Over PFAS Contamination
Chemical manufacturer 3M Co. agreed to pay up to $12.5 billion to settle lawsuits over the polluting U.S. public water systems with so-called “forever chemicals.” The potentially harmful compounds are per- and polyfluorinated substances known as PFAS. They are found in firefighting foam and household products, such as nonstick cookware. PFAS have been linked to health problems, including cancers and immune system problems.
The agreement, subject to court approval, settles a lawsuit that was scheduled for trial early last month. That case involved a claim brought by the community of Stuart in Florida. About 300 other communities have filed similar lawsuits against companies that made firefighting foam or the PFAS in the foam.
According to the agreement, 3M will pay $10.3 billion over 13 years. The company will pay up to $12.5 billion if more water systems are affected. The money will help cover the cost of filtering out PFAS from systems where the chemicals have been detected.
Also in June, DuPont de Nemours Inc., Chemours Co., and Corteva Inc. reached a $1.18 billion agreement to settle PFAS complaints from about 300 drinking water providers. Several states, airports, firefighting training facilities, and private well owners have also filed suits. Those lawsuits are pending in the U.S. District Court in Charleston, South Carolina.
The plaintiffs are represented by Napoli Shkolnik LLP, Baron and Budd LLP, Douglas & London PC, Weitz & Luxenberg, Morgan & Morgan and Levin Papantonio.
The cases are City of Stuart, Florida v. The 3M Co. et al., case number 2:18-cv 03487, and In re: Aqueous Film-Forming Foams Products Liability Litigation, case number 2:18-mn-02873, both in the U.S. District Court for the District of South Carolina.
AFFF Firefighting Foam MDL Update: Personal Injury Claims
The AFFF Firefighting Foam multidistrict litigation (MDL) involves various causes of action and claims relating to per- or polyfluoroalkyl substances (PFAS). Plaintiffs generally allege that aqueous film-forming foams (AFFFs) containing perfluorooctanoic acid (PFOA) and/or perfluorooctane sulfonate (PFOS), two types of PFAS, contaminated groundwater near various military bases, airports, and other industrial sites where AFFFs were used to extinguish liquid fuel fires. Plaintiffs allege that they were caused personal injury by drinking polluted water or exposure to the foam or gear through their training or profession as a firefighter or in the military.
On May 1, 2023, the National Institute of Standards and Technology (NIST) published new research on the presence of PFAS in different textiles used in firefighter turnout gear. Findings revealed that each tested textile contained one to 17 different PFAS. Because of this data, many plaintiffs have initiated legal action against the manufacturers of PFAS and firefighting gear, claiming the chemicals caused or elevated the risk of cancer and other health issues.
The U.S. Centers for Disease Control and Prevention (CDC) has launched the National Firefighter Registry (NFR) for Cancer. The NFR is used to track and analyze the work firefighters do and cancer rates among firefighters. Any firefighter in the U.S. can enroll, and this data is compared with cancer information from state cancer registries. This collection was made mandatory by Congress’ Firefighter Cancer Registry Act in 2018. The initiative is part of President Joe Biden’s “Cancer Moonshot” program and is managed by the National Institute for Occupational Safety and Health (NIOSH). Cancer rates in firefighters are higher than in the general public. Thankfully, this data has helped AFFF cancer risk move from hypothesis to accepted fact.
Over fifteen different injuries are commonly filed in the AFFF MDL. Over 300 more AFFF firefighting foam lawsuits were added to the class action MDL from mid-May to mid-June, bringing the number of claims to almost 4,800 at the time of writing. U.S. District Court Judge Richard Gergel for the District of South Carolina presides over this MDL. On June 5, 2023, Judge Gergel granted a joint motion to delay the bellwether trial that was supposed to start that day. This came after the court’s late May ruling denying the defendants’ motion to exclude the Environmental Protection Agency’s proposed drinking water standards for PFOA and PFOS, allowing these standards to be evidence in the trial. Many are still filing their personal injury claims in the MDL. Beasley Allen is working hard to help these individuals.
Sources: The Guardian, DuPont and American Water Works Association
Aqueous Film Forming Foam – Firefighting Foam
Lawyers in our Toxic Torts Section are investigating personal injury cases where people have been exposed to firefighting foam containing toxic PFAS chemicals. The product is Aqueous Film Forming Foam (AFFF).
PFAS-containing firefighting foam (AFFF) is highly effective in fighting the most dangerous and difficult fires. However, the toxic foam seeps into the ground, tainting the water supply surrounding communities and cities use for drinking water.
For those who are not familiar with the problems caused by PFAS chemicals, they are known as “forever chemicals” because they do not break down. When consumed or absorbed by humans, the chemicals remain in the body. Even small amounts of PFAS in the body can have serious health effects, including:
- Kidney cancer
- Testicular cancer
- Prostate cancer
- Pancreatic cancer
- Liver cancer
Lawyers in our Toxic Torts Section are handling claims seeking compensation for injured parties exposed to water contaminated by AFFF firefighting foam. We welcome the opportunity to work with you or discuss any cases you receive on the topic. Beasley Allen lawyers handling this case can be reached at 800-898-2034 or by using the contact form below.
Paraquat Litigation Update
As the Oct. 16, 2023, multidistrict litigation (MDL) bellwether trial date in In Re: Paraquat Litigation draws closer, the MDL court, with Chief Judge Nancy Rosenstengel of the Southern District of Illinois presiding, is working through Daubert challenges. What is a Daubert challenge? Daubert is where both parties file motions to challenge the qualifications and testimony of each parties’ experts. These motions’ rulings will tremendously impact issues, including causation, damages, and, generally, how the litigation moves forward.
Beasley Allen lawyers Julia Merritt and Leslie LaMacchia serve on the Plaintiffs’ Executive Committee and have been working with MDL leadership and other executive committee members on developing these cases for trial. Julia and Leslie hosted a webinar last month on case updates and insight on bolstering the evidence in these cases. Bolstering evidence to show positive identification of paraquat presents many challenges: many of these claimants used paraquat in the 1970s or 1980s, and records have been lost or destroyed.
Our Paraquat Litigation Team has creatively and fiercely focused on finding documentary evidence of paraquat, interviewing witnesses, obtaining affidavits, and getting spray records from across the country. If you missed the webinar, it is available online at BeasleyAllen.com.
Beasley Allen lawyers continue the intake and filing processes for paraquat applicator cases for claimants with Parkinson’s disease or Parkinson’s-like symptoms. If you have any questions about the paraquat litigation or want to work with us on a case, contact Julia Merritt or Leslie LaMacchia by using the contact form below or by phone at 800-898-2034.
