The Jere Beasley Report June : 2021

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CAPITOL OBSERVATIONS

Alabama Attorney General Awarded “Consumer Champion” Award

Alabama Attorney General Steve Marshall received the inaugural “Consumer Champion” award to recognize his work, and that of his staff on the historic $60 million settlement reached last November in the Terminix International lawsuit and by putting Alabama consumers first. The lawsuit alleged that the Memphis-based pest control company overcharged Alabama customers, specifically in Baldwin and Mobile counties, by collecting annual termite production premiums but failed to provide termite protection services as promised. Consumer Watch, a nonprofit organization, presented Attorney General Marshall with the award last month.

The settlement stated that Terminix’s conduct violated several provisions of the Alabama Deceptive Trade Practices Act. A joint investigation by the Attorney General’s office and the Alabama Department of Agriculture and Industries also discovered that Alabama customers were paying extra money to the company for pesticides they already purchased and had been applied to their homes.

Attorney General Marshall said he was proud of his Consumer Protection Division for handling the case, and he accepted the award on the staff’s behalf. He made this observation: “This team truly buys in to the mission of serving Alabama consumers. I am humbled to receive this honor on their behalf.”

Consumer Research selected Attorney General Marshall as the award recipient because of the historical value of the settlement and the terms that were negotiated as part of the settlement.

Attorney General Marshall announced that the deadline in the settlement had been extended for former Terminix customers who experienced dramatic price increases and who possibly dropped their coverage due to the price increase. Former Terminix customers have until July 15, 2021, to file a claim. They can file a claim by going to www.terminixfund.com.

Sources: Consumer Research, AL.com and Alabama Attorney General’s Office

THE JUUL LITIGATION

JUUL – Litigation Update

Legal battles against JUUL Labs are heating up heading into the summer. The nation’s first trial to hold JUUL accountable for marketing their highly addictive e-cigarettes to youth is set to begin on June 7, 2021, in Durham, North Carolina. Additionally, JUUL Labs and tobacco-giant Altria face an administrative trial by the Federal Trade Commission in June 2021 related to the legality of Altria’s 2018 acquisition of a 35% stake in JUUL.

North Carolina Attorney General Josh Stein filed suit against JUUL in N.C. State Court in May 2019, accusing it of violating North Carolina’s Unfair and Deceptive Trade Practices Act, seeking to hold JUUL responsible for its role in creating the youth e-cigarette epidemic. Like in the federal MDL litigation, Attorney General Stein alleges JUUL unlawfully marketed to youth through its device design, advertising and social media and failed to ensure that online customers were over 18. The lawsuit also contends the company misrepresented how much nicotine is in its product, making it easier for people to get addicted.

Now, just days before the trial, JUUL was hit with sanctions for destroying evidence and ignoring court orders. Attorney General Stein demonstrated to the court that JUUL deleted “highly relevant” documents related to JUUL’s age verification system, a critical component of the claims against JUUL. The sanctions could cost JUUL millions and include a ruling by the Court that JUUL knowingly violated the Unfair or Deceptive Trade Practices Act.

The Federal Trade Commission trial against JUUL and Altria is slated for June as well. In April 2020, the FTC filed an administrative complaint alleging that Altria Group, Inc. and JUUL Labs, Inc. entered a series of agreements, including Altria’s acquisition of a 35% stake in JUUL, that eliminated competition in violation of federal antitrust laws. According to the complaint, this series of agreements involved Altria ceasing to compete in the U.S. market for closed-system electronic cigarettes (the relevant market) in return for a substantial ownership interest in JUUL, by far the dominant player in that market.

JUUL continues to face thousands of lawsuits from individuals alleging severe nicotine addiction and many other physical injuries. JUUL also faces hundreds of lawsuits from school districts, counties, and municipalities due to the public nuisance created by JUUL’s conduct. These cases are being litigated in a Multi-District Litigation in the Northern District of California, where the first bellwether trials will begin in February 2022.  Beasley Allen is honored to be part of the national team of lawyers holding JUUL accountable in the MDL.

Sources: The News & Observer and FTC.gov

The JUUL Litigation Team

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

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

THE TALC LITIGATION

Talc Litigation Update

Beasley Allen’s talc team remains hard at work in the MDL and state courts. The MDL team has finished up the plaintiff, fact witness, and expert depositions for the bellwether cases. The bellwether cases are a mix of plaintiff picks, defense picks and random selections from the court. The MDL has continued working on corporate liability discovery depositions with three depositions taken in April, an additional deposition planned for late May and other depositions scheduled for the next couple of months. A number of former and current Johnson & Johnson employees were identified and researched for this project.

Beasley Allen remains on track in the state courts to have a very busy trial schedule in 2021. In St. Clair County, Illinois, the Cadagin case trial is set for July 12 to start with preliminary hearings already underway. The multi-plaintiff trial in St. Louis, Missouri, involving three plaintiffs, remains set in August, with several additional potential trial dates in St. Louis throughout the rest of the year and into 2022.

In Philadelphia, the Kleiner case, initially set in 2020, remains on course to start July 29. The Beasley Allen team has several additional trial-ready dates in Philadelphia, with the Wilson case to be set within 90 days of May 5 and other settings possible throughout the year. In Georgia, the Brower retrial is still being reset, with plans to retry this case as soon as it can be safely scheduled in 2021. While working on getting the Brower retrial set, additional discovery efforts have continued against Johnson & Johnson’s longtime talc packager/manufacturer PTI, which has a large presence in Georgia and Missouri.

Along with multiple trials already set in Missouri, Illinois, and Pennsylvania for 2021 and the potential trial in Georgia in 2021, the team is now moving forward with the Carl and Balderrama trials in Atlantic City, with potential trial dates in Early 2022. The team is also exploring South Florida as a potential venue for additional trials in 2021 and 2022. It has been working on discovery efforts against various retailers of talcum powder throughout the states.

For additional information on these cases, contact Ted Meadows, Leigh O’Dell, or Brittany Scott at 800-898-2034 or by email at [email protected], [email protected], or [email protected]

Canadian Government Concludes That Talc May Be Harmful To Human Health

The Canadian government and its Chemical Management Plan (CMP), a governmental initiative with the goal of reducing risks posed by chemicals, announced on April 22, 2021, that it completed a final screening assessment of talc. Talc, also known as talcum powder, is a mineral used in many self-care products and has perhaps become most famous for its use in baby powder. The assessment stated that although it once believed most talc use was not a concern to human health, talc may be harmful to lungs when inhaling certain talc products. In addition, the assessment found that talc may also cause ovarian cancer when using certain self-care products containing talc in the female genital area, a common use for baby powder.

As a result of this assessment, the Canadian government is now proposing measures to help manage the risks of those who have or will be exposed to talc in certain products, such as natural health products, certain non-prescription drugs, and cosmetics. The Canadian government advises that these products require disclosure of all ingredients in its product labels and urges its public to check these product labels for ingredient information. Further, the CMP advises against using loose powders containing talc, specifically those that may be inhaled or used in genital areas.

As many as 2,200 cases of ovarian cancer diagnosed each year are linked to the regular use of talcum powder. Beasley Allen lawyers continue to actively investigate claims against Johnson & Johnson’s baby powder and Shower to Shower products. If you or a loved one has been diagnosed with ovarian cancer after using either of these products, call 800-898-2034 or email [email protected], [email protected], or [email protected].

Sources: https://www.canada.ca/en/health-canada/news/2021/04/government-of-canada-assessment-concludes-that-talc-may-be-harmful-to-human-health.html and https://www.canada.ca/en/health-canada/services/chemical-substances/chemicals-management-plan.html

Beasley Allen Talc Litigation Team

As stated above, there continues to be a great deal of activity involving the Talc litigation. The lawyers on our Talc Litigation Team have been very busy preparing for upcoming trials. Beasley Allen lawyers Ted Meadows and Leigh O’Dell head up the Beasley Allen Talc Litigation Team. The team handles claims of ovarian cancer linked to talcum powder use for feminine hygiene. Will Sutton and Charlie Stern are on the team, but they are exclusively handling mesothelioma claims. Will and Charlie are looking at cases of industrial, occupational, and secondary asbestos exposure resulting in lung cancer or mesothelioma and claims of asbestos-related talc products linked to mesothelioma.

Members of the Talc Litigation Team, in alphabetical order, include Kelli Alfreds ( [email protected]), Ryan Beattie ( [email protected]), Beau Darley ( [email protected]), David Dearing [email protected]), Liz Eiland ( [email protected]), Jennifer Emmel ( [email protected]), Jenna Fulk ( [email protected]), Lauren James ( [email protected]), James Lampkin ( [email protected]), Caty O’Quinn ( [email protected]),  Cristina Rodriguez ( [email protected]), Brittany Scott ( [email protected]), Charlie Stern ( [email protected]), Will Sutton [email protected]), Matt Teague ( [email protected]) and Margaret Thompson ( [email protected]).

OPIOID LITIGATION

An Update On The Opioid Litigation

Plaintiffs in the Opioid litigation have weathered delays caused by the pandemic and have started trying their cases against pharmaceutical industry defendants.  Due to the COVID-19 pandemic, the only opioid crisis litigation to go to trial up to this point was the State of Oklahoma’s case against Johnson & Johnson (J&J). The trial resulted in a $465 million verdict from the bench against J&J. However, the litigation picture is changing now, with multiple trials beginning in recent months.

In California, a trial in which Los Angeles, Orange and Santa Clara counties accuse J&J, Teva Pharmaceuticals and Allergan PLC of unleashing a devastating wave of drug dependence and death began on April 19.  Like the Oklahoma trial in 2019, the California case will be a bench trial.  In new fashion, however, all trial proceedings are being conducted remotely and live-streamed online.  The case is People of the State of California v. Purdue Pharma LP et al. (case number 2014-00725287) in the Superior Court of the State of California, County of Orange.

The first opioid-crisis trial to see federal court began in the U.S. District Court for the Southern District of West Virginia on May 3.  Cabell County and its largest city, Huntington, are looking to hold AmerisourceBergen Corp., Cardinal Health Inc., and McKesson Corp. responsible for an opioid epidemic in West Virginia communities.

Plaintiffs used opening statements to invoke an old problem-solving principle, “Occam’s razor,” to convey that the idea that the simplest explanation is usually the correct one.  Counsel for Cabell County, Paul T. Ferrell, Jr. said, that although the MDL has been called the “most complex and largest litigation in the history of the country,” it involves “the simple truth” that distributors sold “a mountain of pills” that led to the deaths of 1,100 people in Cabell County during the past decade.

On the other hand, lawyers for the three distributors painted a picture of the opioid crisis in which they were largely bystanders to the epidemic, placing blame on anyone from street gangs and cartels to the U.S. Drug Enforcement Administration. It became quite evident that the pharmaceutical companies’ defense in large part would be to throw Perdue Pharma “under the bus.”

The West Virginia communities show that prescription opioids have been a “gateway” leading Americans on deadly paths to heroin and illicit fentanyl.  The plaintiffs’ first expert witness, an addiction specialist, underscored this issue’s importance by discussing links between prescription and illicit opioids. The gateway concept could dramatically expand the legal liability of the three distributors.

Another expert witness for the plaintiffs used data compiled by the federal government to show that pharmaceutical distributors shipped nearly 128 million doses of prescription opioids to the county from 2006 to 2014 – or more than 140 per resident a year.

While the first week saw witnesses testifying about the devastation caused by the opioid epidemic, plaintiffs called defense witnesses during the second week. The plaintiffs sought to demonstrate the defendants’ contempt for West Virginians by offering internal communications from AmerisourceBergen.  One of those who wrote and circulated disparaging emails was Chris Zimmerman, the senior executive responsible for enforcing AmerisourceBergen’s legal obligation to halt opioid deliveries to pharmacies suspected of dispensing suspiciously large amounts of the drugs.

One email in 2011 included a rhyme built around “a poor mountaineer” named Jed who “barely kept his habit fed.”  According to the verse, “Jed” travels to Florida to buy “Hillbilly Heroin,” his nickname for Oxycontin. After Florida cracked down on pill mills in 2011, Zimmerman sent an email to colleagues. “Watch out Georgia and Alabama,” he wrote, “there will be a mass exodus of Pillbillies heading north.”

Zimmerman claims that if the company had stopped deliveries, it would have harmed patients who needed the drugs.  Interestingly, he said, “We’re a company, we’re not an enforcement agency, and we’re not a regulatory agency.”  Regarding the derogatory emails, Zimmerman claims they were simply a means of expressing frustration as the company worked to prevent opioids from falling into the wrong hands and said the company culture was of the “highest caliber.”

In 2017, AmerisourceBergen paid $16 million to settle legal action by West Virginia over opioid deliveries but did not admit wrongdoing.  The same year, McKesson paid a record $150 million fine after the DEA accused it of breaking the law.

This is the first case to go to a full trial since AmerisourceBergen, McKesson, and two other companies agreed to pay $260 million to settle another of the bellwether cases in Ohio two years ago.

The trial, previously delayed because of the pandemic, is before U.S. District Judge David Faber.  In January, the judge said that he expects the trial to go 12 weeks, concluding roughly around August 9.  Thus far, it doesn’t seem things are going very well for the defendants.

Also coming up in 2021, the State of Alabama’s case against Endo Health Solutions and McKesson Corp. has a trial set for November 1st.  Beasley Allen has joined Alabama Attorney General Steve Marshall in representing the State of Alabama.

Our firm is also working with Attorney General Chris Carr on behalf of the State of Georgia in its case against opioid manufacturers Endo, Actavis, Teva and Mallinckrodt and opioid distributors McKesson, Cardinal Health, AmerisourceBergen, and Smith Drug.  The State of Georgia’s trial is set for May 2022.

Several other states have opioid litigation trials scheduled for 2021, including New York, Washington, Ohio, and Alaska.

Sources: Law360.com, The Herald-Dispatch (Huntington, WV) and The Guardian

Universities Release Digital Archive Of Opioid Documents

The University of California-San Francisco (UCSF) and Johns Hopkins University have launched a considerable treasure trove of publicly disclosed documents from recent judgments, settlements, and ongoing lawsuits related to the nation’s opioid epidemic. The Opioid Industry Documents Archive includes emails, memos, presentations, sales reports, budgets, audit reports, Drug Enforcement Administration (DEA) briefings, meeting agendas and minutes, expert witness reports, and drug company executives’ depositions.

The archive is designed to provide much-needed transparency into the events and practices that led to the opioid epidemic. The timing is noteworthy, too. It comes as government litigation holding pharmaceutical manufacturers, distributors, and pharmacies accountable for creating and fueling the opioid crisis is heating up.

The searchable, digital archive will “promptly include new documents as they become available through resolution,” of dozens of lawsuits brought by state attorneys general as well as hundreds of lawsuits filed by cities, counties, and Native American tribes in a multidistrict litigation (MDL), the universities said.

Plaintiffs’ lawyers have been pushing for the documents’ release, but it wasn’t until last month that the schools revealed how the information would be made available. The archive, which is being developed in part by a panel of individuals who lost loved ones to the opioid epidemic, is free and accessible to the public.

UCSF and Johns Hopkins have also maintained an archive of documents from the tobacco litigation in the 1990s, which “facilitated efforts to reduce smoking and related diseases, saving millions of lives worldwide,” said Michael Steinman, a UCSF professor.

Caleb Alexander, MD, a professor of epidemiology and medicine at Johns Hopkins and the founding co-director of the Center for Drug Safety and Effectiveness, told MedPage Today:

The primary goal is to ensure that history never repeats itself.  And we can’t learn from past mistakes without understanding what those mistakes have been.

It should be noted that since 1999, more than a half-million people have died from prescription opioids like OxyContin and fentanyl or illicit ones such as heroin.

Sources: University of California-San Francisco, Johns Hopkins University, MedPage

The Beasley Allen Opioid Litigation Team

Our Opioid Litigation Team over the past several months has been very busy. As we stated in the last issue, activity in the Opioid Litigation had intensified nationally. There has been no slow down.

Lawyers in our firm’s Opioid Litigation Team continue to work on the national opioid MDL. Beasley Allen lawyers represent the State of Alabama, the State of Georgia, and numerous local governments and other entities and handle individual claims on behalf of victims in this litigation.

The team includes Rhon Jones, Parker Miller, Ken Wilson, David Diab, Rick Stratton, Will Sutton, Jeff Price, Gavin King, Tucker Osborne and Matt Griffith. This team of lawyers represents the State of Alabama, the State of Georgia, and numerous local governments and other entities, as well as individual claims on behalf of victims.

If you need more information on the Opioid Litigation, contact one of the lawyers on the team at 800-898-2034 or by email at Rhon.[email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected] or [email protected].

THE WHISTLEBLOWER LITIGATION

Incyte Corporation Agrees To Pay $12.6 Million To Settle Case Involving Kickbacks

Incyte, a Delaware pharmaceutical company, has agreed to pay $12.6 million to settle allegations that it violated the False claims Act (FCA) by paying kickbacks.  The Department of Justice alleged that Incyte used an independent foundation to induce Medicare and TRICARE patients to purchase the company’s drugs.  The government contends that from November 2011 through December 2014, Incyte used the nonprofit as a conduit to pay the copays for patients taking Jakafi, a drug approved in 2011 to treat myelofibrosis.

When a beneficiary obtains a prescription drug covered by Medicare or TRICARE, the beneficiary may be required to make a partial payment in the form of a copayment, coinsurance, or deductible (copays).  Under the Anti-Kickback Statute, a pharmaceutical company is prohibited from offering or paying, directly or indirectly, any remuneration to induce federal beneficiaries to purchase the company’s drugs.  This prohibition extends to the payment of patients’ copay obligations.

Incyte was the sole donor to a fund that opened in November 2011 to assist myelofibrosis patients, the justice department said. Pharmaceutical companies can donate to nonprofits offering copay assistance, but the nonprofits must act independently.  The government alleges that Incyte used the fund to pay copays of federal beneficiaries taking Jakafi who were ineligible for assistance from the fund because they didn’t have myelofibrosis.  Incyte managers pressured the foundation to provide economic assistance to these ineligible patients.  Incyte’s contractor helped ineligible patients complete applications submitted to the fund for assistance, causing false claims for Jakafi to be submitted to Medicare and TRICARE.

The settlement resolves part of a whistleblower lawsuit brought by an Incyte employee under the qui tam provisions of the FCA.  The FCA allows private individuals with knowledge of fraud against the government to bring a lawsuit on behalf of the government and to share in the recovery.  As part of the resolution with Incyte, the whistleblower will receive approximately $3.59 million of the money Incyte is returning to the government.

Source: Department of Justice News Release

Health Care Giant Agrees To $10 Million False Claims Settlement With DOJ

Hospital operator Dignity Health has agreed to pay the U.S. Department of Justice (DOJ) $10 million to settle claims that it broke federal law by billing the government for surgeries that were said to be conducted by world-class neurosurgeons but were instead performed by inexperienced and often unsupervised trainees.

At the center of the case, the hospital at the center of the case, Dignity Health-owned St. Joseph’s Hospital and Medical Center in Phoenix billed Medicare for “doubly and triply concurrent and overlapping surgeries” in connection with the scheme in violation of the False Claims Act (FCA), according to the DOJ. U.S. Attorney Glenn McCormick said in a statement:

We expect health care providers participating in Medicare to bill for their services accurately and honestly. Proper billing ensures fair compensation and protects Medicare dollars that are much needed for patient care.

California-based Dignity Health, one of the largest health care systems in the U.S., does business under the names of the hospitals it owns and operates, including St. Joseph’s.