EMPLOYMENT AND FLSA LITIGATION
New FLSA Standard In The Sixth Circuit
The federal Sixth Circuit Court of Appeals, via a divided three-judge panel, instructed district courts in its circuit to show evidence of a “strong likelihood” that those who may be class members in a labor class have experienced Fair Labor Standards Act (FLSA) violations. Once shown, the court will approve notices to inform potential plaintiffs of their ability to opt in to an FLSA class action. This legal standard was modeled after a similar standard was used to issue preliminary injunctions.
One of the effects of this standard is the limit on opt-in plaintiffs early in an FLSA collective action. To help combat the lowered numbers of early opt-in plaintiffs, two judges agreed that “equitable tolling,” which allows a court’s discretionary extension of deadlines for workers for good cause, should be available to those who are not able to opt-in early. The third judge, Helene White, in the panel dissented on this issue, with a fourth judge who partially concurred in the decision.
Most courts use a two-step certification process that conditionally certifies a class and then scrutinizes whether the plaintiffs’ claims are similar enough to pursue as a group/class after discovery. In determining the standard to adopt, the Sixth Circuit could have adopted the Fifth Circuit’s certification test, which is much more rigorous than the two-step certification process and the newly adopted Sixth Circuit standard. As we see, the increase of circuit splits on the correct standard for determining FLSA class standards opens the possibility for the U.S. Supreme Court or Congress to weigh in on this issue.
Our firm’s employment law group monitors standards related to the Fair Labor Standard Act. If you have a client who is alleging violations of the Fair Labor Standards Act, we are ready to review these claims. Contact one of the lawyers on our Employment Litigation Team at 800-898-2034 or by using the contact form below.
THE CONSUMER CORNER
Summer Tire Safety
As we begin the summer season, it is important to ensure your vehicle’s tires are ready for summer travel. Most folks think that as long as their tires have sufficient tread depth, they will be safe. However, this is not exactly true. Tire aging is a significant factor when considering tire safety. Unfortunately, most consumers are unaware of the significance of tire aging when purchasing tires.
Tire aging occurs when the material properties of a tire degrade over time, which diminishes the structural integrity of a tire and creates a situation where catastrophic failure can occur. Tires age and experience this degradation in structural integrity whether the tires are regularly used or stored. A great example of this is a spare tire that does not receive regular use but may have all of its tread depth and, from all appearances, seems to be a new and safe tire to use. However, through significant research, the National Highway Traffic Safety Administration (“NHTSA”) has determined that tire aging can be a considerable safety factor.
Most tire and auto manufacturers have determined that tires should be replaced after six years. This recommendation includes tires that are routinely used and spare tires. For maximum performance, tire manufacturers recommend rotating the tires at least every 6,000 miles and checking the tire pressure. Checking tire pressure has been made easier for vehicles manufactured since 2007, with the requirement that each vehicle includes a Tire Pressure Monitoring System (TPMS), which provides consumers with an alert when a tire is underinflated.
Tire aging occurs when the ability of the tire to resist oxygen penetration that causes the rubber to break down on a molecular level decreases over time. A tire’s inability to resist cracking over time allows the rubber to harden and become brittle, thereby losing its strength and increasing the likelihood of a catastrophic failure. For this reason, it is important to check the Department of Transportation (DOT) code stamped onto the side of the tire, which provides the date on which the tire was manufactured. The stamped date code is a four-digit number that includes the week of the year the tire was manufactured and the last two digits of the year it was manufactured. For example, if the DOT code was “4920,” the tire was manufactured in the 49th week of 2020.
NHTSA has also determined that warmer parts of the United States are regions that are more susceptible to the effects of tire aging. The hotter the climate, the more likely a tire will experience premature aging, breaking down the rubber’s protective ingredients faster than in cooler climates. For this reason, it is essential to check the status of your tires as the summer begins so that you can ensure safe travel to summer destinations during the hot weather.
It is also good practice to start the summer season by visually inspecting your tires and having a tire service center check the air pressure and age of the tires.
Sources: Tire Aging: A Summary of NHTSA’s Work (March 2014) and Discounttire.com/learn/tire-safety
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.
- Business Litigation
- Class Actions
- Consumer Protection
- Employment Law
- Medical Devices
- Personal Injury
- Product Liability
- Toxic Exposure
- Whistleblower Litigation
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.
- Auto Accidents
- Aviation Accidents
- Camp Lejeune
- CPAP Devices
- Defective Tires
- Hair Relaxers
- Heavy Metals in Baby Food
- NEC Baby Formula
- Negligent Security
- Social Media
- Talcum Powder
- Truck Accidents
Resources to Help Your Law Practice
Once again, I remind our readers that Beasley Allen only handles litigation on behalf of individuals, companies and governmental entities that have been injured or damaged in some manner by a wrongdoer. Our lawyers do no defense work of any kind, and that includes working for companies in corporate America. I made that decision when our firm was founded in 1979, and that has been the firm’s policy ever since.
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 representing only victims of wrongdoing.
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.
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.
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 www.BeasleyAllen.com.
PRACTICAL TIPS FOR TRIAL
Maggie Arellano, a lawyer in our firm’s Toxic Torts Section, brings us the practice tip this month. Maggie is working on Camp Lejeune-related claims. Before joining the firm, Maggie was an Alabama Court of Civil Appeals Staff Attorney. She also served as an Assistant District Attorney in Elmore County, Alabama. During her time with the Court of Civil Appeals, Maggie learned first-hand the importance of a well-written product. She shares some legal writing tips for lawyers to consider if they want to make a good first impression with any written document submitted to a court. Let’s see what Maggie has for us.
Effective Attorneys Make Great First Impressions With Their Written Product
As a former Staff Attorney for the Alabama Court of Civil Appeals, I reviewed the written product of many attorneys, and I learned that the first impression we make as attorneys is often through our written product. As an advocate, our representation does not begin in the courtroom. It begins in the first written product we present on behalf of our client. This includes but is not limited to, the motions and briefs we draft and submit.
Not only is our first written product a reflection of us as attorneys, but, most importantly, it directly impacts our representation. The effectiveness, or lack thereof, is immediately attributed to our clients and will certainly be a determining factor in the likelihood of their success. Thus, it is absolutely necessary for us, as advocates for individuals and entities that trust us with their legal needs to be extremely mindful of the quality of our written product.
While solid arguments are instrumental to the success of our clients’ claims, I would like this article to serve as a reminder on the importance of applying fundamental legal writing concepts and a refresher of those concepts.
The Fundamentals of Legal Writing
- Identify Your Audience
Who is the intended audience of your legal writing? Is it a client, senior attorney, opposing counsel, or a judge? Identifying your intended audience allows you to sculpt your legal writing accordingly. A client is most often not a legal professional; therefore, not familiar with legal terms that you may be familiar with. Explaining legal concepts in plain language is the most effective way to communicate with any audience clearly and precisely, but particularly with clients and non-legal professionals. Judges and senior attorneys may not be familiar with the subject of your writing and may need additional instruction for them to understand your ideas and arguments. Opposing counsel may already be familiar with the topic of your writing. Thus you can focus on communicating your ideas and arguments.