As part of the settlement, the neurosurgery unit at St. Joseph’s — known publicly as the Barrow Neurological Institute — has entered into a five-year corporate integrity agreement addressing the relevant conduct with the U.S. Department of Health and Human Services Office of Inspector General.

The agreement requires that the institute maintain a compliance program, implement a risk assessment program, and hire an independent review organization to review its Medicare and Medicaid claims annually. An Arizona federal judge ordered the case unsealed to make way for the settlement, which the parties finalized in December.

The case was filed in March 2017 by Dr. Bruce P. Kingsley and joined by the United States government. Dr. Kingsley became familiar with the scheme through his work as an anesthesiologist and member of the general medical staff at St. Joseph’s. In the original complaint, Kingsley outlined a “surgical bait-and-switch” through which the hospital used the allure of its respected surgeons to attract patients for “complex and high-risk” procedures.

The complaint said the patients were led to believe the procedures would be “performed and supervised” by the experienced surgeons, only to have them performed by “young and inexperienced resident surgeons in training” with no oversight from the superiors. The scheme was perpetrated on multiple anesthetized patients simultaneously, allowing the experienced “teaching” surgeons to claim responsibility for multiple surgeries simultaneously, billing them through federal health care programs designed for such teaching surgeries.

Dignity Health has had False Claims Act troubles before. In 2014, the health care system agreed to pay $37 million to settle another whistleblower suit, that one alleging its hospitals overcharged Medicare and the U.S. military’s insurance system.

Dr. Kingsley was represented by Anne M. Kelts, Colin H. Murray, James J. Dries, Jennifer Ancona Semko, Laura Kelly and Mark L. Karasik of Baker McKenzie, Seth Patrick McGinnity of McGinnity Law PLC, Thomas Martin Connelly of the Law Offices of Thomas M. Connelly and Thomas Joseph Marlowe of the Law Offices of Thomas J. Marlowe.

Its own Diana Leticia Varela represented the U.S. government. The case is U.S. ex rel. Bruce P. Kingsley v. Dignity Health et al. (case number 2:17-cv-00692) in the U.S. District Court for the District of Arizona.

Source: Law360.com

Texas Pharmacy Services Company Settles Opioid Whistleblower Suit For $2.8 Million

A pharmacy services company has reached a $2.75 million settlement with the federal government to resolve a whistleblower lawsuit alleging that it allowed opioids and other controlled substances to be dispensed without a valid prescription over three years.

The May 5 agreement between AlixaRx LLC and the U.S. Department of Justice (DOJ), filed in the Northern District of Georgia, also ended claims that AlixaRx billed Medicare Part D for claims that had already been reimbursed through claims paid to long-term care facilities under Medicare Part A. Texas-based AlixaRx, which dispenses prescription drugs and runs Golden Gate National Senior Care LLC, operates in 30 states and has a hub as well as offices in the Atlanta area.

Emad Gharavi, a staff pharmacist for AlixaRx, filed the qui tam lawsuit in 2017, saying the company created false records and improperly billed the federal government for medications issued without a prescription. Gharavi also claimed AlixaRx falsified billing information to inflate prices and overcharged Medicare Part D from January 2014 through December 2017.

The federal government joined the lawsuit, which alleges AlixaRx violated the federal Controlled Substances Act in how it dispensed what the company described as “emergency prescriptions” of Schedule II drugs. Such drugs, such as opioid pain medications, require prescriptions from physicians, and refills aren’t legally permitted.

The Justice Department said that an investigation showed AlixaRx routinely abused the emergency prescription provisions of the law by requesting and obtaining verbal “emergency” refills from prescribers without an actual emergency. The company then used the fake emergencies for simple refills of medications and failed to get written prescriptions within seven days after the verbal authorization, prosecutors said.

Robert J. Murphy, special agent in charge of the U.S. Drug Enforcement Administration’s Atlanta Field Division, said in a statement that handling prescription narcotics in the way AlixaRx did allows for the drugs to be sold on the black market. Murphy said:

AlixaRx, LLC spun a web of deception when it engaged in unlawful dispensing practices by abusing the emergency prescription provisions of the Controlled Substance Act.

The company also engaged in a national scheme to hide the violations by getting backdated prescriptions from the prescribing physicians, in many cases more than a year after the controlled substances were dispensed, according to the lawsuit. Chris Hacker, special agent in charge of FBI Atlanta, said in a statement:

This resolution sends a message that there are rules to be followed when dispensing controlled substances.

Assistant U.S. Attorney David A. O’Neal represents the U.S. Emad Gharavi is represented by Nola J. Hitchcock Cross of the Cross Law Firm SC and Julie K. Bracker of Bracker & Marcus LLC. The case is United States ex rel. Gharavi v. AlixaRx LLC et al. (case number 1:17-CV-00455) in the U.S. District Court for the Northern District of Georgia.

Source: Law360.com

The Beasley Allen Whistleblower Litigation Team

There has been no slowdown in the False Claims Act (FCA) litigation. Lawyers on Beasley Allen’s Whistleblower Litigation Team continue to be very busy handling cases around the country under the FCA. Fraud against the federal government by all too many industries in this country, especially in the health care field, remains a huge problem. During the pandemic, fraud against the federal government has increased dramatically. The combination of the national mishandling of the coronavirus pandemic by the Trump Administration and corporate greed have combined to be a significant factor in the increase in the FCA violations.

We continue to stress that whistleblowers are essential and the key to exposing corporate wrongdoing and government fraud. Their role has intensified dramatically and will continue in that direction in the immediate future and beyond. A person who has first-hand knowledge of fraud or other wrongdoing may have a whistleblower case. Before you report suspected fraud or other wrongdoing – before you “blow the whistle” – it is essential to make sure you have a valid claim and that you prepare for what lies ahead. The experienced group of lawyers on our team is dedicated to handling whistleblower cases.

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

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

PRODUCT LIABILITY UPDATE

Ford Motor Company And Enterprise Leasing Named In Interstate Crash That Killed Georgia Woman

Chris Glover, the lawyer who manages our firm’s Atlanta office, has filed a lawsuit on behalf of Tracy Ladd, widower of Jyotika Ladd, against Ford Motor Company and Enterprise Leasing Company. Mrs. Ladd was a passenger in a 2018 Ford Fiesta rented from Enterprise and driven by Heena Kampani when the vehicle malfunctioned, forcing Mrs. Kampani to pull the car onto the shoulder of Interstate 85. The Ford Fiesta was then struck by another vehicle, resulting in Mrs. Ladd’s death. Chris had this to say:

The series of events that led to this tragic accident could have been prevented, and Mrs. Ladd’s life spared had the defendants acted responsibly. Instead, Ford Motor Company knowingly manufactured and sold a vehicle that was defective and unreasonably safe. Enterprise negligently rented the Ford Fiesta without warning Mrs. Kampani and Mrs. Ladd of the possible defect. The already dangerous circumstances were intensified by Mr. Knox’s inattention that resulted in his crashing into the Ford Fiesta.

The tragic crash occurred on April 26, 2019. Mrs. Kampani and Mrs. Ladd were traveling southbound on I-85 in the Ford Fiesta they had rented from Enterprise when the vehicle started shaking and stalling. Mrs. Kampani pulled the car over to the left-hand shoulder next to a concrete divider, just as the vehicle lost power. The car’s rear was still partially protruding into the far left-hand lane of the interstate when it came to a stop.

Mrs. Kampani exited the vehicle. Then, Mrs. Ladd removed her seatbelt so she could maneuver herself over the gearshift and leave the vehicle on the driver’s side as well. That’s when Mr. Knox, traveling southbound on I-85 in a 2016 Chevrolet Impala, struck the Ford Fiesta. The impact forced the Ford to crash into the concrete divider. Mrs. Ladd was caught in the impact and suffered shock and severe physical injury, resulting in her death.

Information that Chris and Beasley Allen investigators obtained during this investigation revealed that the vehicle’s shaking was caused by the drive axle—which supplies power to the front-wheel-drive of the car—coming out of its housing. Ford designed and manufactured the Ford Fiesta knowing that the drive axle was subject to failure and could lose power on the road, yet the company still placed the vehicles into the stream of commerce. Ford’s conduct constitutes a willful, reckless, and wanton disregard for life.

The lawsuit was filed in the State Court of Clayton County, Georgia. If you have any questions, contact Chris Glover at 800-898-2034 or by email at [email protected].

Peloton Recalls All Treadmills After A Child’s Death And 70 Injuries

After putting up a fight to resist a recall, Peloton has now recalled its Tread+ and Tread treadmills. The company was forced to admit it was wrong to fight the Consumer Product Safety Commission’s request to recall the products. About 125,000 treadmills are included in the recall, which was announced on May 5. The CPSC said that there had been one child death and 70 other injuries tied to the treadmills. But when the federal safety agency warned about the dangers last month, Peloton took the unusual step of refusing to recall them and denying that the treadmills were unsafe. That was a bad decision that can’t be justified. Peloton CEO John Foley said in a statement:

I want to be clear, Peloton made a mistake in our initial response to the CPSC’s request. We should have engaged more productively with them from the outset. For that, I apologize.

In a statement, CPSC’s acting chairman Robert Adler said that the recall announcement was the “result of weeks of intense negotiation and effort, culminating in a cooperative agreement that I believe serves the best interests of Peloton and consumers.” The recall covers the $4,295 Tread+ and Peloton’s cheaper Tread, which costs $2,495. The cheaper machine hasn’t yet been released in the United States. Peloton has pulled both machines off its website.

The reversal comes more than two weeks after the CPSC issued an “urgent warning” for users of the machine. At the time, the agency said it was aware of accidents involving the treadmill, including “multiple reports of children becoming entrapped, pinned, and pulled under” the device.

The CPSC released a video showing a small child playing with a powered-on treadmill while it lifts off the ground and the child becomes pinned under it. The agency released details of other incidents, including a child being injured when an adult was using it and “pets and objects” also being sucked beneath the treadmill suggesting “possible harm to the user if the user loses balance as a result.”

Peloton refuted the CPSC agency, saying at the time the agency’s warning was “inaccurate and misleading.” Foley now says Peloton will work with the CPSC to “set new industry safety standards for treadmills.” We will see how things play out for the consumers who trusted Peloton. I am not sure Peloton leading the way on safety is such a good idea.

Consumer Reports had said the recall was “welcome news” but made it clear that the delay in the recall left customers in danger. William Wallace, Consumer Reports’ manager of safety policy, in a release, said:

The CPSC took a strong and principled stance for safety, and clearly that’s what made Peloton come to the table and agree to offer a full refund. It shouldn’t have required so much time and effort to get this product recalled.

The nonprofit consumer watchdog group initially called Peloton’s response, or lack thereof, “outrageous.” The company should have recalled the treatments when it learned that a child had been pulled under one of the machines and died. Instead, Peloton pushed back against the safety commission, saying the warning was “inaccurate and misleading” and that there was no reason to stop using the machines.

Connecticut Senator Richard Blumenthal, who is chair of the Consumer Safety Committee, said that the recall was dangerously delayed. Sen. Blumenthal said that “Peloton unacceptably put consumers at risk.” He added that he would work to strengthen the CPSC so that “companies like Peloton no longer get to call the shots on consumer safety.” That’s something that is long overdue.

Under current laws, the Consumer Product Safety Commission has to negotiate with companies to release warnings about a product’s hazards. Peloton is best known for its stationary bikes, but it introduced treadmills about three years ago. Sales of its equipment have soared during the pandemic as virus-wary people have avoided gyms and worked out at home. In the last three months of 2020, the company brought in $1 billion in revenue, more than double what it made the year before.

In summary, Peloton now says it received 72 reports of adults, children, pets, or other items, such as exercise balls, being pulled under the rear of the treadmill. Of those reports, 29 were of children who suffered injuries, including broken bones and cuts. Tragically, one child, who was 6 years old, died.

Joseph Martyak, a spokesman at the CPSC, said the agency is still testing the treadmills. Yet, it appears the design of the Peloton Tread+, including its belt and its height off the floor, could make it more likely to pull people, pets and items under the machine than other brands of treadmills.

Sources: CNN and AP

Georgia Appeals Court Says GM CEO Can Be Deposed Over Fatal Crash

The Georgia Court of Appeals has ruled that General Motors CEO Mary Barra can be deposed in a lawsuit against the company over an alleged vehicle defect that caused a Georgia woman’s fatal crash.

The court affirmed a state trial court’s denial of a protective order requested by General Motors LLC to shield Barra from giving testimony in the case brought by plaintiff Robert Buchanan. His wife died after crashing her 2007 Chevy Trailblazer in November 2014. The crash was said to have been caused by the failure of the vehicle’s electronic stability control system.

A three-judge appellate panel rejected GM’s bid for it to apply the “apex doctrine” framework used by some courts to determine whether the deposition of a high-ranking corporate executive is proper. The panel said there is evidence to support the trial court’s conclusion that the information Buchanan seeks from the CEO is relevant and could lead to the discovery of admissible evidence.

Both the trial and appellate courts held that the plaintiff’s deposition request was reasonably calculated, given Barra’s previous public statements and testimony before the U.S. Congress about GM’s safety culture and commitment to fix known defects and be accountable for them. The appeals court panel also considered the following:

Barra said in 2014, just months before Glenda Marie Buchanan crashed her Trailblazer in Georgia, that she would stand with her new vice president of global vehicle safety to quickly identify and resolve any product safety issues and that she would review all future death inquiries in GM vehicle crashes.

The CEO also instituted in 2014 GM’s “Speak Up For Safety” program to encourage and recognize employees for contributing ideas to make GM vehicles safer, and for speaking up when they see something that could affect customer safety.

Lance Cooper of the Cooper firm and Darren Summerville of The Summerville Firm LLC represent the plaintiff. Summerville told Law360 that the plaintiff team is pleased with the opinion and that repeated calls over the years for Georgia courts to adopt the apex doctrine have been unnecessary and one-sided. He stated:

Ms. Barra’s prior testimony before Congress and other public statements give us great confidence that she has knowledge relevant to the product defect at issue here and about General Motors’ response to that problem. More importantly the case reaffirms Georgia’s long-standing rules as to the breadth of discovery, regardless of witness (or party) status or title.

Unless GM appeals, the case will now proceed with Barra’s deposition and continued discovery. The trial court ordered Barra’s deposition to be held in Detroit, where the auto giant is headquartered and limited to three hours, excluding time for objections.

The case was stayed pending GM’s appeal. Amicus briefs in support of GM’s bid to protect Barra from deposition were filed in the case by the U.S. and Georgia chambers of commerce, three national manufacturing organizations and the American Tort Reform Association. An Alabama-based group representing harmed vehicle consumers filed an amicus brief in support of Buchanan’s deposition request. Our law firm also filed an amicus brief in support of the deposition request.

Plaintiff Buchanan is represented by Lance Cooper of The Cooper Firm and Darren Summerville and Anna Green Cross of The Summerville Firm LLC.

The cases are General Motors LLC v. Buchanan (case number A21A0043) in the Georgia Court of Appeals and Buchanan v. General Motors LLC (case number 16-A-1280) in the State Court of Cobb County, Georgia.

Source: Law360.com

Kidde Recalls More Than 200,000 Smoke Alarms Over Failure To Warn Of Fire

Kidde voluntarily recalled about 226,000 smoke alarms and combination smoke and carbon monoxide alarms over concerns that they can fail to alert users to a fire. The company and the U.S. Consumer Product Safety Commission (CPSC) identified seven affected models on May 6, advising that customers with those units contact Kidde for a free replacement alarm. The recalled models are Kidde Model Series 2040, 2050, 2060 and 2070 smoke and combination smoke/carbon monoxide alarms. The alarms were primarily sold at Walmart, The Home Depot, Amazon.com and Menards from May 2019 through September 2020. According to Kidde’s website, many recalled units will have the TruSense logo or “AMBER=FAULT” printed on the front.

The seven recalled alarm models sold for between $10 and $70. “Consumers should immediately contact Kidde for a free replacement alarm,” the notice states. “Consumers should keep using the recalled alarms until they install replacement alarms.”

The recalled units are Kidde Model Series 2040, 2050, 2060 and 2070 Smoke and Combination Smoke/Carbon Monoxide alarms. Only alarms with the TruSense logo or “AMBER=FAULT” printed on the front of the alarm are included in this recall. The model number is printed on the back of the alarm. Kidde has a guide on how to identify the affected models and to complete the recall at kiddetsalarmrecall.rsvpcomm.com. To submit a claim, you’ll need to upload two photos for each alarm in its installed location, but the guide urges not to remove the alarm until your replacement arrives.

According to the PDF version of the guide, replacement alarms should “arrive within three business days once the submission is completed in full.” For questions, consumers can call Kidde toll-free at 844-796-9972 from 8 a.m. to 8 p.m. ET Monday through Friday and 9 a.m. to 3 p.m. ET on Saturday. Learn more online at kiddetsalarmrecall.rsvpcomm.com or kidde.com.

No injuries or incidents related to the alarms have been reported so far, according to the Consumer Product Safety Commission website. Consumers with the affected models can contact Kidde about registering for a replacement online or at 844-796-9972 from 8 a.m. to 8 p.m. ET Monday through Friday and 9 a.m. to 3 p.m. ET on Saturday.

CPSC Warns Consumers To Stop Use Of Three Models Of Adult Portable Bed Rails

The U.S. Consumer Product Safety Commission (CPSC) has warned consumers to immediately stop using three models of adult portable bed rails manufactured by Bed Handles, Inc. These models (AJ1, BA10W, and BA11W) can create an entrapment hazard and pose a risk of asphyxia to users.

It should be noted that because the manufacturer of these bed rails is no longer in business, the company cannot offer a remedy. The CPSC says consumers should immediately stop using and dispose of the products.

CPSC evaluated the bed rails and found that they can allow an individual to become entrapped between the bed rail and mattress or within the portions of the bed rail itself, leading to asphyxia.  These bed rails have been sold online at Walmart.com, MedontheGo.com, soymedical.com, bpimedicalsupply.com, sonomasurgical.com, and other online retailers for around $80 to $100. The products have also been found for sale on secondary sites, such as eBay.com. The model number can be found on a white label located on the bottom of the handle.

The CPSC announced a recall of a previous version of the bed rails in 2014 and 2015 due to an entrapment hazard. These bed rails, manufactured between 1994 and 2007, were sold without retention straps. Four people died after becoming entrapped in the bed rail; all four victims were elderly or disabled. Since 2007, the bed rails have been sold with retention straps, but CPSC has found that the straps do not adequately protect consumers. CPSC urges consumers to stop using these bed rails and report any related incidents to the agency at www.SaferProducts.gov.

Source: CPSC

Three Plaintiffs Awarded $2.1 Million in First 3M Earplug MDL Bellwether

The first bellwether trial for the 3M Earplug MDL ended with the jury awarding a $7.1 million verdict. Each of the three plaintiffs, all U.S. military veterans, were awarded $2.1 million in punitive damages for the preventable and irreparable hearing loss caused by 3M’s Combat Arms Earplugs Version 2 (CAEv2s). Each plaintiff was also awarded additional money for related effects, including pain and suffering, medical costs and lost earnings.