- Organize Your Writing
Organization is key! Depending on the organization of those arguments or lack thereof, the same quality of ideas and arguments can have drastically opposite effects. A well-organized idea/argument is coherent and follows a logical progression that readers can easily understand. The following are three basic steps that help in organizing legal writing:
- The “Mapping Technique”
The “Mapping Technique” involves creating a roadmap for your reader. A roadmap informs your reader of where you are going and how you will get there. This prevents your reader from getting lost or confused along the way. The “Mapping Technique” is a great method to employ because it allows the reader to follow your idea and arguments.
- Develop The Analysis of Your Arguments
“Show, don’t tell.” Avoid making generalized and conclusory statements. In other words, avoid simply stating an argument and hoping the reader will understand or even agree with you. Start with the argument/idea that you want to and explain your thought process in a step-by-step manner. In developing the analysis of your arguments, build logically sound arguments that flow together and are sufficiently supported by caselaw.
Use transitions to provide flow to your arguments. Make sure that the transition between your ideas/arguments is seamless. One of the best ways to ensure your writing is fluid is to include topic sentences and headings. Topic sentences at the beginning of each paragraph help set forth the main idea/argument. The good use of headings and subheadings is beneficial in longer writings or writings that include various ideas/arguments.
Remember to cite binding authority first and, if beneficial, then persuasive authority. It is important to note that a citation’s strength is in the analysis you provide. The analysis serves as an explanation of why you chose certain case law. The following is a guide on how to analyze the case law cited:
- State the issue.
- Explain what the court held.
- State the facts that were determinative in the court’s holding.
- Compare or distinguish your client’s case.
- It is best to rely on a case law that exhibits the result you seek and make the similarities between your client’s case and the caselaw cited abundantly clear.
- If relying on case law with a result you are not seeking, clearly distinguish it from your client’s case so you can confidently argue that the court should not resolve your client’s case similarly.
- Conclude with Your Strongest Argument
There is no better or stronger argument than a counterargument that refutes the opposing side’s arguments. To come up with counterarguments, you must anticipate what the other side is thinking. Counterarguments are a powerful tool because it allows you to address the weaknesses in your client’s case, thus, solidifying your arguments.
- The “Mapping Technique”
- Edit, Edit, Edit
This is the most important step. You may prefer to print out a copy of your writing for this step, or you may not be inclined to print out your writing every time you edit. No matter your preference, always read aloud every time you edit and leave a couple of days for this task. It is best to give yourself time away from your writing between each edit so that you can start with a fresh pair of eyes each time. Here are a couple of tips to keep in mind while editing:
- Use active voice to ensure that the meaning of your ideas/arguments is clear. Turn a passive sentence into an active sentence by moving the verb to the beginning of a sentence.
- Beware of the placement of dependent clauses within or at the end of a sentence. Depending on its placement, the same dependent clause can cause the meaning of a sentence to change.
- Eliminate footnotes and incorporate them into the main body unless the information provided in the footnote is additional information that is not necessary to understand your idea/argument.
- Avoid the overuse of emphasis. Overusing emphasis in your writing product can have the opposite effect that you intend. When used appropriately, emphasis draws the reader’s attention, and you want to avoid crossing the line to the point that the emphasis in your writing is distracting.
- Avoid using a first-person point of view. A First-person point of view can appear informal and can weaken your credibility.
- Eliminate negative references to opposing counsel or any party to the case.
- Keep your writing concise. Say everything you need to in as few words as possible, avoiding jargon and legalese.
Moral of this Practice Tip: First Impressions Count!
A large number of safety-related recalls were issued during June. We mentioned several in the Motor Vehicle Litigation Section in this issue. There are other significant recalls available on our website, BeasleyAllen.com/Recalls/. We attempt to put the latest and most important product recalls on our site throughout the month. You are encouraged to contact Shanna Malone, the Executive Editor of the Jere Beasley Reportby using the contact form below 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.
Lawyer And Employee Spotlights
Kristen Adams joined Beasley Allen in February 2017 as a Staff Assistant in the firm’s Mass Torts Section, where she currently works. In her role, Kirsten is responsible for assisting the Infant Formula and Hair Relaxer Litigation Teams by managing and evaluating client files and helping the teams’ legal assistants as needed. Kristen’s role is significant to her team and the firm, and we are thankful to have such a hard-working employee like her with us!
Kristen and her husband Jonathan have four children, whom she describes as three smart and talented boys and one beautiful and talented daughter. Their oldest son graduated from Marbury High School last year. He joined the U.S. Navy and is stationed in San Diego, California. Kristen and her family live in Prattville, Alabama, and have several animals, including peacocks, chickens, horses, and cats. Kristen says she loves spending time with her family, whether fishing, gardening, lawn work, or just being together on the water somewhere!
Kristen says her favorite thing about working at Beasley Allen is how much the firm truly cares about the employees. She added, “It’s like working with family, and we all look out for one another. I’m constantly learning, and I love that.”
As stated above, Kristen is a hardworking, dedicated employee with an important position in the firm. We are fortunate to have her with us.
Aigner Kolom joined our firm’s Mass Torts Section in August 2015. She focuses on litigation involving clients who developed uterine cancer, endometriosis, uterine fibroids, or breast cancer after regularly using hair relaxers. Aigner has also handled personal injury cases involving talc, metal-on-metal hip implants, bone cement, proton pump inhibitors (PPIs), IVC filters, opioids, and other pharmaceutical products.
Before joining Beasley Allen, Aigner clerked for two outstanding judges in the Fifteenth Judicial Circuit Court of Alabama. She clerked first for former Presiding Judge Charles Price and then for Judge J.R. Gaines. Ainger also externed for Judge Keith Watkins, former Chief Judge of the U.S. District Court for the Middle District of Alabama. In addition, Aigner interned and clerked for Legal Services of Alabama. This vast experience has helped Aigner become a tremendously effective trial lawyer.
A loving family adopted Aigner when she was only six. The lawyer who facilitated the adoption inspired her to choose a career in which she could help others who need it most. Aigner says she knew instantly she wanted to become a lawyer. From that point forward, a number of lawyers she met showed her she could make a difference in the lives of others.
Aigner graduated from Auburn University in 2010, earning her B.S. in business administration and human resource management. She earned her Juris Doctor from Faulkner University Thomas Goode Jones School of Law, graduating summa cum laude in 2015. Aigner made the Dean’s List every semester and was awarded Best Paper for Civil Procedure, Contracts, Business Associations, Professional Responsibility, and Family Law.
Aigner says achieving successful client results is her favorite part of being a trial lawyer. She believes trial lawyers are vital in the judicial system to protect people. She says she enjoys practicing law at Beasley Allen because the firm nurtures its lawyers to do just that. Aigner says Beasley Allen lawyers care about communities and the people they serve.
Aigner is a leader in multiple professional associations. She currently serves as President-Elect of the Alabama Lawyers Association, Vice President of the Black Women Lawyers Association of Alabama, and Parliamentarian of the Capital City Bar Association. Aigner also serves in three leadership roles for the Montgomery County Bar Association. She is a Board Member At-Large and Immediate Past President of the association’s Women’s Section and Chair of its Mentoring Program. Further, Aigner has served on Montgomery Mayor Steven Reed’s Young Professionals Council and is a Leadership Montgomery – Torchbearers Alumna.
Aigner is also an active member of the Alabama State Bar’s Young Lawyers and Women’s Sections, the State Bar of Georgia, the American Association for Justice, and the Federal Bar Association. She serves on the Common Ground Ministry Board of Directors and is a Junior League of Montgomery member.
Aigner has been selected to the Midsouth Super Lawyers “Rising Stars” list since 2020. She has also been named to the National Black Lawyers Top 40 Under 40 list.
We are blessed to have Aigner at Beasley Allen. She does excellent work and is dedicated to the clients she represents as they seek justice.
Ryan Kral joined Beasley Allen’s Toxic Torts Section in October 2011. For over a decade, he has gained extensive experience representing a wide array of business, governmental, and individual clients in litigation.
Ryan currently represents clients in personal injury cases resulting from exposure to toxic chemicals in both individual cases and mass torts. Most recently, he represented water systems against companies that allegedly polluted their water supply with per- and polyfluoroalkyl substances, commonly known as PFAS. Ryan also worked with state governments to hold opioid manufacturers and distributors liable for the harms caused by the ongoing opioid epidemic. In addition, he assisted clients whose family members have suffered abuse and neglect in nursing homes and assisted living facilities.
Ryan previously represented trucking businesses in the “Hot Fuel” multidistrict litigation against oil companies, which resulted in over $20 million in settlements. Finally, he represented businesses, commercial fishermen, and individuals who suffered injuries from exposure to oil and other dispersants as part of the BP oil spill litigation, obtaining tens of millions of dollars of compensation on their behalf.
Ryan says he had two primary motivations for becoming a lawyer, adding:
I like the challenge of working through complex problems to find solutions. Arguing and debating are also fun aspects that drew me to the profession.
Ryan graduated magna cum laude from Birmingham-Southern College in 2008, earning his B.S. in political science with a minor in Spanish. He obtained his Juris Doctor from the University of Alabama School of Law in 2011.
During law school, Ryan represented clients through the school’s Civil Law Clinic. He also served as a judicial intern for Jefferson County Civil Circuit Judge Michael Graffeo and clerked at another law firm.
Ryan says he enjoys many aspects of practicing law, explaining:
What we do is relevant and significantly impacts our clients, and the world, for the better. Every new project or case presents a new challenge that is intellectually stimulating. While working up cases, I get to interact with a wide array of people, from experts to witnesses to clients, who offer unique perspectives not only on the case at hand but also life. Interacting with people from all walks of life ensures that I continue to learn new things everyday and grow as a human being. And, of course, the best feeling is when you obtain a satisfactory result for a client.
Ryan explained that he is grateful to practice at Beasley Allen, saying:
The firm’s emphasis on faith, family, and work in that order is unique in the hypercompetitive legal field. Prioritizing what truly matters makes the work a lot easier too. Also, the people here are great. They’re ambitious and truly care about our clients. It’s tough to find both those qualities in a lot of places.
Ryan has been selected to the Midsouth Super Lawyers “Rising Stars” list since 2018. He has also been named to the American Academy of Attorneys Top 40 Under 40 for Alabama personal injury law and the National Academy of Personal Injury Attorneys Top 10 Under 40 lists. In addition, Ryan has been selected to the National Trial Lawyers Association’s Top 40 Under 40 for Civil Plaintiffs. In 2018, he was recognized as Beasley Allen’s Lawyer of the Year for the Toxic Torts Section. Best Lawyers also named Ryan to its “Ones to Watch” list for his environmental law work in 2021 and 2022.
We are most fortunate to have Ryan with the firm. He is a definite asset.
Lacy Luck works in the firm’s Toxic Torts Section as a Legal Secretary. She joined Beasley Allen in 2021 and has been a tremendous asset to her team and the firm!
Lacy is part of the Roundup, Paraquat, and Camp Lejeune Litigation Teams, assisting in handling all necessary forms for settlement and assisting clients with dual representations. She also runs large mail and email merges, prepares invoices for approval, reassigns cases to be filed, and helps with other projects as needed. We are thankful to have Lacy, a dedicated employee who works very hard, with us!
Lacy lives in Montgomery, Alabama, where she was born and raised. Her father, Aaron J. Luck, is a very good lawyer practicing in Montgomery, and her mother, Amy Luck, is a nurse. Lacy has one younger brother who lives in Anniston, Alabama. Lacy shares that she and her family are very close and enjoy spending time together. Lacy loves cooking, reading, hanging out with friends, and traveling to the beach or lake in the summer! She says she has a big heart for animals, especially her two cats she adores!
Lacy says her favorite things about working at Beasley Allen are the people and work. She says, “I work with great people who encourage and uplift me daily. I am also super thankful that I have the opportunity to be able to help others!”
Stephen Mulherin is a new lawyer in the firm’s Personal Injury & Products Liability Section. He handles products liability, premises liability, and trucking cases. Stephen brings to Beasley Allen the experience he gained while representing clients in various commercial settings, including insurance coverage disputes, contract disputes, and land use matters. Stephen also clerked for current Chief Judge Emily C. Marks and former Chief Judge W. Keith Watkins of the U.S. District Court for the Middle District of Alabama.
Stephen says he chose to enter the legal profession to help others, saying:
Seeking redress through the legal system is a stressful and time-consuming process for those who have been harmed. I became an attorney in order to advocate on behalf of these individuals and help guide them through the intricacies of the legal process so that they may obtain meaningful relief from the wrongs that they have suffered.
Stephen graduated with a B.A. in political science from the University of Georgia in 2015. In May 2019, he earned his Juris Doctor from the University of Georgia School of Law, graduating cum laude.
During law school, Stephen earned the Georgia Civil Justice Foundation Trial Advocacy Scholarship and the CALI Excellence for the Future Award in evidence. He was also inducted into the Order of Barristers and served on the Executive Board for UGA’s chapter of the American Constitution Society.