The plaintiffs are part of the largest MDL in U.S. history and allege that the 3M CAEv2s failed to protect against tinnitus and hearing loss. They also say that the earplugs didn’t come with complete and honest warnings and that 3M knowing sold the defective product to the U.S. Department of Defense (DoD), which provided the earplugs to members of the military. Plaintiffs’ hearing was measured through military-issued audiograms and supported their argument that they were injured during military training and service. Stephen Hacker is a 20-year Army veteran who started experiencing bilateral tinnitus in 2006. Luke Estes was a tank platoon leader at Fort Benning, Georgia, and testified that he began to lose hearing and developed ringing in both ears in 2014. Lewis Keefer is an Army medic and said he used the earplugs while stationed at Fort Benning and serving in Iraq. He testified that he is starting to lose his hearing gradually.

The first bellwether trial began on March 29 and was completed in five weeks. During the trial, U.S. District Judge M. Casey Rodgers, who is overseeing the MDL, also denied several motions for mistrial by 3M. The company says it will appeal.

At least two other bellwether trials have been planned for the MDL. The second bellwether trial began May 17, and a third trial is slated to begin June 7. There are approximately 240,000 total claims in the MDL.

The case is In re: 3M Combat Arms Earplug Products Liability Litigation (case number 3:19-md-02885) in the U.S. District Court for the Northern District of Florida. The service members and veterans are represented by a team led by Christopher Seeger of Seeger Weiss LLP, Bryan Aylstock of Aylstock Witkin Kreis & Overholtz and Shelley Hutson of Clark Love & Hutson.

Sources: Law360, Reuters and Pensacola News Journal

AN UPDATE ON MOTOR VEHICLE LITIGATION

Vehicle Cybersecurity

Advanced driver assistance technologies depend on an array of electronics, sensors, and computer systems.  In advancing these features and exploring the safety benefits of these new vehicle technologies, the National Highway Traffic Safety Administration (NHTSA) is focused on solid cybersecurity to ensure these systems work as intended and are built to mitigate safety risks.

What Is Vehicle Cybersecurity?

Today, cybersecurity affects each one of us on a multitude of levels.  Our professional work, personal lives—even our vehicles—depend on connectivity and technology that runs on complex software. As information technology becomes increasingly integral to our daily lives, our dependency on subsequent information systems grows.  In turn, we experience an increase in vulnerabilities and potential attacks against those systems.  Cybersecurity rose out of necessity to protect these systems and the information contained within them.  As applied to vehicles, cybersecurity takes on an even more critical role: systems and components that govern safety must be protected from harmful attacks, unauthorized access, damage, or anything else that might interfere with safety functions.

Increasingly, today’s vehicles feature driver assistance technologies, such as forward collision warning, automatic emergency braking, and vehicle safety communications.  In the future, the deployment of driver assistance technologies may result in helping avoid crashes altogether, particularly crashes attributed to human drivers’ choices.  Given the potential safety benefits, these innovations enable, NHTSA is exploring the full spectrum of its tools and resources to ensure these technologies are deployed safely, expeditiously, and effectively, taking steps to address the challenges they pose, including cybersecurity.

To ensure a comprehensive cybersecurity environment, NHTSA has adopted a multi-faceted research approach that leverages the  National Institute of Standards and Technology Cybersecurity Framework and encourages industry to adopt practices that improve the cybersecurity posture of their vehicles in the United States.  NHTSA’s goal is to collaborate with the automotive industry to proactively address vehicle cybersecurity challenges and continuously seek methods to mitigate associated safety risks.

Cybersecurity Protection Methods

NHTSA promotes a multi-layered approach to cybersecurity by focusing on a vehicle’s entry points, both wireless and wired, which could be potentially vulnerable to a cyberattack.  A layered approach to vehicle cybersecurity reduces the possibility of a successful vehicle cyber-attack and mitigates the potential consequences of a successful intrusion.  A comprehensive and systematic approach to developing layered cybersecurity protections for vehicles includes the following:

  • A risk-based prioritized identification and protection process for safety-critical vehicle control systems;
  • Timely detection and rapid response to potential vehicle cybersecurity incidents on America’s roads;
  • Architectures, methods, and measures that design cyber resiliency and facilitate rapid recovery from incidents when they occur; and
  • Methods for effective intelligence and information sharing across the industry to facilitate quick adoption of industry-wide lessons learned. NHTSA encouraged the formation of Auto-ISAC, an industry environment emphasizing cybersecurity awareness and collaboration across the automotive industry.

Current Research

The field of vehicle cybersecurity is exciting and new!  Follow along with NHTSA’s current research projects as it continues to contribute to this evolving field.

  • Anomaly-based intrusion detection systems research: Researching metrics and objective test methods to assess effectiveness of such solutions.
  • Cybersecurity of firmware updates: Researching cybersecurity of automotive electronics update mechanisms through physical and over-the-air means.
  • Cybersecurity considerations for heavy vehicles: Researching similarities and differences between passenger cars and larger vehicles from a cybersecurity considerations standpoint.
  • Research on reference parser development for V2V communication interfaces: Developing a formally verified and mathematically proven message parser for V2V communication interfaces.
  • In-house cybersecurity research at the Vehicle Research and Test Center (VRTC) in East Liberty, Ohio: This research explores the cybersecurity risks of today’s vehicle electronic architectures and aims to establish principles and guidance that could improve the cybersecurity posture of passenger vehicles through applied research.

NHTSA is dedicated to advancing the lifesaving potential of vehicle technologies

The need for robust automotive cybersecurity corresponds with the rapid advances in-vehicle technology.  NHTSA’s ultimate goal is to save lives, prevent injuries, and reduce the economic costs of vehicle crashes.  This goal is potentially achieved by implementing driver assistance technologies, and cybersecurity goes hand-in-hand with this process.

NHTSA regularly collaborates with other government agencies, vehicle manufacturers, suppliers, and the public to further the industry’s efforts in addressing vehicle cybersecurity challenges.  This strategy aims to promote the impact of the various safety applications employed in current vehicles and those envisioned for future vehicles that may feature more advanced forms of automation and connectivity. NHTSA’s approach to vehicle cybersecurity has the following goals:

  • Expand and share the automotive cybersecurity knowledge base to better establish comprehensive research plans and develop enabling tools for applied research in this area;
  • Support the automotive industry in implementing effective, industry-based best practices and voluntary standards for cybersecurity and participate in cybersecurity information-sharing forums;
  • Foster the development of new system solutions for automotive cybersecurity; and
  • Determine the feasibility of developing performance evaluation methods for automotive cybersecurity.

If you have any questions or need more information, contact Graham Esdale, a lawyer in our firm’s Personal Injury & Products Liability Section, at 800-898-2034 or by email at [email protected].

Source: NHTSA

Heavy Truck Tire Retreading Industry

Tire Retreading is a process where worn tires, called “casings,” receive a new tread.  The worn tread is buffed away and a new tread bonded to the tire body in a process very similar to the manufacture of a new tire.  There are different processing techniques, but the ultimate objective is always the same – affixing a new tread through the application of heat, time and pressure. Tire retreading is an industry separate and apart from what one thinks of as the normal tire manufacturers.  Tire retreading has been around since the early 1900s and has grown steadily. Today, in North America, there are as many retreaded tires in operation as there are original tread life tires.

The use of these retreaded tires is a big part of the heavy truck industry because of the cost savings to the trucking companies. Many trucking fleets plan their new tire purchases intending to have their worn casings treaded two or more times as part of their tire budgets. Retreading truck tires saves the trucking industry over $3,000,000,000 each year.  Retreaded tires are such a good value to the trucking industry because most of the manufacturing costs of a new tire are in the tire body or casing.  The tread (the portion of the tire that meets the road) represents only a percentage of the new tire cost.  Today’s steel radial commercial truck tires are an industrial product designed to provide multiple tread lives over the life of the tire casing.  ( www.Rabentire.com  “Fleet Retreading” Website).

But, just as with new tires manufactured in tire plants, retreaded tires also have hidden dangers and suffer from design and manufacturing defects of the original tire carcass. Beasley Allen lawyers have handled cases involving heavy trucks that were using retreaded tires. In one such case, the occupant of the heavy truck was severely injured when one of his retreaded tires suffered a tread separation failure.  As a result of this tread separation, he lost control of the truck and crashed. Just because a tire is retreaded does not mean that it cannot suffer a premature failure from defects in the original tire carcass.

Retread tires can fail prematurely from steel belt anomalies or a thin inner liner gauge in the original tire carcass. In addition to the steel belt anomalies and thin inner gauge, retread tires may also have problems that occur from inadequate bonding of the component treads through the vulcanizing process during the retread process.

Another disturbing trend in the heavy truck tire industry is that many retreadable tires are imported from foreign countries. The tire failure mentioned above was manufactured by a foreign company and imported by a U.S. business.  Under federal law, the importer stands in the shoes of the foreign manufacturer. The National Traffic and Motor Vehicle Safety Act, 49 U.S.C. Chapter 301 deems an importer of motor vehicles or motor vehicle equipment, including tires, as a “manufacturer” of the imported product.

The NHTSA makes importers of foreign products directly responsible for the safety of the products they bring into the United States. The importers have the same duties as manufacturers, including testing and quality control. These numerous duties imposed upon importers under federal law include, among other duties, the following:

  • assuring quality control;
  • monitoring production outputs;
  • sampling, inspection, and testing products; and
  • post-production quality control.

Sadly, importers of tires often fail to follow NHTSA’s recommended practices for importers in safety regulations even though these practices were designed to protect the U.S. consumer from importing defectively designed products.

Beasley Allen lawyer, Ben Baker, has focused much of his career on auto product liability and crashworthiness cases.  If you have a tire case that we could assist you with, reach out to Ben Baker at 800-898-2304 or by email at [email protected].

Car Seat Manufacturer Sued for Wrongful Death of Young Child Due to Claims of Defective Booster Seat

The family of a child killed in a car accident due to a defect in his car seat has filed a civil lawsuit against Britax Child Safety, one of the country’s top manufacturers of car seats for children. The family alleges the child’s seat was not crashworthy in its design and manufacture. Christine Spagnoli of Greene Broillet & Wheeler, LLP, who is serving as co-counsel for the plaintiff, stated:

Last year, a Congressional investigation revealed that top booster seat manufacturers knowingly misled consumers on car seat safety, and this case is another example of child seats not measuring up to the manufacturer’s promises. Unfortunately, many child car seat manufacturers are more interested in over-selling the safety of their products rather than doing adequate testing to make sure that their products are safe for children, which endangers the lives of millions of children.

On the early morning of November 13, 2019, 4-year-old Dominic Little was traveling down a Hagerstown Maryland road with his aunt and cousin when their vehicle was involved in a car crash. At the time of the collision, the child was properly secured in a Britax Frontier Clicktight XE car seat.  A defect in the car seat resulted in a structural failure during the crash, causing the child to sustain catastrophic injuries. The child died three days later as a result of the injuries he suffered in the collision.

It was alleged in the complaint that the Britax Frontier Clicktight XE car seat design was inadequate to protect child occupants during foreseeable collisions. It states that the seat lacked reasonable crashworthiness protection for child occupants restrained by the internal harness system. The plaintiffs also claim that the manufacturer knew or should have known because of design, analysis, and testing that the child’s seat design would fail to provide reasonable occupant protection in frontal impact crashes.

Britax marketed the Frontier ClickTight XE as a high-end booster seat that had a better-than-average crash test score. According to the manufacturer’s website, it was the highest-scoring seat with a five-point harness. This feature made the car seat a top pick and a good option for families looking to keep children in a harness for longer.

Consumer Reports published an article in 2018 detailing some of their findings during crash testing of a category of car seats known as Combination Seats. These are forward-facing only car seats with a five-point harness that can also be used as a booster seat utilizing the vehicle’s seat belt. Consumer Reports crash evaluations for the Britax Frontier ClickTight XE found that the structural damage was severe enough that the harness “pulled through” the seat completely, allowing the harness to loosen in one test conducted with a 78-pound dummy, which simulates an average 10-year-old child.

In 2019, Britax Child Safety retired the Frontier ClickTight XE car seat, replacing it with a different, newer model.

The plaintiffs’ legal team includes Christine Spagnoli of the law firm Greene Broillet & Wheeler, LLP; Troy Rafferty of Levin, Papantonio Rafferty, and Andrew Serafini, Jr. of Poole Law Group.

Source: PR Newswire

AVIATION LITIGATION

Proper Aircraft Maintenance Key To Preventing, Discovering Dangerous Defects

Improper or negligent aircraft maintenance all too often is the source of fatal aviation crashes. Failure to properly inspect and perform aircraft maintenance can keep technicians and others from preventing and detecting problems with the aircraft.

The National Transportation Safety Board (NTSB) recently released findings of one such tragedy in Iowa in November 2018. It was the state’s deadliest aviation accident in over a decade. A pilot and three passengers departed Le Mars Municipal Airport for a hunting trip, local news agencies reported. Their Piper PA28 never made it to the intended destination.

Initially, investigators believed the pilot suffered a heart attack based on transmissions to air traffic control. A passenger who was a student pilot explained the emergency to air traffic control, requested an immediate landing and said that he would attempt to land the plane. Yet, the plane never made it to the diversion airport. According to the Des Moines Register, the shattered remains of the aircraft and its passengers were found more than 13 hours later by a resident in a cattle field.

Toxicology reports revealed high levels of carbon monoxide in each of the passenger’s systems. Federal investigators confirmed that a cracked muffler allowed exhaust gasses to fill the cabin, poisoning all passengers and likely rendering them unconscious. The crash victims’ families sued Ultra Flight L.L.C, an aviation maintenance facility and its owner, Tom Mullaly, for improper maintenance.

Mike Andrews, a lawyer in the firm’s Personal Injury & Product Liability Section, handles much of our aviation litigation. He represents the widow of a pilot who suffered from an aviation disaster similar to the one described above.

In 2015, Michael Moir was a commercial pilot killed during a personal, cross-country flight after his oxygen supply was rapidly depleted, leaving him unconscious. Mr. Moir took off from Gaylord Regional Airport in Gaylord, Michigan, headed to Atlantic City, New Jersey. The NTSB investigators said that approximately 16 minutes into the flight, Moir read back the assigned altitude instructions from an air traffic controller. That was his last response during the flight. The aircraft was equipped with autopilot, and radar data showed that it remained at the altitude Moir had set before his last communication with air traffic control until approaching its destination.

Approximately five miles northwest of the intended destination, the aircraft began descending until it impacted the Atlantic Ocean. The U.S. Coast Guard recovered Mr. Moir and the aircraft days later and found Mr. Moir wearing the oxygen mask connected to the aircraft’s oxygen system. A post-crash inspection revealed the oxygen system was configured incorrectly and allowed Dr. Moir’s oxygen to escape the canister rapidly, causing him to suffer hypoxia and ultimately lose consciousness. The aircraft was set on autopilot, and its unconscious pilot traveled across the country until it crashed.

Mike continues representing Mrs. Moir. He also is investigating other aircraft crashes potentially involving similar issues. Mike focuses much of his practice on aviation litigation. He is the lead lawyer for Beasley Allen in all aviation litigation handled by the firm, including our involvement in the Boeing litigation.

Mike has written a book on litigating aviation cases to assist other aviation accident lawyers, “Aviation Litigation & Accident Investigation.” This book offers an overview to the practitioner of the complexities of aviation crash investigation and litigation.

If you would like to have more information on aviation litigation, including any aspect of the ongoing Boeing litigation, contact Mike at 800-898-2034 or by email at [email protected].

Sources: KCCI/CBS Des Moines and Des Moines Register

PREMISES LIABILITY LITIGATION

Negligent Security: Beasley Allen Atlanta Investigating Texaco Homicide Of Young Father

Atlanta has continuously found itself in the national spotlight over the past year due to the city’s surge in violent crime.  The Beasley Allen Atlanta office is uniquely positioned to help victims and their families that have suffered due to such violence.  Upon examining where these crimes are taking place, gun violence incidents are prevalent at gas stations in and around the City of Atlanta.  When such incidents repeatedly occur over time, the issue of negligent security must be examined.  In a negligent security case, it must be proven that the property owner/operator knew of similar incidents occurring on the property in question, and despite having that knowledge, failed to take the necessary measures to prevent such incidents from occurring in the future.

Donovan Potter Sr., a member of our Atlanta team, is investigating an incident in which negligent security factors in considerably. On February 1, 2021, a young man was shot and killed at a Texaco gas station on Sylvan Road in southwest Atlanta.  While the victim was standing outside of his vehicle pumping gas, the suspect approached the vehicle and appeared to open the front passenger door briefly.  When the victim noticed the suspect and confronted him, the suspect shot him.  In the aftermath of the incident, the victim was transported to Grady Memorial Hospital, where he died from his injuries, and the suspect was arrested two months later.

The subject gas station is known as a hotbed for criminal activity, and particularly, has been the site of multiple homicides in the past.  Therefore, the issue of negligent security comes to the forefront of this investigation since the property owner/operator should have known that additional security measures would be necessary to ensure the safety of the gas station’s customers. Donovan had this to say:

Beasley Allen will do everything in our power to hold the entities responsible for the death of our client. Holding those accountable for the safety of their customers, where multiple violent crimes have occurred and continue to occur, will hopefully ensure that fewer families are impacted by violent incidents resulting in the deaths of loved ones.

Donovan D. Potter Sr. and Parker Miller of our Atlanta Office are the lead Beasley Allen lawyers handling premises liability cases. If you or a loved one was seriously injured due to a criminal act, or if you have any questions about these cases, contact Parker or Donovan at 800-898-2034 or by email at [email protected] or [email protected].

WORKPLACE HAZARDS

Mining Accidents Are A Major Problem In America

Mining has been an established industry in this country since the late 1700s.  Unfortunately for miners, however, a job in the industry is very dangerous.  We have all repeatedly seen mining accidents and recovery efforts play out on the news.  Whether underground or surface mining, miners must deal with working in environments that expose them to hazards such as collapsing structures, falling debris, elevated heights, extended depths and heavy machinery.  Because mining is so dangerous, the industry is heavily regulated.  While the Occupational Safety and Health Administration (OSHA) is dedicated to workplaces spanning a vastly wide range, the mining industry is specifically regulated by the Mine Safety and Health Administration (MSHA).  MSHA works to reduce injuries, illnesses and death through vigorous enforcement, education, training and technical support to the mining industry.

Kendall Dunson, a lawyer in our Personal Injury & Products Liability Section, is in the early stages of investigating a death that occurred last July in a mine in North Georgia.  Kendal represents the family of a worker killed on just his third day of employment at this particular mine.  Our victim was working underground using a truck outfitted with a boom life and personnel basket.  He was working with a more experienced miner, preparing the ceiling for blasting.  While maneuvering the basket to place nitrate fuel into the drill holes in the ceiling, the machine malfunctioned and moved uncontrolled towards the ceiling.  The workers ducked down into the basket just before it made contact with the ceiling.  When the basket made contact with the ceiling, the hand railing of the basket crushed, pinning our victim between the front and rear railing.  The more experienced worker was on the bottom of the basket; thus, he was able to avoid the crushing forces.  The hydraulic pump motor continued to operate, trapping them for approximately one hour.  By the time they were noticed and lowered to the ground, our victim had died due to positional asphyxia.

MSHA completed its investigation and issued its final report on October 28, 2020, three months following the incident.  MSHA found that the mine operator/employer allowed an untrained miner to work underground, failed to properly train miners after modifying equipment, and failed to ensure all safety devices were functioning on relevant machinery.  While it is clear the mine operator/employer’s conduct contributed to the incident and death, Georgia’s Workers’ Compensation laws preclude a lawsuit against employers.  The circumstances of this incident also implicate the designer and manufacturer of the equipment the workers were using.  Kendall is relatively confident the truck was defective and unreasonably dangerous.  Had the truck been properly designed and manufactured, the basket would not have crushed and killed our victims.