Stephen enjoys confronting tough legal challenges to achieve successful client results. He appreciates working with his Beasley Allen colleagues and believes the firm stands in a league of its own. He explains:
Beasley Allen stands apart from other law firms due to its ability to effectively litigate complex cases across a variety of venues. Whether it is a traditional personal injury case, class action, or multidistrict litigation, Beasley Allen possesses the expertise, talent, and resources to deliver meaningful results to its clients.
We are pleased to have Stephen join the firm. He will be a definite asset.
Eric Smith works in the firm’s Marketing Department as a Videographer/Photographer, where he is responsible for shooting all firm-related photos and videos, including lawyer and staff headshots, candid event photos, lawyer bios, client testimonials, and videos of various cases in which the firm is involved. Eric is also responsible for redesigning, branding, and updating the firm’s website and all case-related social media graphics. He joined the firm in 2021, and we are fortunate to have such a talented and devoted employee like Eric with us!
Eric and his wife, Christine, live in Pike Road, Alabama. They have one child, Aaron, who lives in Marrietta, Georgia, with his wife, Stephanie. Eric is an avid Star Wars fan and collector, and he says that he and Aaron have a shared collection obsession, in which he thinks they both collect a bit of everything! Eric enjoys almost all outdoor activities, including hunting, fishing, gardening, cooking, and traveling. He also loves quality time with his family, preparing meals for them, playing video games, and collecting toys and memorabilia.
Eric says the family atmosphere and the feeling of appreciation are among the greatest things about working at Beasley Allen. He added: “We have a great department from leadership to teammates. We work together and help each other make our team stronger!”
Parker Miller Named Finalist For 2023 Southeastern Legal Awards “Attorney Of The Year”
Parker Miller, a lawyer in Beasley Allen’s Atlanta office, is one of three finalists for the Daily Report’s Southeastern Legal Awards 2023 Attorney of the Year. The award recognizes a Southeastern lawyer who had the biggest impact on the law and the Southeast legal community or did the most to advance the cause of justice in 2022. Beasley Allen is honored to have been on this list two years in a row.
“When I see the combination of the diversity of the cases and the demands that all of them required that are different, and then the results, it tells me that I’ve climbed a ladder,” Parker said.
Parker grew up on a cattle farm in Marengo County, Alabama, and is no stranger to hard work. His parents instilled in him a “tough, blue-collar mentality.”
Today, as a principal in Beasley Allen’s Atlanta Office, Parker’s dedication to excellence has led him to become a finalist for the 2023 “Attorney of the Year” award at the Southeastern Legal Awards. Parker observed:
I really feel like this past year has been a watershed moment in my career. There’s been a lot of work behind the scenes when nobody’s looking, late at night, early in the morning, on my own … that people don’t see. All this work that I’ve done has been recognized by somebody. That’s humbling.
Parker has helped clients from different walks of life – individuals, families, businesses, and state governments – recover an impressive $3.5 billion in verdicts and settlements.
His work on several high-stakes disputes in 2022, including a $26 million negligent security global settlement, has only further cemented his reputation as a skilled and effective advocate for his clients. Parker says:
To be able to deliver that result was extremely meaningful because sometimes, unfortunately, no matter how hard you work… that reward doesn’t come. So, when it does come, it’s humbling, to say the least.
Last year alone, Parker secured resolutions valued at an impressive $1 billion. He served as lead trial counsel in a landmark $160 million verdict for the families of concertgoers killed at a production in Atlanta, negotiated and secured a $17.25 million trucking settlement, and a $6 million global policy limits settlement following a workplace accident.
Parker’s reputation as a top-notch litigator was already well-established in Georgia. He was the outside co-lead counsel to Attorney General Chris Carr in the state’s litigation against opioid manufacturers and distributors since 2018. Parker played a crucial role in this significant civil action that resulted in the recovery of $636 million to date. Parker said: “I’m most proud that I made it through. I didn’t-quit. I stayed true and consistent.”
From the outside looking in, his nomination for Attorney of the Year seems clear. However, when asked for the reason behind his nomination, Parker noticed a recurring theme in his most noteworthy cases. He says:
I can see all those clients in my mind, and what I really see is their trust. It doesn’t matter how big the case is. It just matters whether somebody placed enough trust in me to hire me as their lawyer to trust what I said and then to be able to deliver.
Those who have worked with Parker throughout his career believe the nomination is well-deserved. 2022 Attorney of the Year finalist and Beasley Allen Managing Attorney Chris Glover said it has been “such a pleasure to practice with a friend like Parker.” Chris added:
Parker is a tremendous legal mind, but his success also comes because he always puts the clients’ needs first by tirelessly pursuing the maximum justice achievable in every case.
Fellow Beasley Allen lawyers Navan Ward and Alyssa Baskam agreed with Chris, adding the following:
Navan considers Parker “a great lawyer” but noted that “his greatest asset is his character.” Navan said, “He is trustworthy, committed, and determined. His work product speaks for itself and always exceeds expectations. He has great communication skills and an uncanny ability to relate to just about anyone. This served him particularly well when brokering an opioid deal between the state of Georgia, the Georgia Legislature, and over 200 Georgia local governments.”
Alyssa commended Parker’s commitment to excellence. She had this to say:
Parker is the type of lawyer who leaves no stone unturned. He is never satisfied with adequate. He is always learning, growing, and pushing for our clients. With him, it truly is all about our clients and doing everything he can to ensure the best possible outcome for them. His heart and work ethic shine through in everything he does, and we are so lucky to have him in the Beasley Allen Atlanta office.
Parker has a deep respect for Beasley Allen and sees it as a huge professional compliment to be able to contribute to the firm as much as possible. Parker says:
Beasley Allen’s leaders trusted in me at a time when no other law firm did, and they’ve always done that. They’ve always invested in me. I think maybe the greatest professional compliment I could get would be to be trusted by my firm to help it as best I can. I’ve always been that personality that anything can be taken from me at any time if I don’t stay aware and on guard. You’ve got to start thinking about the next step because no matter how good the time was before, it can all be taken away.
Parker continues to look ahead; whether he is named “Attorney of the Year,” his focus is to keep growing. He is leading the charge on several high-profile cases, including a groundbreaking lawsuit against MindGeek for alleged child sex trafficking and racketeering and wrongful death suits against a Mississippi tire company and a Georgia mobile home park owner.
An excellent article written by Cedra Mayfield appeared online at Law.com on June 20, 2023.
Beasley Allen Lawyers Assist With The Johnson Institute’s Scholars Program
The Judge Frank M. Johnson, Jr. Institute hosted its first Scholars Programs last month. Beasley Allen lawyers Lauren James, Elizabeth Weyerman and Warner Hornsby attended the conference designed to promote students’ knowledge of the U.S. Constitution through court cases interpreting constitutional law.
The annual professional development conference joins civics and history educators with legal professionals to discuss teaching middle and high schoolers the U.S. Constitution. Attendees experience professional learning, receive classroom resources, and develop teaching strategies for incorporating landmark constitutional law cases into classroom instruction. Participants also receive access to the Johnson Institute’s educational resource library, community of experts, and future professional development opportunities.
Most conference sessions were held at the Frank M. Johnson Jr. Federal Courthouse, famous for the historic rulings made within its walls. Groundbreaking cases decided at the courthouse include Browder v. Gayle, Gomillion v. Lightfoot, Williams v. Wallace, Pugh v. Locke, and Frontiero v. Laird. Judge Johnson’s pivotal decisions within these cases include bus desegregation in 1956 and authorizing the Selma to Montgomery March in 1965.
Focusing on Civil Rights Era cases, judges and lawyers led various sessions over three days, developed lesson plans with conference participants and enjoyed group lunches and dinners. Conference sessions included an “Overview of the Court System and Appeals,” “Anatomy of a Criminal Case,” “Anatomy of a Civil Case,” and “Historic Court Cases.” During the “Civil Discourse and Difficult Decisions” session, legal professionals led teachers through a mock trial resembling a U.S. Supreme Court case. This year, Lauren and Warner guided participants through this portion, assisting with case preparation and rendering a jury verdict. Elizabeth and Lauren also had the privilege of attending one of the conference dinners.
The Beasley Allen lawyers appreciated the opportunity to participate in this year’s program. Lauren had this to say:
We’re grateful for the opportunity to partner with teachers investing in our youth. As lawyers, we believe that future generations should have a firm grasp of the laws on which this country was founded. Empowering educators with knowledge and tools to share the Constitution with adolescents is a rewarding experience.
I serve on the Board of Directors of the Institute. Having known Judge Johnson and also the fact that he helped change America during his time on the federal bench, I consider being on this board to be a distinct and high honor.
Public Citizen At 50: Reflecting On The Past, Envisioning The Future
Public Citizen is a nonprofit consumer advocacy organization that champions the public interest in the halls of power. The organization is a powerful advocate for consumers. It defends democracy, resists corporate power, and fights to ensure that government works for the people – not huge corporations. It uses every tool at its disposal to take on big battles and win.
As it marks its 50th anniversary, its President, Robert Weissman, briefly highlights some of Public Citizen’s accomplishments and looks at the group’s vision for its work moving forward. Rob said:
Being outrageously ambitious has fueled our success in the past. If we don’t aspire to make the world just, we’ll never get there. If we embrace the challenges – yes, we’ll fall short; there’s no end to the work – but we’ll make greater progress than if we lower expectations.
In a recent editorial, Rob shared a few of Public Citizen’s numerous accomplishments, including the following:
- Getting airbags in vehicles.
- Removing deadly and dangerous drugs from the market.
- Helping pass Wall Street reform.
- Creating the Consumer Financial Protection Bureau.
- Winning the first fuel economy standards.
- Suing for release of the Nixon White House tapes, Trump administration White House visitor logs, Regan administration records, and more.
Rob doubles down on the organization’s successes with a very ambitious agenda in the years ahead. He notes that despite the current political landscape, Public Citizen vows to continue standing up to the corporate “goliaths” by educating, organizing, advocating and litigating. Rob had this to say:
We are animated by that same commitment to justice, passion, fearlessness and persistence. We face great challenges – and great opportunities – in the following important areas:
- Democracy – Public Citizen will build on the legislative momentum generated this year to win far-reaching reform by expanding the freedom to vote, ending Dark Money and overturning the U.S. Supreme Court’s decision in Citizens United.
- Health Care for All – the group has a prescription to address the imbalance within the current health care system. The system “is designed by and benefits health insurers, hospital chains and Big Pharm. But it is failing the American people.” Public Citizen is targeting Medicare expansion, building “support to overcome Big Pharma’s patent monopolies and lower prices,” to name a few of their planned efforts.
- Taking on Corporate Power – Public Citizen recognizes the obstacles corporate power sets in motion that block or reduce the efficacy of “democracy, a fair economy, our health, safety, a just society and a livable planet.” With this knowledge in mind, the organization will continue to go head-to-head with corporate power using “sophisticated and hard-hitting campaigns to limit its political influence, hold corporations accountable in court, break up monopolies, defend the justice system, impose strong regulatory controls, punish corporate criminals and more.”
I have been a supporter of Public Citizen for years and recognize how important their work has been and continues to be. I encourage others to support Public Citizen and help them carry on the work that is so badly needed. You can reach Public Citizen at 800-289-3787 or online at citizen.org.
David Bronner’s Candid Observations
We are enclosing a piece written recently by Dr. David Bronner, Chief Executive Officer of the Retirement Systems of Alabama. I consider David, a living legend, to be as knowledgeable on matters affecting state government and the people of Alabama as anybody around today. In fact, David would have been a great governor had he chosen that route. Having dealt with David, both during and after my time in government, I can say without reservation that this man “tells it like it is.” David is well respected, not only in Alabama but nationwide.
Alabama: Who Has The Power?
At one time or another, you have heard that Alabama has the longest and most out-of-date state constitution in America. My first General Counsel for the RSA, William T. Stephens, a Harvard law grad, tried his hardest to improve the 1901 relic; only one article was changed!
Unlike many states, the Alabama State Constitution gives most of the state’s power to the Alabama Legislature and not the governor. Our governors cannot veto legislation because the simple majority that passed the legislation can override the veto without one additional vote! We all know this, so what?
Alabama must have strong leadership from its Legislature or our progress is limited! Does this Legislature really want to spend the most funds Alabama has ever had on real BUT minor problems or attack the major problems instead? Allowing overtime to be exempt from taxes (which I have never heard of any other state doing), but not expanding the best Pre-K program in America. Cutting grocery taxes by ONE percent or less, when the tax is 10%, and then expect jubilation from Alabamians. Why not improve education for our children?
How many of us would not choose to solve the huge medical problem of 230,000 vulnerable Alabamians without health insurance and the closing of rural hospitals, when you only need 10 cents for every 90 cents Uncle Sam will give us to solve these major problems.
Adopt the Arkansas solution of funding these problems for Alabamians’ long-term prosperity. Arkansas’ Medicaid expansion program is now called ARHOME – the Arkansas Health and Opportunity for Me – and provides healthcare coverage to about 340,000 low-income Arkansans. The federal government pays for 90% of the cost of the Medicaid expansion program, and the state covers the rest of the tab. In fiscal 2023 that started July 1, the state Department of Human Services forecasts spending $2.67 billion for ARHOME with the state share of about $267 million.