Kendall has obtained the services of experts with knowledge and experience regarding this design. Once they complete their analysis, the suit will be filed against the entities responsible for the inadequate design of this equipment. We will keep you updated on the progress of this litigation.  If you have any questions at this time, contact Kendall Dunson at 800-898-2034 or by email at [email protected].

On The Job Injuries – Transportation and Trucking – A Major Problem

In 2019, 5,333 workers died on the job in the United States, according to OSHA.  That averages out to more than 100 per week or about 15 fatalities every day.  Unfortunately, fatal work injuries are on the rise.  Similarly, on-the-job injuries are also on the rise, with approximately 7 million on-the-job injuries happening each year. The most common on the job cause of death is in motor vehicle accidents. Truck and delivery drivers and traveling sales workers are among the occupations with the highest on-the-job fatality rates.  In fact, nearly 40% of the 5,000 on-the-job fatalities were attributed to automobile accidents.  Interestingly, this is more than construction and heavy industry deaths combined.

Our firm has had the honor and privilege of representing many clients who were injured in their line of work as truck drivers.  Our lawyers routinely see scenarios where truck drivers are placed in harm’s way through no fault of their own.  Often that harm is caused by defectively designed trucks, trailers, and tires.  Our lawyers in the Personal Injury & Products Liability Section have seen countless truck drivers permanently injured or killed due to loads shifting forward, crushing the occupant compartment of cabs, or truck cabs crushing following a rollover.

Too often, manufacturers fail to provide crash-worthy occupant structures in their designs of heavy trucks.  Additionally, many heavy truck accidents can be attributed to defectively designed and manufactured heavy truck tires.  Tires suffering either design or manufacturing defects can cause loss of control and rollover hazards.  An out-of-control heavy truck is a recipe for disaster.

Many heavy truck wrecks can be blamed on negligent maintenance and repair issues.  Our firm was hired recently by a young man who suffered a catastrophic injury after a dump truck rolled over when the dump bed was lifted to offload the material he was hauling.  It appears as though negligent maintenance and repair issues are to blame.  Due to someone else’s negligence, this young man will likely have quadriplegia for the rest of his life.

Finally, some on-the-job heavy truck accidents are caused by unreasonably dangerous premises or procedures.  Recently, our firm had a case where a man was severely injured when the dump truck he was operating rolled over on its side on a weigh scale.  The weigh scale was elevated and required the drivers to traverse a very narrow on- and off-ramp.  The elevated ramps had unmarked and unprotected edges.  As soon as one tire left the edge of the elevated scale, the truck rolled over.

Heavy truck wreck cases come in many shapes and sizes.  It is essential to investigate every possible angle thoroughly when assessing these cases.  What, at first, may seem like a workers’ compensation case may, in fact, be more involved. If you have any questions or would like our firm to look at a potential case, contact Sloan Downes, Section Head Administrator for the firm’s Personal Injury & Products Liability Section. She will have a lawyer in the Section contact you. Sloan can be reached by phone at 800-898-2034 or by email at [email protected].

Source: OHSA and AFL-CIO

MASS TORTS LITIGATION

Mass Tort Update: Some Litigation To Follow In 2021

Several areas in the Mass Torts litigation should be closely followed during the remainder of this year. Our lawyers in the Mass Torts Section are handling cases across the broad spectrum of this litigation. I will mention four specific areas, which are set out below, to watch.

Belviq

Belviq is the latest prescription weight-loss medication to come under fire for its risk of dangerous adverse events.  In February 2020, the FDA called for the withdrawal of Belviq and Belviq XR (an extended-release version of Belviq) from the US market because clinical trials showed that patients taking Belviq had an increased occurrence of cancer.  Since that time, about a dozen lawsuits have been filed against Eisai, Inc. and Arena Pharmaceuticals, Inc. (the makers of Belviq), alleging that Belviq caused them to develop cancer. The Judicial Panel on Multidistrict Litigation (JPML) is considering a motion to consolidate the cases into a Multidistrict Litigation (MDL).

On April 12, 2021, several plaintiffs and their lawyers petitioned the JPML, moving to transfer and consolidate all pretrial proceedings to the Eastern District of Louisiana or the Middle District of Florida. This filing comes on the cusp of an increased number of cases filed against the manufacturers and distributors of the weight-loss drug Belviq (lorcaserin hydrochloride).

Belviq manufacturers voluntarily removed Belviq from the U.S. market in February 2020 after the U.S. Food & Drug Administration learned of an increased risk of various cancers in its consumers. Very soon after its removal, law firms filed cases against Belviq’s manufacturers and distributors, namely Arena Pharmaceuticals, Inc., Arena Pharmaceuticals GmbH, Eisai, Inc., and Eisai Co., Ltd.

At the time of filing Plaintiffs’ Motion to Transfer, there were 13 actions filed in 12 different federal courts throughout the country, with the substantial likelihood that many more cases will be filed soon. In their Motion, the Belviq Plaintiffs argued that consolidation of actions is appropriate for these reasons:

  • First, Plaintiffs argued that the lawsuits involved common questions of fact because the Belviq Plaintiffs alleged similar causes of action, namely that that Belviq caused cancer. Defendants knew or should have known of the dangers and defects, and Defendants failed to disclose those defects.
  • Second, Plaintiffs argued that consolidation was appropriate because it would prevent inconsistent rulings, eliminate duplicative discovery, and be more convenient to the parties and courts.
  • Third, the Belviq plaintiffs argued that consolidation is the most practical solution based on the amount of actions filed and forthcoming.

The Belviq Plaintiffs argued that consolidation to the Eastern District of Louisiana, in particular, is appropriate because the Judge sitting in that court, Judge Lance Africk, presides in his court over one of the earliest filed actions and is the most advanced with the plaintiff’s expert reports. Plaintiffs further argue that the Louisiana court would be the most efficient and centralized venue for all parties. Alternatively, the Plaintiffs stated that the Middle District of Florida would also be appropriate because it currently houses the most federal Belviq cases filed to date.

Beasley Allen lawyers continue to investigate cases against Belviq actively. If you are a loved one has been diagnosed with cancer after taking Belviq for weight loss, call Roger Smith or Ryan Duplechin, lawyers in our firm’s Mass Torts Section, at 800-898-2034 or by email at [email protected] or [email protected].

JUUL Litigation

The JUUL litigation is also set for significant progress in the second half of this year. The MDL consists of 1,235 personal injury cases, 170 government entity cases, and multiple class actions that have been filed against 107 defendants. The primary defendants are JUUL Labs, Inc., and Altria. In the corresponding California state court litigation (Judicial Council Coordination Proceeding or JCCP), there are 77 government entity cases, including 73 school districts and 338 personal injury cases brought on behalf of over 2,464 individual personal injury plaintiffs. There are 23 defendants named in those JCCP cases. Another 15 cases have been filed by the State Attorneys General of California, Illinois, Hawaii, New York, North Carolina, Mississippi, Minnesota, Washington D.C., Arizona, Pennsylvania, New Mexico, Massachusetts, Colorado, Alaska and Washington.

Twenty-four personal injury plaintiffs were selected earlier this year for a Bellwether discovery pool. Nearly all have completed a Plaintiff deposition. Depositions of other witnesses have begun, and depositions of plaintiffs’ physicians are anticipated soon. The deadline to complete core discovery is June 1, 2021. By June 3, counsel will exercise their strikes on the Bellwether plaintiff pool. By June 10, counsel will submit ex parte letters to the court recommending four cases for trial.

After the court makes its Bellwether selection, supplemental fact discovery for the first two bellwether trials must conclude by July 1, 2021. Expert discovery for the first two bellwether trials must conclude by September 22, 2021. Bellwether trials are currently scheduled for February 22, 2022, March 28, 2022, May 9, 2022, June 20, 2022, and August 1, 2022.

The Talc Litigation

The talc litigation is still ongoing, and our lawyers have a heavy case load. We wrote about this important legislation in another part of this issue. Leigh O’Dell wrote an excellent article covering an essential part of the litigation that appeared on May 25 in Law360. It was titled: “There is no ‘Junk Science’ Epidemic in Consumer Litigation.” This article is available on our website Beasleyallen.com.

Plaintiffs Claim U.S. Supreme Court Decision Impacts Zantac Lawsuit

On March 25, 2021, the U.S. Supreme Court issued the Ford Motor Co. v. Montana Eighth Judicial District ruling. We have written in previous issues in detail on this decision and its ramifications. Ford involved two consolidated cases from the Minnesota and Montana Supreme Courts finding specific jurisdiction over Ford.  In both the Minnesota and Montana cases, plaintiffs were residents of these states and were injured by defects in Ford’s cars there.  The plaintiffs filed their suits in their home states — where the accident also occurred.  The cars at issue were manufactured, designed, and originally sold outside the forum state.  Ford argued that since the plaintiffs’ cars were not purchased brand new in those states, their claims were not related to Ford’s in-state contacts.  The U.S. Supreme Court disagreed and reasoned:

The accident happened in the State where the suit was brought. The victim was one of the State’s residents. And Ford did substantial business in the State—among other things, advertising, selling, and servicing the model of vehicle the suit claims is defective. When a company like Ford serves a market for a product in a State, and that product causes injury in the State to one of its residents, the State’s courts may entertain the resulting suit.

The Ford decision has subsequently been cited in at least 31 cases as courts grapple with Ford’s effect.

Plaintiffs in the Zantac multi-district litigation have now rightfully moved to resurrect claims the court previously dismissed on jurisdictional grounds the U.S. Supreme Court clearly rejected in the Ford opinion.  Specifically, plaintiffs filed a brief arguing that Ford rescues their negligent misrepresentation claims under California and Massachusetts laws against brand-name manufacturers of Zantac, which contain a carcinogenic chemical. These “innovator liability” laws of these states allow patients who took generic versions of a drug to argue that the drug’s brand companies misrepresented labeling in the drug.

The judge overseeing the Zantac MDL previously dismissed plaintiffs’ innovator liability claims under the California and Massachusetts laws on jurisdictional grounds, citing Waite v. Acquisition Corp., a 2018 Eleventh Circuit case requiring causal links between a plaintiff’s claims and the defendant’s marketing activities.

Now that the Supreme Court has definitively rejected this very causation standard for specific jurisdiction, Plaintiffs are right to insist on reinstatement of these claims. The future decision could determine whether the Zantac plaintiffs can revive these state law claims. Stay tuned!

Source: Reuters

High Court Won’t Hear $70 Million Risperdal Verdict Challenge

The U.S. Supreme Court won’t review a $70 million verdict against Janssen, a Johnson & Johnson unit, for a Pennsylvania man who grew enlarged breasts from taking Risperdal. On May 17, the Justices denied cert for J&J subsidiary Janssen Pharmaceuticals Inc.’s appeal of the 2016 verdict, in which a Philadelphia jury found the drugmaker liable for not adequately warning Andrew Yount and his family that the drug could cause gynecomastia, or male breast growth when prescribed to adolescent boys.

When Yount first started taking the drug in 2003, it was only approved for treating schizophrenia in adults, and warning labels indicated that gynecomastia was a “rare” side effect that occurred in fewer than one in 1,000 patients. The drug later won approval from the U.S. Food and Drug Administration for use in treating symptoms of autism in adolescent patients, and the label was updated to show that gynecomastia occurred in 2.3% of children who used it.

Yount won a $70 million verdict at trial, which Pennsylvania’s Superior Court upheld over Janssen’s arguments the award was excessive. The Supreme Court of Pennsylvania rejected an appeal in September 2020. Janssen appealed to the U.S. Supreme Court in January 2021, seeking to argue that federal law barred it from unilaterally changing Risperdal’s label to include warnings about the risks of “off-label” uses since the drug had not been approved for treating children at the time Yount started taking it.

Warnings related to off-label use might be seen as the manufacturer promoting such uses, prohibited by the Food, Drug & Cosmetic Act, the drugmaker’s petition for cert said. Instead, Janssen said the FDA had to mandate such warnings only where experts found them necessary, so the state courts’ determination that Janssen should have included pediatric gynecomastia warnings was preempted by federal law, the company said.

In their brief opposing cert, Yount’s lawyers said Janssen had known the risks were greater than their label admitted. Yet, the company was still “aggressively marketing” Risperdal for off-label use without updating the label or warning doctors. Charles “Chip” Becker of Kline & Specter, representing Yount, said:

The plaintiffs’ trial and appellate team is pleased that compensatory damages is decided with finality so that Tom Kline and Jason Itkin can begin their work on the punitive damages trial to hold Janssen fully accountable in this litigation.

Plaintiff Yount is represented by Thomas R. Kline, Charles L. Becker, Christopher A. Gomez and Ruxandra M. Laidacker of Kline & Specter PC, Jason A. Itkin of Arnold & Itkin, and Stephen A. Sheller of Sheller PC. The case is Janssen Pharmaceuticals Inc. et al. v. A.Y. et al. (case number 20-1069) in the Supreme Court of the United States.

Source: Law360.com

TOXIC TORT LITIGATION

Toxic Torts Litigation To Follow In 2021

Courts are rebounding from the backlog created by the pandemic, and while it may not be business as usual, they are resuming to more of an average pace. Many of the cases in litigation our Toxic Torts lawyers handle demonstrate this, with more trial dates and other hearings being scheduled throughout the remainder of the year and into 2022. The following are several of the areas we believe should be followed in the upcoming months.

Asbestos in Talc

For decades, it has been known that asbestos can cause many serious diseases, including lung cancer and mesothelioma.   For much of that time, lawyers have fought to protect the rights of individuals who were exposed to that deadly fiber. In the past 10 years, it has become abundantly clear that asbestos was not just used in the automotive, construction, and other heavy industries. Asbestos contaminates some of the most common products in America.

The one that stands out is talcum powder, specifically Johnson  & Johnson’s Baby Powder. Internal documents from Johnson & Johnson revealed that it was aware of asbestos in its product for decades. Recent lawsuits in various jurisdictions have successfully proved both liability and causation related to Johnson & Johnson’s Baby Powder caused people to contract mesothelioma, which is caused exclusively by exposure to asbestos.

As more of these cases have been successful, people diagnosed with mesothelioma must consider that their use of baby powder or even applying it to their children may have been what caused the deadly disease to develop. Beasley Allen lawyers handle these cases on behalf of clients and have successfully taken on giants, such as Johnson & Johnson, to ensure that our clients receive just compensation.

3M Earplugs

Around 220,000 service members and veterans say 3M Co. and a predecessor, Aearo LLC, supplied Combat Arms Earplugs Version 2  earplugs that were defective and didn’t protect against service-related tinnitus and hearing loss. They additionally claim the earplugs didn’t come with complete and honest warnings and say they received the earplugs during their military service had their hearing measured through military-issued audiograms, and were injured during their military training.

The plaintiffs are part of a multidistrict litigation (MDL) against Minnesota-based 3M, which allegedly manufactured and sold a product to the Department of Defense (DOD) it knew to be defective. The case is In re: 3M Combat Arms Earplug Products Liability Litigation (case number 3:19-md-02885) in the U.S. District Court for the Northern District of Florida. U.S. District Judge M. Casey Rodgers oversees the MDL.

The first bellwether trial ended with a jury awarding $2.1 million in punitive damages to each of three plaintiffs over their preventable hearing loss. Each plaintiff was also awarded additional money for related effects, including pain and suffering, medical costs and lost earnings – totaling a $7.1 million verdict. The jury agreed with the plaintiffs that 3M knew its earplugs were defective and failed to prevent the plaintiffs from suffering life-altering injuries. Judge Rodgers also denied several motions for mistrial by 3M. The company says it will appeal.

The second bellwether trial for the MDL got underway on May 17, and a third trial is slated to begin June 7. The MDL is the largest in U.S. history, and we will keep readers updated as the other two bellwether trials unfold.

E-cigarette

Exploding electronic cigarettes or e-cigarettes have been the subject of a growing number of lawsuits. Explosions can occur when the battery is inside the device, on a charger, or when it’s tucked away loosely in a pocket or purse. These explosions have been linked to faulty e-cigarette products, defective lithium-ion batteries and insufficient warnings for users. The explosions have caused catastrophic and permanent injuries. Most e-cigarette injuries that are serious enough to require hospitalization are second- and third-degree burns to the legs, thighs and genitals. Hands and fingers were the second most affected parts of the body. E-cigarette explosions have also caused severe head and facial trauma. In addition to thermal burns and lacerations caused by shrapnel, facial injuries include loss of eyes, teeth and tongue. Cases have been filed against several large manufacturers of lithium-ion batteries.

“Forever Chemicals” Litigation

“Forever Chemicals” or Per- and polyfluoroalkyl substances (PFAS) are a group of human-made chemicals that includes PFOA, PFOS, GenX, and many other chemicals. PFAS have been manufactured and used in various industries worldwide, including in the United States, since the 1940s. PFOA and PFOS have been the most extensively produced and studied of these chemicals. Both chemicals are very persistent in the environment and the human body – meaning they don’t break down and accumulate over time. There is evidence that exposure to PFAS can lead to adverse human health effects.

The aqueous film-forming foams (AFFF) multidistrict litigation (MDL) comprises approximately five hundred cases. Plaintiffs allege that AFFFs, a type of PFAS, contaminated water near various military bases, airports, and other industrial sites where AFFFs were used to extinguish liquid fuel fires. The plaintiffs also allege that they experienced personal injury, a need for medical monitoring, property damage, or other economic losses.

One AFFF case could settle in 2021. A proposed settlement in Campbell et al., v. Tyco Fire Products LP et al., if approved, would compensate class members for property damage and personal injury for those diagnosed with the following diseases 1) testicular cancer; 2) kidney cancer; 3) ulcerative colitis; 4) thyroid disease; and 5) preeclampsia. The total proposed settlement is $17.5 million.

PFAS litigation also involves water contamination from industrial sites that used the chemicals to provide water and stain resistance to carpet, textile, and paper products. Four such cases involve the carpet manufacturing industry in Northwest Georgia.  Beasley Allen represents the water and sewer boards of two cities downriver from PFAS contamination from the Carpet Capitol of the World, Dalton, Georgia. Set for trial in fall 2022, The Water Works and Sewer Board of the City of Gadsden v. 3M et al. seeks compensation for filtration technology to remove the toxic chemicals in the cities drinking water.

Opioids

Plaintiffs in the opioid litigation have weathered delays caused by the pandemic and have started trying their cases against pharmaceutical industry defendants. Due to the COVID-19 pandemic, the only opioid crisis litigation to go to trial up to this point was the State of Oklahoma’s case against Johnson & Johnson (J&J), which resulted in a $465 million verdict from the bench against J&J. However, that is changing with multiple trials beginning in recent months.

In California, a trial in which Los Angeles, Orange and Santa Clara counties accuse J&J, Teva Pharmaceuticals and Allergan PLC of unleashing a devastating wave of drug dependence and death began April 19, 2021. Like the Oklahoma trial in 2019, the California case will be a bench trial. In a new fashion, however, all trial proceedings are being conducted remotely and live-streamed online. The case is People of the State of California v. Purdue Pharma LP et al., case number 2014-00725287, in the Superior Court of the State of California, County of Orange.

In West Virginia, the MDL’s first bellwether trial, which started on May 3, is ongoing. We wrote on this case in this issue. This trial, however, is not available online, as the public and the press will only be able to watch the proceedings from an overflow room at the courthouse.

Also coming up in 2021, a trial for the State of Alabama’s case against Endo Health Solutions and McKesson Corp. is set for November 1, 2021. Beasley Allen has joined Alabama Attorney General Steve Marshall to represent the State of Alabama in this case.