FAVORITE BIBLE VERSES
Several lawyers and staff employees who are being featured this month share their favorite Bible verses in this issue.
Ryan Kral offers his favorite verse, Jesus’ warning to the Scribes and Pharisees – the religious elite in Jesus’ day – regarding humility. Ryan says, “Humility is such an important quality that, unfortunately, is often overlooked. It’s a virtue that enables us to be real and cut through any false persona we may have, and simply be who we are. Humility reminds us that, despite what we do in our daily lives, we’re all God’s creatures who, in the end, will equally stand in judgment before him.”
Whoever exalts himself will be humbled, but whoever humbles himself will be exalted. Matthew 23:12
Aigner Kolom shares that her favorite Bible verse helps her stay grounded in her priorities in life and keeps her focused on what she is called to do. She says, “Sometimes I have a difficult time remembering exactly what is most important in my life. I find some of my days being consumed with different activities or events that I realize I’m not considering what is actually important. This verse helps me to remember that God is most important and my time should be given to him, and in turn, all that I need will be given to me.”
But seek first the kingdom of God and his righteousness, and all these things will be added to you. Matthew 6:33
Lacy Luck says her favorite verse is one she remembers when she feels down or needs encouragement.
Have I not commanded you? Be strong and courageous. Do not be afraid; do not be discouraged, for the Lord your God will be with you wherever you go. Joshua 1:9
Gun Violence In Alabama
Nationwide there had been 310 mass shootings reported as of June 1. Since then, there have been several more. A mass shooting is described as one where at least four persons were killed. At least one mass shooting happened recently in Alabama. I will discuss that tragic happening below.
She spent months planning it, but on the afternoon of her “Sweet 16” birthday party, Alexis Dowdell had “butterflies in her stomach” and was nervous. She recalled for reporters that her older brother, Philstavious “Phil” Dowdell, comforted and encouraged her to have fun. Phil died later that night protecting Alexis after gunmen attacked partygoers. Phil was one of four killed, and there were 32 others injured. By the end of the attack, 89 shell casings were left for investigators to collect, and it was believed at least six guns were used.
A small, tight-knit community now soaked in the gut-wrenching trauma of a “mass casualty” event was left grieving the attack that struck at its heart. Two months ago, on the night of the attack, the gunmen not only took the lives of four young people but also ripped away any sense of security that naturally accompanies life in a small town of 3,000. The residents of Dadeville, Alabama, and the outside world were left shocked – asking how something this tragic could happen in “Small Town, USA.” So what is the answer?
The answer – guns.
This answer evokes a range of emotions and responses in a pro-gun state such as Alabama. Yet, let’s consider the data that shows Alabama has the fourth highest gun death rate in the country, according to data collected by the U.S. Centers for Disease Control and Prevention.
A comparison of Alabama and New York State demonstrates the pervasiveness of gun violence in Alabama. New York State has 20 million people compared to Alabama’s 5 million. In 2021, there were 1,315 firearm deaths in Alabama compared to 1,078 in New York State. So, for every 100,000 people in Alabama, there were 26.4 firearm deaths in 2021, while there were 5.4 firearm deaths for every 100,000 in New York State that year. New York, a state with four times the number of people, had 237 fewer firearm deaths.
Alabama mirrors the national trend of growing gun sales. However, the 57.3% increase in Alabama’s rate between 2019 and 2020 was higher than the national 40.4% increase during the same time. This is measured by the number of background checks and information the FBI supplies.
Data also shows a link between the types of laws a state has regulating guns and the death rate in that state. States requiring longer wait times, such as background checks and gun storage laws, have a lower firearm death rate. Some of these laws that have proven effective in reducing or limiting the number of firearm deaths include permitting or registration requirements usually tied to background checks, requiring guns to be stored in a locked safe, and requiring guns and ammunition to be held in separate containers with locks. “Red Flag” laws have also helped keep firearm deaths down. These laws allow a court or other administration to remove firearms from people they deem a threat to themselves or others.
States like Alabama, Mississippi, Louisiana, New Mexico and Wyoming, the five states with the highest firearm death rates, have extremely limited gun sales, purchases and ownership regulations. Following the Dadeville tragedy, lawmakers on both sides of the aisle introduced bills that would strengthen gun regulation in the state. While the legislative session ended without passing any of the bills introduced, those lawmakers were not deterred. The loss of life and the desperation their constituents expressed over gun violence in their communities have served only to strengthen their resolve and perseverance as long as they remain in office.
It’s easy to discuss these numbers as faceless, abstract figures. But each incident measured to make up the death rate – represents a person. It means the loss of life – a life cut short that robs family, friends, communities and humanity – of the person’s impact and potential. It reflects how humans have allowed the devaluing of life – lives made in God’s image. If this type of violence doesn’t pierce the security of our little part of the world, we have the freedom to ignore the violence happening in other places. As more of us are affected in “Small Town, USA,” I pray our wake-up call isn’t too late.
Sources: CNN, Centers for Disease Control and Prevention, FBI
President & Congress Pass “Fiscal Responsibility Act” Demonstrating The Power Of Unity
In a demonstration of unity, the President and bipartisan Congressional leaders walked the country back from the brink of a historic default and worldwide economic devastation just days before the X-date we discussed last month in the Report. Democratic President Joe Biden and Republican House Speaker Kevin McCarthy worked out a deal that Congress passed and the President signed into law – the “Fiscal Responsibility Act” (FRA). The FRA agreement suspends, as opposed to raising, the debt limit until 2025 in exchange for federal program spending caps (not including defense spending or veterans’ health care costs) at fiscal year (FY) 2023 levels in FY2024. The amount also allows only a 1% increase in spending in FY2025, among other provisions.
President Biden summed up the results of the months-long negotiations: “The agreement represents a compromise, which means not everyone gets what they want. That’s the responsibility of governing.”
While Republicans achieved spending cuts, Democrats staved off the deeper funding cuts Republicans proposed in their “Limit, Save, and Grow Act.” Still, the Congressional Budget Office estimates the agreement will result in $1.5 trillion in savings over the next 10 years.
Highlights of the key agreement details include the following:
- Discretionary spending cuts – puts caps in place for six years for all nondefense and non-veteran health appropriations with across-the-board cuts for the first two years and only a 1% annual funding growth allowance in 2025.
- Defense spending – capped at 3% in 2024 and no budget caps after 2025.
- IRS funding cut – cuts $21 billion from an $80 billion increase in funding over the next decade for the Internal Revenue Service
- Federal safety net programs – the agreement expands work requirements for SNAP (Supplemental Nutrition Assistance Program/Food Stamps) adult recipients up to 55 without dependents, with the exceptions for veterans and people without housing, and includes a sunset provision for 2030.