Several other states have opioid litigation trials scheduled for 2021,

including New York, Washington, Ohio, and Alaska.

Beasley Allen is also working with Georgia Attorney General Chris Carr on behalf of the state against opioid manufacturers Endo, Actavis, Teva and Mallinckrodt and opioid distributors McKesson, Cardinal Health, AmerisourceBergen, and Smith Drug. The State of Georgia’s trial is slated for May 2022.

Paraquat

Paraquat litigation is coming to a critical point: consolidation. The Judicial Panel on Multidistrict Litigation (JPML) is considering a request to consolidate and transfer all pending federal cases nationwide to a singular federal district court for pre-trial proceedings, creating a multidistrict litigation (MDL). Plaintiffs requested consolidation because the filed claims share common defendants and fact patterns. The JPML will hear oral arguments concerning the need to consolidate and the potential location for the MDL on May 27, 2021.

Several potential federal district court locations have been proposed. Beasley Allen lawyers proposed the Northern District of Alabama and are confident that the court provides all of the essentials to support a Paraquat MDL. Beasley Allen lawyers are taking steps to promote our clients’ best interests. Consolidation will encourage consistency in discovery matters and is the first step to resolving these cases.

In the meantime, a state case is pending in St. Clair County, Illinois, before Judge Kevin Hoerner. The bench trial was set to begin on May 10, 2021. However, the parties asked for a delay which Judge Hoerner granted. The bench trial will only focus on consumer fraud claims.

The suits against Syngenta and Chevron all allege that Syngenta and Chevron knew about the dangers of Paraquat for 40 years minimum. The suits further allege that these defendants hid evidence of its risks from the government to pursue profits over peoples’ safety. There are more than 70 cases filed in more than 12 districts over paraquat. These suits all have a common claim: plaintiffs developed Parkinson’s Disease after years of exposure to the herbicide Paraquat. Many of these plaintiffs are farm owners or farm workers exposed to Paraquat through their work on a farm. Parkinson’s Disease, a neurodegenerative disease, is only known to occur in humans naturally. In research on laboratory animals, Paraquat is used to produce animal models of Parkinson’s Disease.

Lawyers in Beasley Allen’s Toxic Torts Section are accepting Paraquat cases. Contact Rhon Jones, Charlie Stern, Ryan Kral, Trisha Green or Matt Pettit for more information at 800-898-2034 or by email at [email protected], [email protected], [email protected] or [email protected] or [email protected].

Source: Law360

PFAS Council Formed By The EPA

The U.S. Environmental Protection Agency (EPA) has announced the creation of an advisory council to determine how it can most effectively address the widespread contamination of Per- and Polyfluoroalkyl Substances (PFAS). As our readers should now know, PFAS are known as “forever chemicals.” That’s because they do not degrade in the environment or bioaccumulate in animals. PFAs have been linked with various health issues, including kidney and testicular cancer, and have become a major problem.

Several years ago, millions of Americans learned PFAS were present in their drinking water.  Intense public attention on these chemicals has spurred litigation across the country and pushed it to the forefront as one of the most pressing environmental issues in the country. The Biden Administration has rightly focused its environmental agenda on PFAS by requesting $75 million in funding for toxicity studies and forming this advisory council.

President Biden nominated Radhika Fox Deborah Szaro, the acting regional administrator in EPA Region 1, to lead the EPA Council on PFAS.  The Council’s work will be based on the EPA’s 2019 PFAS Action Plan, which was the first significant plan to address the newfound contamination.  The Council will develop a new, multi-year strategy by reviewing all ongoing actions, proposing any necessary modifications, and identifying new strategies and priorities. The council is expected to deliver its initial recommendations within 100 days of its establishment.

If you have any questions, contact Ryan Kral, a lawyer in our firm’s Toxic Torts Section, at 800-898-2034 or by email at [email protected].

Source: Law360.com

Asbestos In Talc Products Causes Huge Problems

Charlie Stern, one of the Beasley Allen lawyers handling the asbestos-related talc litigation, writes on two areas of this ongoing litigation. As we have stated previously, litigation involving asbestos-related injuries and deaths has increased dramatically over the past several years. For decades, it has been known that asbestos can cause many serious diseases, including lung cancer and mesothelioma.  For much of that time, lawyers have fought to protect the rights of individuals who were exposed to that deadly fiber.  In the past 10 years, it has become abundantly clear that asbestos was not just used in the automotive, construction and other heavy industries. Asbestos has been found to be a contaminant of some of the most common consumer products in America.

Johnson & Johnson Baby Powder

The one product that stands out is talcum powder, specifically Johnson & Johnson’s Baby Powder. Internal documents from Johnson & Johnson (J&J) have revealed that the company was aware of asbestos in its talc product for decades. Recent lawsuits in various jurisdictions have successfully proven both liability and causation related to J&J’s Baby Powder causing people to contract mesothelioma, which is caused exclusively by exposure to asbestos.

As more of these cases have been successful, people diagnosed with mesothelioma must consider that their use of baby powder, or even applying it to their children, may have been what caused the deadly disease to develop. Beasley Allen lawyers are litigating these cases on behalf of clients and are qualified and equipped to take on corporate giants, such as Johnson & Johnson, to ensure that our clients receive just compensation.

Automotive Industry Exposures To Asbestos

For almost a century, asbestos was a popular material used for vehicular brakes because of its heat resistance and strength. The concentration of asbestos in these brakes could range anywhere from 30 to 80 percent.  Because of the routine nature of doing brake work, hundreds of thousands of automotive mechanics were exposed to asbestos over the years.  Work that leads to these exposures includes routine tasks of “blowing out” brake surfaces (using an air hose to clean the surfaces) and beveling brakes.

Amazingly, a number of companies, including Ford and Bendix, utilized asbestos in certain brakes until the 1990s, if not later. Along with brakes, automotive mechanics were routinely exposed to asbestos from their work with and around clutches and gasket material associated with vehicle engines.

The manufacturers of the automobiles and the component pieces understood that asbestos was a hazard as far back as the 1930s. Despite this knowledge, asbestos was routinely utilized in automobiles in ways that lead to likely and repeated exposures.  For example, because brakes are “wear items” and require changing, an automotive mechanic may be tasked with performing dozens of “brake jobs” per week.  Each of those jobs resulted in exposure to asbestos, which can cause the deadly and incurable form of cancer known as mesothelioma.

Beasley Allen lawyers fight to protect the lives and rights of men and women who are exposed to asbestos in the automotive industry.  Unfortunately, after 40 years of defending these cases, automotive manufacturers have become very skilled at deflecting blame and attempting to limit recovery for those injured by asbestos. Beasley Allen lawyers have skill, experience, and institutional knowledge required to combat these tactics and ensure that our clients are compensated and these bad actors are held to account.

If you have any questions or need help with a potential claim, contact Charlie Stern at 800-898-2034 or by email at [email protected].

The Ongoing Roundup Litigation

Beasley Allen Roundup Litigation

Beasley Allen lawyers are currently representing 3,500 clients who have been exposed to Roundup and developed non-Hodgkin’s lymphoma. Rhon Jones, Charlie Stern, Ryan Kral, Trisha Green or Matt Pettit make-up on our Roundup Litigation Team.

On May 26, U.S. District Judge Vince Chhabria issued a ruling that was really bad news for Monsanto and Bayer. The judge rejected preliminary approval of the latest edition of the proposed class action settlement. Basically, the judge’s order said the order favored Monsanto and was not good enough for victims.

Judge Chhabria said the proposed settlement agreement is “clearly unreasonable” for a group of potential future Roundup plaintiffs who were exposed to the weedkiller and then developed non-Hodgkin’s lymphoma.

The $2 billion plan follows Monsanto’s separate, $9.6 billion settlement from last year to resolve the bulk of the multidistrict litigation from actual claimants alleging that Roundup caused cancer.

The lawyers on our Roundup Litigation Team will answer any questions you might have about the status of the litigation. Call Tracie Harrison at 800-898-2034 or by email at [email protected], and she will put you in touch with one of the Beasley Allen lawyers handling the Roundup Litigation.

Class Action Litigation

USFL Settles Class Action For Inflating Cost Of Life Insurance

Subject to final approval by the United States District Court for the Southern District of Ohio, U.S. Financial Life Insurance (USFL) Company has reached a class action settlement valued at over $28 million with the named Plaintiff and a proposed settlement class involving nearly 12,000 policyholders of USFL.

The lead plaintiff and the proposed settlement class are represented by Beasley Allen lawyers Dee Miles, Rachel Minder, and Paul Evans, along with local counsel Jeffrey S. Goldenberg and Todd B. Naylor of Goldenberg Schneider, L.P.A.

On May 4, U.S. District Judge Matthew W. McFarland of the Southern District of Ohio preliminarily approved the proposed settlement and preliminarily certified the proposed settlement class. Judge McFarland preliminarily appointed Dee Miles, Rachel Minder, and Paul Evans as Lead Class Counsel and ordered the dissemination of class notice to proposed class members.

The proposed settlement relates to the class action complaint filed in Farris v. U.S. Financial Life Insurance Co., No. 1:17-cv-417 (S.D. Ohio filed June 19, 2017).  Plaintiffs’ class action complaint asserted claims for breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, conversion, and fraudulent misrepresentation, alleging the insurer unjustifiably increased the cost of insurance (COI) charges on certain universal life products in 2015. These increases affected approximately 11,891 universal life policyholders, who are included in the proposed settlement class definition.

The settlement agreement reached with USFL, subject to final approval, provides the proposed class members with several valuable benefits.

  • USFL will create a common settlement fund for $11.5 million. This fund will be distributed to settlement class members, pro-rata, based on the proportion of COI charged to each class policy after the 2015 COI rate increases.  No settlement class member will receive less than $100.
  • The proposed settlement provides that USFL agrees not to impose any COI rate increases on class members’ policies for five years.
  • USFL agrees not to seek to void, rescind, cancel, have declared void, or otherwise deny coverage or death claims submitted by settlement class members based on any alleged lack of insurable interest or misrepresentations made in connection with the initial application process.
  • For class members who have not already availed themselves of this right in 2021, USFL agrees to provide in-force illustrations to class members upon request and at no cost to the settlement class member until October 1, 2021.

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

Subject to the requirements of any orders entered by the court, the Settlement Administrator will send a Class Notice by first-class mail to the last known address of each reasonably identified person and entity in the Settlement Class. Settlement Class Members will have 45 days after notice is sent to either exclude themselves from the Settlement Class by sending a written Request for Exclusion to Co-Lead Class Counsel or object to the proposed Settlement by filing a written statement of objections with the Court. The Final Fairness Hearing is scheduled for August 12, 2021.

Our firm is proud to represent these policyholders and is pleased with their relief in this class action settlement. The case was a hard-fought battle with worthy advocates opposing our class, but the case resolved with very good relief and benefits to the class members. We look forward to the court granting final approval to the class in August.

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

Ford Tailgate System Class Action

Our law firm has filed an important class action lawsuit against Ford Motor Co. in Michigan. Our lawyers contend in the complaint that “some of Ford’s ‘toughest’ and ‘most capable’ trucks are in fact dangerous and unfit for the road due to an electronic tailgate defect.” The nationwide class action alleges Ford knowingly advertised and sold vehicles suffering from a “dangerously defective and unreliable tailgate latch system.” It also alleges the faulty systems cause the affected Ford trucks to release the loads they are towing randomly, even while in motion.

The affected trucks include model year 2017-2021 Ford F-250, F-350, and F-450 Super Duty vehicles with an electronic tailgate system. The trucks cannot reliably and safely transport humans and animals or haul and tow heavy cargo and equipment, which is their highly advertised function. While Ford knew about the tailgate defect, it has continued marketing the trucks as reliable for towing and hauling heavy-duty gear.

William Cunningham, one of the lead plaintiffs in the case, “bought a new 2019 Ford F-250 in 2019, and although the vehicle had already faced a safety recall, he was never made aware of its potential defect. The Cunningham’s tailgate on the truck began opening unintentionally not long after he purchased the truck and has continued to do so since.

In 2018, Tristate Collision, LLC, another lead plaintiff in the case, alleges a similar situation occurred when it purchased a new 2018 Ford F-250 in Alabama. Two months after buying the truck, the tailgate began opening unintentionally. Since then, Tristate Collision says it has done so at least once every other week. This defect poses a clear, substantial, and unreasonable danger of death to any person in the vehicle.

Ford has been aware of the tailgate defect since 2017. The company has issued technical services bulletins relating to the problem and recalled 231,664 vehicles for tailgate-related issues. However, the recall was inadequate because it did not include all the affected vehicles. The vehicles still suffered the issue after repairs were made. Cunningham and Tristate Collision seek to represent anyone in the US who owns or leases one of the affected Ford trucks. They are filing an Alabama and Georgia subclass. The lawsuit includes claims of Magnusson-Moss Warranty Act violations, fraudulent omission, breach of warranty, and unjust enrichment.

Members of Beasley Allen’s Auto Defect Class Action Litigation Team, Dee Miles, Clay Barnett and Mitch Williams, are leading the charge on this case, along with two other law firms, Dicello, Levitt & Gutzler and The Miller Law Firm. We will keep our readers posted on developments in this new class action lawsuit as it goes forward. If you have any questions, contact Dee, Clay or Mitch at 800-898-2034 or by email at [email protected], [email protected] or [email protected].

Source: https://topclassactions.com/lawsuit-settlements/consumer-products/auto-news/1015510-ford-tailgate-system-is-dangerous-and-defective-new-lawsuit-claims/

More Information On Class Action Litigation

Activity in class action litigation hasn’t slowed down a bit during 2020, and the same holds true thus far in 2021. Even with the pandemic slowing down the judicial system, cases are being filed and settled, and trials being set. There have been a significant number of settlements around the country in class action litigation. We will mention some of the significant ones below.

$1.3 Billion Hyundai, Kia Engine Flaw Settlement

A California federal judge has given final approval to an approximately $1.3 Billion settlement that includes full reimbursements for repairs and extended warranties to resolve consolidated class claims that Hyundai and Kia sold vehicles with failure-prone engines that could sometimes catch fire.

U.S. District Judge Josephine L. Staton of the Central District of California granted the parties’ request for final approval of a nationwide settlement valued at $1.3 billion that reimburses consumers for out-of-pocket repairs, offers software updates, provides goodwill payments and extends warranties for affected-class vehicles, among other things. The bulk of the settlement — almost $1 billion — is attributed to the estimated value of the lifetime warranty coverage.

Despite their willingness to settle, the automakers have denied thousands of claims submitted by class consumers, a development that concerned Judge Staton. The judge ordered the parties to report back on claims processing to ensure that Hyundai and Kia “are not denying claims unreasonably or in bad faith.” She also asked for assurances that claimants were told of their right to arbitrate their case through the Better Business Bureau.

Judge Staton made it clear that: “Explicitly excluded from the settlement are any claims for death, personal injury, damage to property other than a class vehicle, or subrogation.”

For nearly a decade, the class actions alleged that Hyundai and Kia knowingly sold vehicles equipped with Theta II 2.0-liter or 2.4-liter direct-injection engines that could seize, fail, or potentially catch fire. They accused Hyundai and Kia of failing to properly disclose the defects and issuing piecemeal technical service bulletins or limited safety recalls of only certain cars over the years that never fixed the underlying defect.

The National Highway Traffic Safety Administration in 2017 began investigating reports of engine failures in certain Hyundai and Kia vehicles, a probe that was expanded in April 2019 after the vehicle safety agency received complaints of fires in more than 3,000 Hyundai and Kia vehicles, as well as 103 injuries and one death.

Under the settlement, Hyundai and Kia have agreed to install an updated safety feature called the “knock sensor detection system” that warns drivers if there’s a risk of engine stalling. Class members will also receive a lifetime warranty on the so-called engine short block — specifically, the rotating assembly where the defect is located. The settlement covers nearly 4 million Hyundai and Kia vehicles.

Additionally, class members will be reimbursed for past repair expenses, including rental car and towing service costs. And class members whose engines failed or caught fire, as well as those whose repairs were delayed, are eligible for additional goodwill payments. For example, if a class member was “inconvenienced by prolonged delays (exceeding 60 days) obtaining any qualified repair from an authorized Hyundai or Kia dealership,” then the class member can collect $50 for delays lasting 61 to 90 days, and $25 for each additional 30-day delay, according to the order.

Hyundai and Kia also agreed to reimburse consumers in the class who sold or traded in their car without first getting the recommended repair. The reimbursement amount would be the difference between the value the class member received in the transaction and the vehicles’ baseline “black book” value, plus an additional $140 goodwill payment, according to the order.

According to the court order, as of April 2, Hyundai had received 59,986 claims totaling approximately $80 million, but only approved 3,648 worth $5 million. Over 29,000 claims are still pending. And as of March 31, Kia had received 42,269 claims for a total claimed value of $43.9 million but only approved 3,583 in the amount of $5.9 million. About 2,000 Kia claims are still pending.

The consumers are represented by Joseph G. Sauder, Matthew D. Schelkopf and Joseph B. Kenney of Sauder Schelkopf LLC, Adam Gonnelli of the Law Office of Adam R. Gonnelli LLC, Bonner Walsh of Walsh PLLC and Steve Berman of Hagens Berman Sobol Shapiro LLP.

The lead case is In re: Hyundai and Kia Engine Litigation (case number 8:17-cv-00838), and related cases are Christopher Stanczak et al. v. Kia Motors America Inc. (case number 8:17-cv-01365); Wallace Coats et al. v. Hyundai Motor Co. Ltd. et al. (case number 8:17-cv-02208); Andrea Smolek v. Hyundai Motor America et al. (case number 2:18-cv-05255); Maryanne Brogan v. Hyundai Motor America et al. (case number 8:18-cv-00622); and Leslie Flaherty et al. v. Hyundai Motor Co. et al. (case number 8:18-cv-02223) in the U.S. District Court for the Central District of California.

Source: Law360.com

Granite Construction And Investors Reach $129 Million Settlement On Fraud Claims

A class of investors suing Granite Construction Inc. for using fraudulent accounting techniques have reached a $129 million settlement. They asked a California federal judge to approve the settlement preliminarily. The suit was over the “hiding of $338 million in cost overruns” by Granite Construction.

The investors said the agreed settlement was reached after multiple mediation sessions with a magistrate judge. The settlement would also resolve a proposed class action pending out in California state court over the same set of facts.

The class plaintiffs told U.S. District Judge William Alsup that the proposed settlement is fair and that the $129 million “represents a significant benefit for the class. To put it into context, $129 million represents 21-30% of estimated total damages, a percentage that exceeds by nearly 400% the average recovery of Section 10(b) cases between 2011 and 2020 and many recent class action settlements in this district,” according to class plaintiffs.

California-based Granite Construction bids on and completes large infrastructure projects for public and private clients, including the four at issue in the August 2019 lawsuit, in which the company is said to have used fraudulent accounting techniques in preparing financial reports.

Investors, led by the Police Retirement System of St. Louis, allege the following in the complaint:

  • Granite Construction committed securities fraud between April 30, 2018, and Oct. 24, 2019, by artificially inflating the value of the company’s stock.
  • Each project — a $2.3 billion contract on an interstate highway in Florida; a $3.14 billion contract for work on the Governor Mario M. Cuomo Bridge, then named the Tappan Zee Bridge, in New York; a $1.1 billion contract for a bridge in Pennsylvania and a $1.2 billion project to rebuild a long stretch of highway in Texas — experienced significant cost overruns, which the company and its executives either understated or hid in its financial reports.
  • Fixed-price contracts governed each project at issue, so Granite Construction had “extremely limited options to obtain additional compensation” if extra expenses arose.
  • The company took each project as a joint venture with other construction companies, so its “financial interest in the projects (including its share of profits and losses) was tied to its ownership stake in each.”
  • The cost overruns from the four projects allegedly totaled about $1.4 billion.
  • Granite Construction’s share in those projects was a combined $338 million.

The suit also names Granite Construction CEO James Roberts, Chief Financial Officer Jigisha Desai and former Chief Financial Officer Laurel Krzeminski. Judge Alsup certified the class in January. The pension fund estimated hundreds “if not thousands of” members in the class, including 453 institutional investors, which is sufficient to satisfy numerosity, the judge said in his certification order.

The proposed settlement would include the release of all claims under the federal suit and the proposed class claims in Nasseri v. Granite Construction, Inc., filed in the California Superior Court in Santa Cruz County. The Nasseri suit does not have a certification motion pending, but any potential class members, in that case, are class members in the federal suit, according to the proposed settlement.

The settlement fund would be distributed based on a statutory formula, including whether the claimant has Securities Exchange Act of 1934 claims or Securities Act of 1933 claims, and “based on the relative strength of such claims,” according to the proposed settlement. The proposed settlement does not grant preferential treatment to class representatives.

The Police Retirement System of St. Louis is represented by Peter E. Borkon, Javier Bleichmar, Joseph A. Fonti and George N. Bauer of Bleichmar Fonti & Auld LLP. The case is The Police Retirement System of St. Louis v. Granite Construction Inc. et al. (case number 3:19-cv-04744) in the U.S. District Court for the Northern District of California.

Source: Law360.com

$95 Million Tableau Stock-Drop Settlement Gets Initial Approval

A New York federal judge has granted the preliminary approval of a $95 million settlement in a class action accusing tech company Tableau Software of misleading investors about threats that competitors posed to its bottom line. This order brings Tableau closer to resolving a pair of Exchange Act claims brought on behalf of thousands of investors alleging the business-analytics firm painted a rosy picture of its financial prospects for shareholders, even as it knew competitors such as Amazon and Microsoft were siphoning off its client base with lower-cost alternatives. U.S. District Judge John G. Koeltl said during a hearing last month:

The proposal is procedurally fair, substantively fair, and certainly should be sent to shareholders for their review.

Judge Koeltl certified the class in January 2020. Lead plaintiffs are the Plumbers and Pipefitters National Pension Fund. The parties filed a joint motion for settlement in April.

The suit alleged that Tableau executives Christian Chabot, Thomas Walker, Patrick Hanrahan and Christopher Stolte knew as early as February 2015 that its profits would slide as competitors to its business analytics software emerged. The suit says the executives quietly sold off substantial portions of their stock holdings, amassing more than $371 million before revealing in February 2016 that the revenue growth had slowed. That triggered a selloff that sent the stock price falling from $81.75 to $41.33 the following day.

The investors are represented by Samuel H. Rudman, David A. Rosenfeld, William J. Geddish, Ellen Gusikoff Stewart and Douglas R. Britton of Robbins Geller Rudman & Dowd LLP; Jonathan Gardner and Christine M. Fox of Labaton Sucharow LLP; and Louis P. Malone of O’Donoghue & O’Donoghue LLP. The case is Scheufele et al. v. Tableau Software Inc. et al. (case number 1:17-cv-05753) in the U.S. District Court for the Southern District of New York. Judge Koeltl scheduled a final settlement hearing for Sept. 14.

Source: Law360.com

TD Bank Customers Reach $41.5 Million Settlement In Excessive Fee Suit

Toronto-Dominion Bank and a proposed class of customers alleging it charged them millions in unlawful fees have reached a $41.5 million settlement that includes cash payments and debt forgiveness. The proposed settlement would end the litigation alleging the bank hit its American customers with multiple penalties for non-sufficient funds transactions and represents a recovery of between 42-70% of the estimated damages that could have resulted from a trial, according to the customers.

If approved by the court, the settlement would conclude the “groundbreaking case” that was filed “under a novel theory of liability that had never before been endorsed by a court or challenged by a governmental entity or consumer watchdog,” the customers said. The suit was filed in 2018 on behalf of a putative class by Mary Jennifer Perks, a checking customer at the bank, which is based in Toronto.

While TD Bank is in the right to charge a single $35 NSF fee for a single failed consumer transaction, the bank routinely assesses unlawful, multiple NSF fees by resubmitting transactions even when it “knows full well” the transaction will fail again, according to the 2018 complaint. The suit said TD Bank is unlike other big banks, which do not engage in the allegedly abusive practice, and that Ms. Perks was hit with a total of $140 worth of NSF fees in 2018 when she tried to make two PayPal transfers worth a total of less than $6. The suit alleges further that the bank’s agreement with customers makes material misrepresentations and omits that it will attempt to resubmit failed transactions for an additional $35.

According to the proposed settlement, at least $20,750,000 would be dedicated to forgiving NSF fees still assessed to customers whose accounts are closed at TD Bank. Funds would be distributed to settlement class members by direct deposit to existing customers and by check mailed to former customers. Payments would be distributed pro-rata based on the fees charged to each settlement class member.

The plaintiff is represented by Richard E. Shevitz, Lynn A. Toops and Vess A. Miller of Cohen & Malad LLP, Jeff Ostrow and Jonathan M. Streisfeld of Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Jeffrey D. Kaliel and Sophia Gold of Kaliel PLLC, and James J. Bilsborrow of Weitz & Luxenberg PC.

The case is Perks v. TD Bank NA, case number 1:18-cv-11176, in the U.S. District Court for the Southern District of New York.

Source: Law360.com

$6 Million To Settle Bank Of America Credit Card Autopay Suit

A proposed class of roughly 100,000 consumers have asked a New Jersey federal judge to preliminarily approve a $5.95 million settlement that would resolve claims that Bank of America tricked its credit card holders into choosing the highest interest option for their monthly payments, in violation of debt collection law.

The proposed settlement agreement would create a $5.95 million common fund financed by the North Carolina-based bank. Class members would receive automatic checks proportional to the interest they paid.

The interest period runs from the time a consumer’s “Amount Due” payment option was available to when their “switch of payment options from ‘Amount Due’ to ‘Account Balance’ became effective.”

Plaintiff Michael Jette filed his putative class action last June, claiming that the bank’s online autopay interface doesn’t clarify that the default option is actually the minimum amount due, which is the most costly method for the customer.

The bank’s autopay system presents customers with the options of paying the “Minimum Amount Due,” “Account Balance,” “Fixed Amount,” and “Amount Due.” Like those of other banks, the credit card agreements explain that no interest will be charged if the cardholder pays the entire balance by the due date, according to the complaint.

Jette and the proposed class members chose the “Amount Due” option, so the bank withdrew only the minimum amount due, leaving balances that carried over and incurred interest charges, according to court documents. U.S. District Judge Susan D. Wigenton trimmed claims from the suit last October but denied the bank’s request to strike the class allegations.

Class members will receive a short-form notice through an e-mail if an e-mail address is available or through first-class mail. A long-form notice will also be posted on the settlement website. Class members would not be required to submit a claim form.

Jette is represented by James C. Shah and Natalie Finkelman Bennett of Shepherd Finkelman Miller & Shah LLP, and Hassan A. Zavareei of Tycko & Zavareei LLP. The case is Michael Jette v. Bank of America NA (case no. 2:20-cv-06791) in the U.S. District Court for the District of New Jersey.

Source: Law360.com

SECURITIES LITIGATION

ERISA Class Action Over Mismanagement Of Quest Diagnostics 401(k) Moves Forward

A New Jersey Federal Judge has denied a motion to dismiss filed by Quest Diagnostics, Inc. in a class action over mismanagement of their 401(k) plan. Quest moved to dismiss the lawsuit in December 2020, claiming that the plan participant plaintiffs lacked standing to sue and had failed to adequately allege a breach of fiduciary duty.  The case is In re Quest Diagnostics ERISA Litigation (case number 2:20-cv-07936) in the U.S. District Court for the District of New Jersey.

The lawsuit, originally filed in June of 2020, alleges that Quest was either too passive or “asleep at the wheel” when selecting investments and service providers for the plan, costing participants millions of dollars through poor investment performance and excessive fees.  As the Plan sponsor, the Employee Retirement Income Security Act of 1974 (ERISA) imposes a fiduciary duty on Quest to manage the Plan in the best interests of plan participants.

An ERISA fiduciary must see that plan funds are invested prudently and must monitor the investments to ensure that funds are not wasted on excessive fees and subpar returns.  The Profit Sharing Plan of Quest Diagnostics Incorporated (the Plan) had over 40,000 participants and had nearly $4 billion in assets under management as of December 31, 2018.

At the crux of the complaint are a group of investment funds selected by Quest and offered to Plan participants.  Quest included the Fidelity Freedom Funds as an investment option within the Plan.  The Freedom Funds are actively managed mutual funds, which means Fidelity selects investments within the fund and alters them to try to maximize returns. Alternatively, index funds are passively managed with a portfolio constructed to align with a major market index, such as the S&P 500.  The actively-managed mutual funds charge markedly higher fees than other investment options, which were born by the Plan, and, by extension, the participants.  Additionally, the Fidelity Freedom Funds, like other actively managed funds, have a track record of underperforming compared to index funds over the long term.

The complaint also alleges that the Plan paid Fidelity Investments fees for record-keeping services nearly double the national average for similarly sized, multi-billion dollar plans.  With approximately $4 billion in plan assets, Quest had immense bargaining power to negotiate lower fees with service providers but failed to do so.

Quest is not the only plan sponsor to face an ERISA class action over excessive fees and the inclusion of Fidelity Freedom Funds within their investment options.  Nearly 20 similar lawsuits have been filed against other employers across the country, including a complaint filed May 6 in Michigan federal court against the Bronson Healthcare Group, a hospital network whose 403(b) plan manages over $700 million in assets for its 11,000+ participants.

Lawyers in Beasley Allen’s Consumer Fraud and Commercial Litigation Section are active in litigation involving ERISA breach of fiduciary duty claims that harm American workers.  If you have information or concerns regarding how your plan is managed, contact James Eubank, a lawyer in the Section who handles securities litigation, at 800-898-2034 or by email at [email protected].

PHARMACY BENEFITS MANAGER (PBM) LITIGATION

Investigating Pharmacy Benefit Managers

Prescription drugs are more expensive in the United States than in any other country globally, and many state governments have been keeping an eye on Pharmacy Benefit Managers (PBMs) for the rising drug costs.  PBMs are the middleman between drug makers, pharmacies, and healthcare benefit plans, and they have been accused of keeping drug prices high to pad their own pockets. The major PBM players in the United States include companies like Express Scripts, CVS Caremark, and OptumRX.

While state legislatures have been enacting legislation to regulate PBMs and help mitigate the increased drug spending, states also have to investigate PBMs and recoup any overspending. Over the years, Beasley Allen has represented eleven states in various types of complex healthcare litigation and we are investigating PBM claims on behalf of private and governmental plans.

States spend tens of millions of dollars each year paying for healthcare and pharmacy benefits on behalf of state employees and Medicaid beneficiaries.  In some instances, states may contract out some of the claims processing duties to third parties, like PBMs and Third Party Administrator) (TPA). For example, with a self-funded state employee benefit plan, the state pays all of the bills but hires a PBM to manage the pharmacy benefits and/or a TPA to manage the health benefits. As the number of Medicaid beneficiaries increases each year, some states have contracted with PBMs to assist with processing their millions of Medicaid claims.  PBMs are supposed to be using their negotiating power to decrease prescription drug costs and then pass their savings on to patients and plan sponsors. Unfortunately, PBMs are alleged to have been inflating overhead costs, overcharging administrative fees, increasing drug costs, and pocketing the savings.

For example, PBMs and TPAs have been accused of engaging in deceptive practices to recover excess monies from medical provider clawbacks and secret drug manufacturer rebates. Any money that these middlemen recover is typically required to be passed on to the state since it is the state’s money that funds the benefits.  However, not all of the money collected is being passed through to the state and its employee plan or the Medicaid program. Instead, the money is being pocketed by the PBMs and the TPAs as pure profit.

PBMs and TPAs claim they pass the recovered money back to the state to lower costs to the taxpayers, but that is not always the case. The problem is that these clawbacks and rebates are hard to decipher, and states do not know how much of the recovered funds are being used to lower the state’s costs versus how much is being pocketed by the PBMs and TPAs. Retaining any of the state’s money in violation of their contractual obligations to pass through the savings is an unlawful practice that keeps healthcare costs high for state taxpayers.

Spread pricing by PBMs is another deceptive practice that has been highly scrutinized for its role in increasing prescription drug costs.  Spread pricing is when the PBM contracts with its client, for instance, a state or its Medicaid program, to be reimbursed at a certain rate for a prescription drug while negotiating a lower rate for that same drug with the pharmacy being paid to dispense the drug. The PBM pockets the difference between what the state or its Medicaid program reimburses the PBM and what it pays the pharmacy (the spread) as pure profit. However, PBMs cannot use spread pricing to upcharge, which ultimately increases prescription drug costs for the state.

Over the years, Beasley Allen lawyers have handled countless complex healthcare cases and continue investigating PBMs for exploiting the lack of transparency and competition, which has ultimately led to increased costs of prescription drugs for states. Our firm welcomes the opportunity to investigate potential PBM misconduct committed against private and governmental clients, including states and their health and pharmacy plans.

If you have any questions about our firm’s healthcare litigation practice, including PBM matters, contact Dee Miles, Ali Hawthorne, or James Eubank, lawyers in our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at [email protected], [email protected], or [email protected].

THE NATIONAL SCENE

The Colonial Pipeline Hack –A Wake-Up Call On Cybersecurity Needs

The major ransomware attack that shuttered the largest refined petroleum products pipeline system in the country put the pipeline industry on alert over potential liability from future hacks. The industry is also and bracing for new requirements from federal regulators and lawmakers that will surely come about.

While this attack was also a wake-up call for the pipeline industry, it was a wake-up call for other industries and the federal government. The attack further underscores the vulnerability of pipelines and other U.S. energy infrastructure, according to numerous cybersecurity experts. The inability of both the pipeline industry and the U.S. government to protect against ransomware attacks is quite apparent. There is an urgent and obvious need to shore up a response to such attacks.

Colonial Pipeline Co. was able to restore operational service on May 12. The system was shut down on May 7 following the cyberattack by a criminal hacking outfit in Russia. Colonial Pipeline paid a ransom of $4.4 million, which could windup being a bid mistake for the industry.

It is quite probable that there will be litigation arising from the Colonial Pipeline attack. That could be over the hack itself and the resulting disruption to the pipeline’s operations, which run from Texas to northern New Jersey. Other companies must be sure they have sufficient cybersecurity and contractual protections in place. The pipeline industry is believed by many experts to be an especially ripe target for hackers.

The pipeline industry can also expect a push for future regulation. An executive order on cybersecurity standards was issued by President Joe Biden last month. However, it will take much more to deal with a monumental problem that won’t go away overnight. We are in for the long haul in this battle.  Congressional hearings and new legislation will surely come about very soon. The following information relating to a relevant survey was published on Law360:

A survey of 125 midstream oil and gas company officials published in January by Jones Walker LLP found that while 40% of companies reported an attempted or successful data breach in the past year, only 7% updated their written security policies. The same survey found that just 38% of companies will increase their cybersecurity budget this year and 74% don’t have cybersecurity insurance or coverage for cybersecurity breaches, even as more work is done remotely because of the COVID-19 pandemic.

With 90% of the nation’s 3 million miles of oil and gas pipelines in private hands, a lack of intra-industry and industry-government collaboration on cybersecurity issues is a recipe for future attacks that could be even more damaging than the Colonial Pipeline one, said Andy Lee, who leads Jones Walker LLP’s privacy and data security team and co-authored the survey report.

Unfortunately, there will be more activity by hackers. It’s abundantly clear that hacking into systems such as the Colonial Pipeline creates a national security threat. There are many other likely targets, with many of them affecting national security. We will continue to monitor this matter closely.

Source: Law360.com

Another Urgent Need For America

Without a doubt, 2020 was not a good year for all too many people in our country. Still, there are takeaways and lessons to be learned from the crippling effects of the pandemic. From infrastructure to caregiving to jobs and the economy, the pandemic pulled back the superficial layers of these various systems and revealed tremendous weaknesses. The need to address these issues can overwhelm and further divide us or renew the eager and optimistic spirit that has driven our country for over two centuries. President Biden, when announcing his American Jobs Plan (AJP) last month, reassured us that despite the deep division and weariness of an ongoing pandemic, we still have that potential as a nation “to reimagine and rebuild a new economy.”

The AJP is fashioned similar to the pandemic relief package lawmakers passed in March to assist many Americans struggling to regain their economic footing due to the COVID-19 pandemic. The AJP is seen as a once-in-a-generation investment that will create millions of quality jobs, rebuild our country’s infrastructure, and help the U.S. compete on a global level.

We expect there will be substantial changes to the plan. But in its present form, among other things, the plan will:

  • Fix highways; rebuild bridges; and upgrade ports, airports, and transit centers.
  • Rebuild clean drinking water infrastructure, renew the country’s electric grid, and provide high-speed broadband to all Americans.
  • Modernize homes, commercial buildings, schools, and federal buildings.
  • Create caregiving jobs and raise wages and benefits for essential home care workers.
  • Revitalize manufacturing, ensure products are made in America and invest in innovation.

President Biden looks to pair the American Jobs Plan with the Made in America Tax Plan. Together, they are designed to move the country towards a fairer tax code that encourages investment in the U.S., protects domestic jobs and profits from shifting overseas, and holds corporations accountable for their fair share of taxes. Additionally, it’s projected that the American Tax Plan would ultimately pay for the AJP within 15 years.

The plan is currently being discussed by all segments of the political landscapes. There has been a great deal of negotiating between members of the U.S. Senate and the Biden Administration. A counter-proposal from the GOP was unveiled on May 26. Hopefully, this bi-partisan effort will result in a workable bill. Nobody can argue that there is a tremendous and obvious infrastructure need in every state. It will be difficult to justify members of Congress opposing the bill solely from a partisan perspective.

While electricity, automobiles and rockets were critical in shaping the last century, it’s quite apparent that “[s]oftware, data, electronics and biology are changing the world” today. It is necessary to update and improve the existing infrastructure because, despite our status as the wealthiest country in the world, the United States ranks 13th in overall quality of infrastructure. After decades of defunding, our roads, bridges, electrical grid, schools and public transit centers are in deplorable condition. Further, it is unlikely that our electrical grid could withstand a catastrophic outage. Many of our neighbors lack access to affordable, high-speed internet, which is no longer a luxury but absolutely necessary.

However, work cannot stop with just updating existing infrastructure. As the White House explained, many Americans lack access to quality housing and the last year “led to job losses and threatened economic security, eroding more than 30 years of progress in women’s labor force participation.” The past year also uncovered the vulnerabilities of our caregiving system – long-term care for the elderly and disabled and our healthcare system. We are lagging behind competitors in research and development and manufacturing and training. The list goes on, and the mountain of challenges is steep. For too long, we have sacrificed the needs of many marginalized people in our country for the self-seeking ambitions of those already privileged to enjoy the best our country can offer.