- Clawback Covid-pandemic aid – a provision to recover $29 billion in unspent COVID-pandemic-related funding.
- Pay-go – a provision requiring the Biden administration to provide offsets for rules and regulations that increase federal spending.
- Relaxing restrictions on energy projects – changes to the National Environmental Policy Act will allow energy and infrastructure projects to be implemented faster. The changes include streamlining or improved coordination among federal agencies in the project approval process.
These on-again-off-again negotiations, especially the bipartisan negotiators’ work crafting a deal that was able to garner a majority of lawmakers’ support, show the potential and opportunities created when Democrats and Republicans work together for the good of the American people. Let’s hope this serves as a defining moment, or at least a point of reference, for the upcoming budget battles. The agreement reached was not perfect, but it was good enough to avoid a fiscal disaster.
I am convinced that the vast majority of Americans want our political leaders to put aside “politics as usual” and work together for the common good. A good way to start is by discussing difficult and pressing issues together and then working out agreements that benefit the American people. Is that too much to ask?
Sources: CNN, Roll Call and BBC
OUR MONTHLY REMINDERS
I have been asked recently why I label the collection of quotes in this section as “Our Monthly Reminders.” My response is that we need to be reminded of what “important” persons have said in the past that we can learn from and also be motivated by. I am also including 2 Chron 7:14 because it tells us how to “heal America.” So, here are the reminders again.
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.
Injustice anywhere is a threat to justice everywhere.
There comes a time when one must take a position that is neither safe nor politic nor popular, but he must take it because his conscience tells him it is right.
The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people.
Martin Luther King, Jr.
Get in good trouble, necessary trouble, and help redeem the soul of America.
Rep. John Lewis speaking on the Edmund Pettus Bridge in Selma, Alabama, on March 1, 2020
Ours is not the struggle of one day, one week, or one year. Ours is not the struggle of one judicial appointment or presidential term. Ours is the struggle of a lifetime, or maybe even many lifetimes, and each one of us in every generation must do our part.
Rep. John Lewis on movement building in Across That Bridge: A Vision for Change and the Future of America
The opposite of poverty is not wealth; the opposite of poverty is justice.
Bryan Stevenson, 2019
I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country….corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed.
U.S. President Abraham Lincoln, Nov. 21, 1864
The Rule Of Law Applies To All Citizens
Special Counsel Jack Smith announced in June that the federal indictment of former President Donald Trump was unsealed, and he encouraged everyone to read it. Mr. Smith, appointed in November 2022 by U.S. Attorney General Merrick Garland to oversee the criminal investigation of Trump, issued a “speaking indictment” rather than a normal one, highlighting the significance of the charges against Trump. In his call to the American people, Smith said:
Adherence to the rule of law is a bedrock principle of the Department of Justice. And our nation’s commitment to the rule of law sets an example for the world. We have one set of laws in this country, and they apply to everyone. Applying those laws. Collecting facts. That’s what determines the outcome of an investigation. Nothing more. Nothing less.
What is the Rule of Law?
The Rule of Law concept dates to as early as Plato and Aristotle. Both philosophers recognized that human nature falls prey to the notion of self-preservation. Humans are easily tempted when in a position of power to enforce laws based on individual erratic impulses and urges, often to the detriment of the less powerful. However, when the law, “created by the people and for the people,” is the standard by which all are judged equally, there is a lesser risk of favoring one person or group of people over another. It is the answer to tyranny – the cruel, unreasonable, or arbitrary use of power or control.
Although not explicitly defined in two of our country’s key founding documents – the U.S. Constitution and the Declaration of Independence – the Rule of Law is embodied in the principles discussed in both. It is the idea that a person in power or the political majority should not, and if our system of checks and balances is fully operational, will not be treated above the law or judged by a different standard of law.
The Rule of Law Sets the U.S. Apart From Other Countries
As we look around and witness other countries and governments jailing journalists, threatening those who stand up for human rights and demonizing the brave people who dare question a government’s decision, we can see how the Rule of Law sets our country apart from others. The Rule of Law is our nation’s heart, soul and strength.
Yet, recent history has demonstrated the delicate balance of tension necessary to preserve the Rule of Law with protecting people’s unalienable rights. Actions by some groups in power in the last few years have worked to subvert the Rule of Law. Such measures have included laws or law enforcement tactics thinly veiled as “counterterrorism” to suppress free speech and delegitimizing credible news sources by labeling their work as “fake news” because it doesn’t rubber-stamp some sensational talking points of the loudest group in power.
Trump’s Federal Indictment Puts Rule of Law to Landmark Test
Now, as the U.S. government prepares, for the first time, to try a former U.S. President for criminal charges, the Rule of Law will be put to a new and most significant test. The country’s judiciary is critical in upholding the Rule of Law. The courts prevent officials from abusing their power, allowing for justice and fairness always to prevail – as envisioned by those who founded this country. Let there be no doubt: this system, designed to uphold the Rule of Law, must be tested equally. I have to believe that it will be.
The U.S. Department of Justice (DOJ) indicted Trump, and it was the second time the former President has been indicted this year – he was indicted in Manhattan, New York, in April for falsifying business records. However, the indictment announced in June was for federal crimes. It is the first federal indictment against a former U.S. President.
While Mr. Smith assured the public that Trump, like any accused person in this country, is innocent until proven guilty, allowing the system to work as designed is imperative. The Rule of Law tells us that no one – not even a former U.S. President – is above the law.
The federal government charged Trump with 37 claims regarding mishandling classified documents after he was no longer in office.
Two Recent, Parallel Cases Can Serve As Benchmarks for Trump’s Case
Two other cases involving the illegal possession and mishandling of classified documents are unfolding amid Trump’s federal indictment. Let’s take a look at those cases and how they turned out.
A 55-year-old former U.S. Air Force intelligence officer pleaded guilty earlier this year to unlawfully possessing and retaining classified documents relating to national defense, according to the DOJ. Birchum was sentenced to three years in federal prison.
Jack Teixeria, a 21-year-old Massachusetts Air National Guardsman Jack Teixeira was arraigned after he was charged with willful retention of national defense information, among other charges. The government has proof Teixeira shared the information with others. Teixeira published information on an online social media platform, Discord. He has pleaded not guilty.
Neither I nor my law firm intends to convey any opinion or impression as to the guilt of the former President. The sole intent of this writing is to convey the vital importance of the Rule of Law in our Republic, a democratic form of government, and its importance to all people in our country. Needless to say, the Rule of Law is about to be put to a severe test, and the news media will have a busy time over the upcoming months. Hopefully, the American people will follow this matter closely and understand that the Rule of Law is critically important to their welfare and to that of our country.
Sources: CNN, U.S. Department of Justice, NBC News, Time