Reflecting on the success stories of the recent past, we see that the common thread is the eager American spirit and a sense of doing what is right for the greater good – our communities and country – rather than external motivation in response to the “what’s in it for me” mentality. Once again, we are at crossroads, and our country’s future hangs in the balance. It may not be as obvious, but now is this generation’s “Ask not what your country can do for you but what you can do for your country” moment. That question is just as fitting today as when President John F. Kennedy first asked it in 1961.

Sources: President Joe Biden (U.S. Whitehouse/Office of the President) and USA Today

INSURANCE LITIGATION

GEICO Must Pay $2.7 Million In Bad Faith Lawsuit

The Georgia Supreme Court has issued a significant ruling in a bad-faith lawsuit involving GEICO Indemnity Co. The case arose out of Georgia’s refusal to settle a bodily injury claim for $30,000. Now the company will have to pay more than $2.7 million. The high court’s 7-0 decision answered three certified questions posed by a federal appellate court, effectively finding that GEICO is liable for bad faith under Georgia insurance law. The ruling clears the way for the 11th Circuit Court of Appeals to order GEICO to pay a jury award in favor of an injured bicyclist.

In February 2012, Bonnie Winslett struck Terry Guthrie’s bicycle while driving her friend Karen Griffis’ Ford Explorer to a store, causing back and neck injuries. GEICO had the liability coverage for the Griffis vehicle. The insurer wrote a letter to Ms. Winslett stating that the policy insured her and that GEICO was responsible for the accident. However, Griffis didn’t give her any other instructions.

Ms. Guthrie’s lawyers demanded that GEICO settle her claim by paying the $30,000 limit of Griffis’ policy. In response, GEICO offered $12,409. Ms. Guthrie’s lawyer never responded to that offer. Instead, he filed a lawsuit against Ms. Winsett. A paralegal for the lawyer told her to notify GEICO about the suit, but Ms. Winslett never did. She discarded the summons and failed to appear in court.

The decision set in motion a series of events that brought Ms. Guthrie’s bodily injury claim right back to GEICO. The Muscogee County Superior Court entered a default judgment of $2,916,204 against Ms. Winslett. Then Ms. Guthrie filed a petition that forced Ms. Winsett into involuntary bankruptcy. The bankruptcy trustee, Fife Whiteside, filed a lawsuit in federal court alleging that GEICO negligently or in bad faith failed to settle its policyholder Guthrie’s claim against Ms. Winslett. In Columbus, a jury for the U.S. District Court found that GEICO acted in bad faith by failing to pay Ms. Guthrie’s $30,000 settlement offer and assigned 70% of the liability for the default judgment to the carrier. Ms. Winslett was blamed for the remaining 30%.

Under Georgia law, a carrier that refuses to accept a reasonable settlement offer can be held liable for damages over the policy limit. With interest, the judgment in favor of Ms. Winslett’s bankruptcy estate is worth $2.7 million, according to the Supreme Court’s opinion. GEICO appealed, which prompted a panel of the 11th Circuit to ask the Georgia Supreme Court three questions. In summary, those were:

  • When an insurer has no notice of a lawsuit against its insured, does Georgia law relieve the insurer of liability from a follow-on suit for bad faith?
  • If the notice provisions do not bar liability for a bad-faith claim, can an insured sue the insurer for bad faith, when after the insurer refused to settle but before judgment was entered against the insured, the insured lost coverage for failure to comply with a notice provision?
  • Does a party have the right to contest actual damages in a follow-on suit for bad faith if that party has no prior notice of or participation in the original suit?

GEICO argued that it should not be held liable because it received no notice of the lawsuit against Ms. Winslett, but the Supreme Court said the carrier should have paid better attention. GEICO’s adjuster did not advise Ms. Winslett to notify the company of any legal documents she received, even though Geico’s claims manual advises adjusters to do so. What’s more, the carrier could have foreseen that Ms. Winslett was unstable. She had been cited for driving without a license and was living in an apartment with no electricity and no furniture, other than a mattress on the floor.

The Supreme Court answered the 11th Circuit’s first and second questions with a “qualified” yes. The court said the questions might have been answered differently under a different set of facts. The Supreme Court answered the third question with a firm “no.” Georgia law clearly makes insurers that wrongfully refuse to settle a claim liable for damages equal to the amount of any judgment, regardless of whether that amount exceeds policy limits, the opinion says. The ruling allows the 11th Circuit to issue a final ruling in the lawsuit filed by Columbus attorney Fife Whiteside on behalf of Winslett’s bankruptcy estate.

Source: Claims Journal

THE CONSUMER CORNER

DOL Changing Independent Contractor Classification

Effective May 7, 2021, the U.S. Department of Labor (DOL) withdrew the Independent Contractor Rule established by the DOL under the Trump Administration. The Biden Administration had previously delayed the effective date under a regulatory freeze on all classification rulings issued immediately before transferring leadership within the department.

Predictably, there was substantial Corporate support for the proposed rule. That’s because it would have given companies greater flexibility in classifying workers as independent contractors. That classification essentially allows greater freedom in tandem with corporate wealth by prioritizing: (1) the nature and degree of control over the work and (2) the worker’s opportunity for profit or loss as “core factors” in determining employment status.

Independent contractors are not entitled to minimum wage and overtime protections afforded to employees under the Fair Labor Standards Act (FLSA). Equally important, employees have rights against discrimination under Title VII, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and other statutes that independent contractors do not enjoy.  And employees have rights to employee benefits from which independent contractors may be excluded.

The rule’s withdrawal triggers the agency’s reverting to previous guidance from the Wage and Hour Division that evaluates several factors holistically, including whether the work performed is essential to the business, how permanent the relationship is and how much control the company exercises to determine whether a worker is an independent contractor or employee under the FLSA. The “economic realities” balancing test has been considered precedent within federal and state courts and the DOL itself for years before the previous administration’s proposal. The independent contractor rule would have determined a worker’s status only under the FLSA, but several other federal and state laws rely on its definition.

Independent contractor classification likely will continue to garner interest and scrutiny from both employers and employees so long as it remains abstruse within the gig economy and Congress remains attentive to worker classification. For the second time in two years, the U.S. House of Representatives in March passed the Protecting the Right to Organize Act (PRO Act) which would presume an individual is an employee unless the company can demonstrate that the person is free from its control, performs work outside its line of business and operates as an independent firm as part of a sweeping overhaul of the National Labor Relations Act.

When employers are allowed to prioritize profits over people, they ransom the dignity and devalue their employee as a person.  Beasley Allen lawyers are privileged to have the opportunity to recover rightful wages and benefits earned by hardworking employees against employers violating federal and state employment laws. If you believe your rights as an employee have been violated, our firm is eager to investigate and pursue a claim on your behalf. You can contact any of our firm’s employment lawyers, Lance Gould, at [email protected], Larry Golston at [email protected], Leon Hampton at [email protected] and Lauren Miles at [email protected], or at 1-800-898-2034.

2nd Circuit Clarifies Data Breach Injury Standing Threshold

The Second Circuit Court of Appeals recently clarified standing in data breach cases by finding that the risk of identity theft after a data breach may be grounds to sue; however, it affirmed the dismissal of a proposed class action against a veteran’s health services company over an accidentally sent email that contained workers’ Social Security numbers, saying the class effort fell short.

In a 21-page opinion, a unanimous three-judge panel held that plaintiffs may establish Article III constitutional standing based on the theory that the cybersecurity breach put them at an increased risk of identity theft or fraud, if the data is sensitive and has been misused or if there is reason to believe it will be misused. Despite clarifying this standard, the panel said in the instant suit that plaintiff Devonne McMorris didn’t show that her personal identifiable information (PII) had been compromised in a way that met this bar. The Second Circuit noted:

Because McMorris did not allege that her PII was subject to a targeted data breach or allege any facts suggesting that her PII (or that of any others) was misused, the district court correctly dismissed her complaint for failure to establish an Article III injury in fact.

The ruling marks an end to a proposed class action that McMorris, Sean Mungin and Robin Steven filed in July 2018 against the veteran mental health services provider Carlos Lopez & Associates LLP, which contracts with the U.S. Department of Veterans Administration in Lincoln, Maine, and its owner, Carlos Lopez. The workers sued after an employee accidentally sent a companywide email to approximately 65 workers with a spreadsheet containing personal information — including Social Security numbers, home addresses, dates of birth, telephone numbers, educational degrees and dates of hire — of roughly 130 current and former employees.

The workers accused the employer of negligence and violating consumer protection statutes in California, Florida, Texas, Maine, New Jersey and New York. Although the complaint doesn’t allege the workers’ identities were stolen, it claims they were harmed because they had to spend time canceling credit cards, considering applying for new Social Security numbers and buying credit monitoring and identity theft protection services.

In December 2018, the employer filed a motion to dismiss, arguing the workers weren’t injured by the email and therefore they didn’t have standing to sue. But before the trial judge ruled on the motion, the parties agreed to a settlement. In a hearing on the proposed settlement, U.S. District Judge Jesse M. Furman said he was inclined to dismiss the case because there was no evidence that the employees’ identities were stolen or misused. The disclosures appeared to be accidental and not malicious, and he ultimately denied the settlement in November 2019, finding the court lacked jurisdiction because the workers didn’t have standing to sue. The judge adding it was “arguably a misnomer to even call this case a ‘data breach’ case,” since, “at best, the data was ‘misplaced.’”

McMorris appealed the denial, and the Second Circuit panel said it agreed with sister circuits that have found plaintiffs may establish standing based on an increased risk of identity theft or fraud following the unauthorized disclosure of sensitive data if those breaches were the result of targeted attacks or if some of the data was misused. However, the panel concluded the workers in the instant suit hadn’t shown they were at an increased risk of identity theft, and the cost of taking proactive measures to prevent future identity theft isn’t enough to constitute an injury, in fact. The opinion states:

Where plaintiffs ‘have not alleged a substantial risk of future identity theft, the time they spent protecting themselves against this speculative threat cannot create an injury. This notion stems from the Supreme Court’s guidance in Clapper, where it noted that plaintiffs ‘cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.

Although plaintiffs were not successful in this case, the silver lining of the case is that the Second Circuit recognizing the harm in data breach incidents is a positive step in analyzing standing for these types of data breach cases.

If you have any questions, contact Leslie Pescia, a lawyer in our Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at [email protected].

Consumer Groups To Share $11 Million Dish TCPA Verdict Leftover

Legal and consumer advocate groups will receive about $11 million in unclaimed funds from the roughly $61 million that Dish Network was forced to pay for making illegal telemarketing calls. This came about due to a North Carolina federal judge agreeing that it would be the best use of the money.

U.S. District Judge Catherine C. Eagles approved the Special Master’s plan for disbursement of unclaimed funds after previously ruling that Dish Network couldn’t claw back the money and that neither could other class members claim the excess funds. Judge Eagles also rejected suggestions that the federal government take the money. The judge said in her order:

The special master has identified several potential cy pres recipients with new and ongoing projects that would provide substantial benefit to those class members who have not claimed their share of the judgment. These benefits are more targeted to the needs and interests of the class than federal escheat.

The funds will be paid out in two rounds. The first will pay out all the excess funds that are currently unclaimed, and the second will split up and send off any money left over from uncashed checks. The largest amounts of money will go to the National Association of Attorneys General and the National Legal Aid and Defender Association — $2 million and some $3.4 million respectively — with the rest being split between consumer advocacy groups like the National Consumer Law Center, the Electronic Privacy Information Center and Public Knowledge.

The cy pres doctrine allows courts to amend legal documents so they can be enforced as closely as possible to the contract, will or settlement’s original intention when it can’t be followed to the letter. Nearly 5,000 class members were never identified, but their damages were factored into the $61 million judgment that Dish was ultimately hit with after being found responsible for thousands of illegal telemarketing calls made on its behalf.

A $20 million verdict was returned against the satellite company in 2017. Judge Eagles trebled that verdict later that year after discovering that Dish Network had “repeatedly looked the other way” when one of its marketers was making illegal telemarketing calls. Dish filed a series of post-trial motions trying to get the verdict reduced down in the intervening years. Still, Judge Eagles rejected each of the company’s attempts, which the judge once billed as a bid to “avoid the consequences” of the jury’s decision. Judge Eagles also took the company to task for wasting the court’s time after the court granted Dish a reprieve to address its issues with the identity of some class members.

The consumers are represented by Brian A. Glasser and John W. Barrett of Bailey & Glasser LLP, J. Matthew Norris of Norris Law Firm PLLC, Matthew P. McCue of The Law Office of Matthew P. McCue, and Edward A. Broderick and Anthony Paronich of Broderick & Paronich PC.

The case is Krakauer v. Dish Network LLC (case number 1:14-cv-00333) in the U.S. District Court for the Middle District of North Carolina.

Source: Law360.com

Pharmacy Chains Under Scrutiny After Using Vaccine Patients’ Personal Data

Three major pharmacies are under scrutiny in Massachusetts due to Attorney General Maura Healey’s investigation of  the companies collecting and using personal data from their COVID-19 vaccine recipients. Attorney General Healey wrote to the pharmacies asking for an explanation of what data was collected and why it was collected.  Specifically, the pharmacies were asked seven questions about whether they plan to use the data for commercial purposes, whether the data is being stored securely and separately from general customer information, and what disclosures were made to consumers as they made their accounts and/or signed up for the vaccine?

The investigation began after the Attorney General received reports that personal information had been collected and consumers complained the personal data was not necessary for administering the vaccine. These consumers were concerned that the personal data was being collected for reasons utterly unrelated to the vaccine, such as for marketing or other commercial purposes.  The three pharmacies under investigation are CVS, Walgreens, and Rite Aid.

The letter and investigation into these pharmacies follow an April 2021 letter the Data Privacy and Security Division received warning that a line is being blurred between effective administration of the vaccine done for public health and the pharmacies commercial goals.  In this letter, the Electronic Privacy Information Center (EPIC) stated, “[w]e are specifically concerned about the collection and use of personal data for commercial purposes unrelated to the administration of these life-saving vaccines.”

The EPIC pointed to a directive from the U.S. Centers for Disease Control and Prevention that prohibits providers from using any data gathered in the course of their participation in the CDC COVID-19 vaccine program for commercial marketing purposes.  The prohibited information includes protected health information or other personally identifiable information.

Walgreens’ senior director of external relations, Fraser Engerman, stated that customers who schedule a COVID-19 vaccine become a patient of Walgreens pharmacies.  Engerman claimed any information collected is protected, used and disclosed in accordance with HIPAA.  Specifically, the patients’ vaccine record becomes a component of a patient record subject to state and federal requirements. Engerman recognizes that HIPAA prohibits the sale of protected health information without explicit written patient consent.

CVS’ senior director of corporate communications, Mike DeAngelis, states that patients are asked for demographic information such as race, ethnicity, age, and location.  DeAngelis claims their information is sought as a part of the data reporting requirements to the CDC.  CVS agrees all of the information collected through their online scheduler is protected health information and subject to HIPAA. According to DeAngelis, CVS does not require patients to create an account or join any rewards program.  He also claims they “do not use information collected during the vaccination registration process to market front store items or loyalty programs.”

At press time, representatives for Rite Aid had not responded concerning the investigation and the allegations against them.

We will keep our readers posted on the Attorney General’s investigation and any further developments relating to this matter. In the meantime, we will be glad to answer any questions you might have regarding this issue. You can contact any of our Consumer Fraud & Commercial Litigation Section lawyers, but specifically Courtney Horton at [email protected] or Leslie Pescia at [email protected], both lawyers in the Section.

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

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

The following are the current case activity listings for the Beasley Allen sections:

Business Litigation

  • Antitrust
  • Business Interruption Insurance
  • Commercial Disputes
  • Intellectual Property
  • Pharmaceutical Pricing
  • States & Municipalities

Consumer Protection

  • Class Actions
  • Insurance Disputes
  • Pension Plans

Defective Products

  • Defective Airbags
  • Defective Tires
  • E-Cigarette Explosions
  • Heavy Truck Defects
  • JUUL Vaping Devices
  • On-the-Job Injuries
  • Talcum Powder

Employment Law

  • Fair Labor Standards Act
  • Sexual Harassment
  • Whistleblower
  • Workplace Discrimination
  • Workplace Retaliation

Medical Devices

  • Hip Replacements
  • Knee Replacements
  • Physiomesh

Medication

  • Belviq Cancer
  • Proton Pump Inhibitors
  • Zantac Cancer

Serious Injuries

  • Truck Accidents
  • Auto Crashworthiness
  • Aviation Accidents
  • Heavy Equipment Injuries
  • Premises Liability
  • Sexual Abuse
  • Single Vehicle Accidents

Toxic Exposure

  • Benzene
  • Environmental Exposures
  • Mesothelioma
  • Roundup
  • Water Contaminations
  • Paraquat

The cases in the categories listed above are handled by lawyers in the appropriate section at Beasley Allen. The sections are Personal Injury & Products Liability, Mass Torts, Toxic Torts and Consumer Fraud & Commercial Litigation.

Resources to Help Your Law Practice

Beasley Allen has been recognized as one of the country’s leading law firms representing only claimants involved in complex civil litigation. We are both honored and humbled to have received that recognition. Beasley Allen has truly been blessed, and we understand the importance of sharing resources and teaming with peers in our profession. The firm is committed to investing in resources, including books authored by our lawyers, to help our fellow lawyers. For those looking to work with Beasley Allen or simply seek information that will help their law firm with a case, the following are among our most popular resources. The names of the books and the authors are set out below.

Aviation Litigation & Accident Investigation

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

Nursing Home Abuse & Neglect Brochure

Long-term care facilities, including nursing homes, are rife with abuse and neglect and alarmingly high underreporting rates. To assist families and lawyers pursuing justice for victims, Beasley Allen has prepared a brochure with information to help identify the signs of abuse and neglect and advice about how to file a claim.

Co-Counsel E-Newsletter

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

The Jere Beasley Report

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

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

PRACTICE TIPS OF THE MONTH FOR TRIAL LAWYERS

Trial Tips From Beasley Allen Lawyers

Liz Eiland, a lawyer in our Mass Torts Section, gives some suggestions on case management involving the use of technology. This will help some of us who need help in this critically important area. Let’s see what Liz has for us.

Practice Tip – Case Management Software

When it comes to representing clients competently and zealously, “the devil is in the detail.” Fortunately, there are more choices than ever when it comes to case management software that will help you manage all of those details.

In the world of mass torts litigation, case management software is crucial.  Beasley Allen has been working with ProLaw for many years now.  ProLaw is indispensable for intake and investigating new cases, thanks to checklists and queries that we can use to ensure that we have all of the documents we need (everything from a signed fee contract to medical records documenting the client’s injury).  We also use it to track litigation dates and deadlines.

Additionally, through that program, we can quickly compile information about our entire client population – injury dates, diagnoses, treatment received, track any number of risk factors, and pull information about the jurisdiction for each case.  This data allows us to represent the best interests of each of our clients when it comes time for settlement negotiations.

For those who haven’t yet made the switch to case management software, it may sound like an unnecessary expense for practices that focus on single-event litigation or transactional matters.  However, according to the ABA, the most common complaint that clients have about their lawyers relates to communication.  Case management software can help by: reminding you to send update letters at pre-set intervals and providing checklists and follow-up reminders for processes like obtaining a signed fee contract at the outset of representation and sending a termination letter at the end.

If you are in the market for case management software, at a minimum, a solid case management program should offer:

  • Secure, cloud-based document management
  • The ability to create and store form and document templates
  • Customizable checklists
  • Integrated timekeeping and billing capabilities
  • Integrated calendar and scheduling functions

Also, keep in mind that your state bar has likely negotiated discounts with some case management software providers.  Clio, CosmoLex, and MyCase offer discounts to Alabama State Bar members.

For those already on board with case management software, call your client representative and schedule an appointment to talk to them about how you are currently using their software.  Odds are, there are capabilities that you are not using that could further streamline your practice.  Challenge yourself to learn something new about your case management program at least once each year.

If you have any questions or need more information, contact Liz Eiland at 800-898-2034 or by email at [email protected].

RECALLS UPDATE

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

BEASLEY ALLEN EMPLOYEE SPOTLIGHTS

Tristen Chandler

Tristen Chandler has been with the firm for two and a half years. She is a Legal Secretary in our Consumer Fraud & Commercial Litigation Section. She is responsible for contacting clients to obtain additional information and documents related to potential claims assigned to our lawyers and assisting with other firm matters.

Tristen’s family lives in Utah. She has two younger brothers. Tristen says her Grandfather Lew Chandler is the person she looks up to the most in the world. Tristen got engaged in February and is tentatively planning to get married in April 2022.

In her spare time, Tristen says she enjoys refinishing furniture and doing yard work.  She and her fiancée go to Columbiana for drift events and amateur racing events in Mobile and Pensacola.

When asked what she enjoys most about working at Beasley Allen, Tristan says, “the sense of purpose that it gives me. Working for a company centered around helping people really makes you feel like what you do matters.  It kind of gives you an extra push to try harder and do more when you know that you are helping to create a positive impact in someone’s life.”

Lydia French

Lydia French, an Intake Specialist in our Mass Torts Section, has been with the firm for almost three years. She guides the Section’s clients in the initial process of starting their claims.  She is also bilingual and is Beasley Allen’s primary contact for our numerous Spanish-speaking clients.

Before working with Beasley Allen, Lydia lived in Roatan Island, Honduras, as a Missionary, working with a low-income clinic. Her family moved to Latin America when she was three years old to work in the mission field. Lydia was 15 years old when the family moved to Roatan Island. They presented life values with puppet skits, hosted youth camps, children’s campaigns, and fed the community children. Her parents, siblings, and brother-in-law are still in Honduras.

Lydia and her husband, Landon, live in Prattville. They will welcome their first child, Laikyn LaNae, on August 5. Outside of work, Lydia says she enjoys shopping on Amazon, fishing tournaments with her husband, and playing volleyball.

Her favorite thing about working with Beasley Allen, according to Lydia, is getting to work with a great team and the satisfaction of knowing she is helping others. She says Beasley Allen has helped her achieve her goal of working in an environment where she is helping people.

Lydia is a hard-working, dedicated employee whose job is critically important. The outset of the litigation process must be done promptly and efficiently. We are fortunate to have Lydia with the firm.

Trisha Green

Trisha Green is a lawyer in the firm’s Toxic Torts Section. She is currently working on the extremely important Roundup litigation. We currently represent 3,500 clients in that litigation.

Before joining the firm, Trisha started as a public defender and worked on criminal cases ranging from misdemeanors to capital murder charges. She has also handled collections, workers’ compensation claims and was an Assistant Attorney General in the Governmental Affairs Division of the Missouri Attorney General’s Office.

Trisha says she participated in a mock trial in the sixth grade and was immediately hooked on being a lawyer. She says, “I like telling stories, knowing the rules and helping people, so this is the perfect profession for me. My favorite part of practicing law is helping others, especially those with limited resources.”

Trisha graduated from Rockhurst University in Kansas City, Missouri, earning a Bachelor of Arts degree in philosophy with a minor in theology. During undergrad, Trisha worked as an ammunition inspector. She earned her law degree from the University of Missouri School of Law, graduating with honors for her pro bono and public interest work. While in law school, Trisha was Vice President of the Environmental Law Society and interned with a City Council member. She also studied abroad in Ireland.
Trisha is a member of the Alabama, Kentucky, and Missouri State Bars and the American Bar Association. She volunteers with the Georgia Innocence Project, working on the Alabama cases because Alabama does not have an Innocence Project chapter.

The Missouri native says she and her family moved to Alabama to escape the snow. Trisha and her husband Casey, who is also a lawyer, met while they were working at the Public Defender’s Office. They have a son Jasper who is 5-years-old. Trisha explains that their decision to move to Alabama was random, but she now loves the state.

Although new to the firm, Trisha says she enjoys working at Beasley Allen because “everyone is so kind and friendly while doing important work that helps people.”

We are fortunate to have Trisha with the firm. She has worked hard on the Roundup Litigation and has done an excellent job for our clients.

William Sutton

Will Sutton began working for Beasley Allen in the Consumer Fraud & Commercial Litigation Section as a law clerk in his second year of law school, where he assisted lawyers in consumer fraud litigation and Fair Labor Standards Act litigation. After graduating from law school, Will began working full-time as a lawyer in the firm’s Toxic Torts Section. In September 2013, Will left the firm to serve as legal counsel for the Alabama Secretary of State’s office. While there, he gained wide-ranging civil litigation experience. Will rejoined Beasley Allen in September of 2015.

Will represents clients in various civil litigation matters, centering on products liability, mass torts, and toxic tort cases. Currently, he is involved in the very important roundup litigation. Will represents individuals who have been severely injured from exploding consumer products and individuals who have been exposed to Roundup and developed non-Hodgkin’s lymphoma. He also represents local governments in the nationwide opioid litigation and veterans in the national 3M Combat Arms earplugs litigation.

“The main reason I became an attorney was that I saw it as an opportunity to help people,” Will explained when asked why he chose to become a lawyer. “I also have always enjoyed reading, writing, and analysis.”

Will has worked on cases involving people with cancer with occupational and environmental exposure to toxic chemicals. He has developed a comprehensive knowledge of the scientific and medical issues unique to this area of practice. Further, Will represented individuals and businesses in Alabama, Florida, Mississippi, and Louisiana, where he helped them recover millions of dollars in compensation for the losses they suffered following the explosion of the Deepwater Horizon oil rig and the resulting devastating BP Oil Spill.

While there are several things Will loves about his career choice, he says, “I am proud to help families that truly need it. I enjoy assisting them with what is usually one of the greatest problems that they will encounter in their lives.”

Will was selected for the Top 40 Under 40 designation by the American Academy of Attorneys for the Personal Injury Law section in Alabama for 2019. Attorneys receiving this designation are rising stars and have top-tier skills and ethics. Additionally, he has been selected to the National Trial Lawyers Association’s Top 40 Under 40 for Civil Plaintiffs.

Will is a member of the Georgia Bar, the Alabama State Bar, the Alabama State Bar Young Lawyers Section, the Montgomery County Bar Association, and the Autauga County Bar Association. He is a member of the Attorneys Information Exchange Group (AIEG) and the American Association for Justice, where he serves on the e-Cig Litigation Group, the Section Toxic Environmental & Pharmaceutical (STEP) Section and the Products Liability Section. Will is also a member of the Tennessee Association for Justice and is involved in toxic tort seminars and conferences.

The Auburn University graduate earned a B.A. in political science in 2007. Will earned his J.D. at Faulkner University Thomas Goode Jones School of Law in May 2010. While attending law school, he studied international law abroad at the University of Amsterdam.

Will says he enjoys working at Beasley Allen. He says, “Everyone in the firm is focused on helping one another, which helps put the firm in a better position to help our clients.” We are truly blessed to have Will with the firm.

Amanda Tindall

Amanda Tindall, who has been with the firm since February 2019, is currently a back-office Legal Secretary in the Mass Torts Section. Amanda works with the lawyers and legal support staff to ensure that files are kept updated and that all deadlines are met, including seeing that letters are sent out accordingly and on time and helping with scheduling for lawyers and support staff.

Amanda is married to Chris, and they have been married for 15 years. They have a daughter, Kindsey Grace, who will turn 14 in June. Amanda says they all love being outside, and their favorite activities include going to NASCAR races, camping, swimming, grilling, and gardening. Amanda’s family has a Shih Tzu named “Bristol” and two fish, “Bocephus” and “Sydney.” Amanda is very close to her family, and she says that she is thankful that her parents live just down the street. Amanda has a brother and sister-in-law, and she says that her “Grannie,” who is 95 years old, is her heart and soul.

When asked what her favorite thing is about working at Beasley Allen, Amanda says, “the people I work with are amazing. I have never worked somewhere where I felt so appreciated, and everyone is treated so graciously. People respect each other and are so compassionate. I feel very blessed to have found my home at Beasley Allen.”

Amanda is a hard-working, dedicated employee in the Mass Torts Section. This Section is very active, with a number of significant projects ongoing. We are fortunate to have Amanda with the firm.

SPECIAL RECOGNITIONS

LaBarron Boone On The Path That Led To Law Career And Record Verdicts

His mother’s advice and God’s guidance were the two defining forces that shaped Beasley Allen lawyer LaBarron Boone’s career and work as a trial lawyer. LaBarron recently spoke with Attorneys Information Exchange Group (AIEG) about the path that led to his successful law career, including product liability cases that resulted in record verdicts.

LaBarron, an AIEG Board Member and Executive Committee Member, said that he was working as an industrial engineer after graduating from Auburn University. Company leaders where LaBarron was working as an engineer decided that having in-house counsel would be better than hiring external lawyers. That was a pivotal moment for LaBarron. He impulsively raised his hand to volunteer to become the company’s lawyer, and before long, he was enrolled at the University of Alabama School of Law.

LaBarron said the decision to become a lawyer wasn’t just a personal challenge but one example of God leading him to his destiny. Growing up, his mother always told him, “do what you can to make the world a better place for you being here.” Those words and his faith became the guiding principles that eventually led him to become an early partner at Beasley Allen, where the firm’s motto “helping those who need it most” closely aligned with the advice from LaBarron’s mother.

That inspiration shared by all at our firm has led LaBarron and his fellow lawyers to record verdicts for clients harmed by defective products. Those cases include a $581 million verdict in a predatory lending case – the largest verdict of its kind in US history; a truck cab guard case that prompted sweeping regulatory changes in North America and abroad; and a Ford Explorer rollover case that exposed corporate wrongdoing and resulted in the largest product liability verdict in Alabama history. LaBarron had this to say:

This little boy from Alabama got the largest predatory lending verdict of $581 million in the history of the nation and the largest product liability verdict in the history of Alabama. You know that’s not me. That’s God’s work. It’s been an unbelievable ride and a blessing, and I thank God for everything he’s done for me.

LaBarron, who is in the prime of his legal career, has been a tremendous trial lawyer, and I predict that the best of the “Boy from Mobile” is yet to come!

Beasley Allen Lawyers Engage With Students For Annual Law Day

Alabama Gov. Kay Ivey presented Alabama State Bar President Bob Methvin with an official proclamation designating May 1 as “Law Day” in Alabama. Several Beasley Allen lawyers have volunteered their time to support this effort, including firm lawyers Warner Hornsby and Lauren James.

Warner and Lauren joined more than 100 other lawyers, judges, and law professors across the state to visit middle school classrooms, either virtually or in-person, to discuss the importance of the rule of law and explain how it continues to shape our nation and our lives. It’s critically important for all Americans, especially our young people, to understand and respect the Rule of Law and its critical importance to the future of America and its people.

Law Day is celebrated nationally and organized locally by the Alabama State Bar’s Lawyer in Every Classroom committee. The event celebrates the rule of law and provides an opportunity to understand how the law and legal process protect our liberty. Specifically, the event strives to illustrate how the law and legal process achieve justice and ultimately contribute to all Americans’ freedoms. This year’s theme is Advancing the Rule of Law Now. Warner made this observation:

I was fortunate enough to have many lawyers in the family, so critically thinking about legal aspects that occur in daily life, as well as ideological, legal concepts, were a common part of my life. It was important for me to give back a fraction of that experience. America needs great thinkers and great lawyers—hopefully, this little piece of volunteer work set a 7th grader on their path to becoming a great lawyer – someone who can dedicate their lives to helping people who need it most.

Warner said he was impressed by the students’ willingness to engage with the subject manner. He says:

I was nervous that, having never done this before and walking into a room of more than 20 students, most of the students would be bored. However, I was very happy to find that most of the students were eager to give their own experiences and understanding of how ‘the law’ has affected them, and I was proud of such young students’ willingness to engage in the discussion of the social contract that a law-based government really is.

We must all do our part to make sure that the rule of law is honored and followed by all Americans. Our future depends on it!

FAVORITE BIBLE VERSES

Ted Meadows, a lawyer in our firm, says that lately, there’s been a recurring theme in his daily devotions, and it really seems to center around being thankful even when things are not going according to his desires and plans.  According to Ted, 1 Peter 5:6-7 and 1 Thessalonians 5:18, verses furnished for this issue are good reminders for him.

Humble yourselves, therefore, under God’s mighty hand, that he may lift you up in due time.  Cast all your anxiety on him because he cares for you.  1 Peter 5:6-7

Give thanks in all circumstances, for this is God’s will for you in Christ Jesus. 1 Thessalonians 5:18

Mary Causey, a Human Resources Specialist in the firm, sent in the following verses for this issue:

The Lord is near to the brokenhearted and saves the crushed in spirit. Psalm 34:18

Blessed are those who mourn, for they shall be comforted. Matthew 5:4

Mary says there is one verse that has spoken to her the most, and that is from Galatians.

Bear one another’s burdens, and so fulfill the law of Christ. Galatians 6:2

Mary says:

Last month was Mother’s Day and was the first Mother’s Day in 38 years that I could not hug my Mom. God made her body whole and free from cancer on August 31, 2020. Losing any relative is devastating, but there is something about telling your Mom “see you later” that changes you. We can say “see you later” because our hope is in Jesus, and we know that we will see our loved ones again. A couple of verses that have brought me comfort while experiencing all the “firsts” without my Mom are:

After experiencing my deepest loss, I have learned that grief isn’t a solo journey, and deep loss is not meant to be experienced alone. We were created to live in community with one another and carry each other through life’s ups and downs. Helping someone can be uncomfortable and messy, and we are all fearful of saying the wrong thing. Friends, I would challenge you to push through those lies that satan tells you. There is transformation that happens for the giver and receiver when we say yes to helping those God has placed in our path and loving them as Jesus loves them.

But you know what God has taught me the most during this journey? When was the last time that I bore the burden of someone difficult to love? Luke teaches us in Luke 6:32, “If you love those who love you, what credit is that to you? Even sinners love those who love them.” So, I asked myself the question, “when was the last time that there was a difficult person in my life, and I withheld love from them during their hardest moment?” Are my actions saying that I deserve kindness and compassion from others, but I will be selective with who will receive my empathy and unconditional love? I remember talking to my Mom about a challenging person in my life, and she looked at me and said, “Doll, Jesus loves her just as much as He loves you.” Those words have stayed with me all these years, and I feel Mom whispering them to me as I write this devotion. She may be in heaven, but she is still teaching me and guiding me!

If there is one thing I know to be true, there is purpose in everything. God is always teaching us, molding us, shaping us. So, during this time of grief where I have accepted more kindness and love than I deserve, the conviction is on my heart to ask God to use me to show love to others even if they have hurt me, to carry the burden of those who are difficult to love. We never know what hangs in the balance when God asks something of us; it could be that person’s eternal salvation. So my challenge to myself and all of you is to create space to say yes to showing love to those who love us but offer even more love to those who do not love us. After all, we get to love others because He first loved us.

This month Lisa Locklar sent in the following verses for the June issue.

Two sparrows cost only a penny, but not even one of them can die without your Father’s knowing it.  God even knows how many hairs are on your head. 31 so don’t be afraid.  You are worth much more than many sparrows. Matthews 10:29-31

But when Peter saw the wind and the waves, he became afraid and began to sink.  He shouted, Lord, save me! Immediately Jesus reached out his hand and caught Peter.  Jesus said, Your faith is small.  Why did you doubt? Matthew 14:30-31

For I know the plans I have for you declares the Lord, “plans to prosper you and not to harm you, plans to give you hope and a future. Jeremiah 29:11

Lisa, reflecting on events of note during the past year, had this to say:

I have different verses that touch my heart at different times in my life.  During this past year, with the pandemic, our first grandchild, our middle daughter living so far away and our youngest daughter finishing college and starting her life, there seem to be so many things to think about, to worry about, to pray about, and if I let my focus stay on circumstances, I begin to sink. But the Holy Spirit reminds me,  keep my eyes on Jesus,  keep my focus on him, not my circumstances.  Worry is not from God, so why do I worry?  Draw near to God daily by reading his Word and praying to him.  Our bodies wouldn’t fare well if we only ate once per week, so we eat every day; the same with our souls/minds/hearts, we must feed them with God’s Word daily to keep our focus on Him and anchor our souls to Jesus.  Apart from Christ, I am nothing.  The verses above remind me to keep my eyes and focus on Jesus and that God loves me, he knows every hair on my head, I can trust my Father with every day of my life.

CLOSING OBSERVATIONS

NRA Loses Bid To Claim Bankruptcy In Attempt To Avoid The New York Attorney General’s Lawsuit

Texas U.S. District Judge Harlin Hale handed the National Rifle Association (NRA) a significant defeat last month when he dismissed the group’s bid to declare bankruptcy. Judge Hale found that the NRA filed the bankruptcy in “bad faith” to avoid a lawsuit in New York The powerful pro-gun lobbying group must now return to New York to defend its actions in a lawsuit brought by the New York Attorney General Letitia James. It should be noted that the suit was filed with the intent to shut down the NRA.

The battle began last August when Attorney General James filed suit alleging questionable financial decisions by the “nonprofit” organization. Specifically, the suit charges that the NRA and individual directors, including longtime Chief Executive Wayne LaPierre, “with failing to manage the NRA’s funds and failing to follow numerous state and federal laws, contributing to the loss of more than $64 million in just three years for the NRA.” It details how the group participated in “illegal self-dealing” for years to fund “lavish lifestyles” for NRA leaders.

In January, the NRA filed for Chapter 11 Bankruptcy and then tried to reorganize in Texas, arguing that New York’s regulatory environment was corrupt. New York prosecutors criticized the NRA’s filing as simply a tactic to avoid the lawsuit and thereby avoid accountability.

Reuters reported that following a 12-day trial, Judge Hale found some of the details about the NRA’s activities were “cringeworthy.” Judge Hale explicitly denounced LaPierre. The judge wrote in his order:

Excluding so many people from the process of deciding to file for bankruptcy, including the vast majority of the board of directors, the chief financial officer and the general counsel, is nothing less than shocking.

According to the New York Times, days before Judge Hale’s ruling, the U.S. Justice Department weighed in supporting dismissal of the filing. A Justice Department lawyer, Lisa Lambert, said that the “evidentiary record clearly and convincingly establishes” that Wayne LaPierre “has failed to provide the proper oversight.” She also noted that “the record is unrefuted that Wayne LaPierre’s personal expenses were made to look like business expenses.”

Attorney General James took to Twitter to express her pleasure with the Judge’s ruling saying: “The @NRA does not get to dictate if and where it will answer for its actions, and our case will continue in New York court. No one is above the law.”

In addition to the lawsuit by the New York Attorney General, the Internal Revenue Service is also investigating LaPierre for tax fraud.

The NRA has enjoyed tremendous political power for years, and it appears that power has been misused to the detriment of the American people, including the thousands of individuals who have sent hard-earned money to help fund the NRA. As a result of the NRA’s virtual control in Congress, our country is now reaping the benefits of legislative inaction on critical gun-related issues in a bad way. The huge number of mass shootings over the past several years, which sadly have become commonplace, is proof positive of what has happened as a result of allowing the NRA to dictate gun policy and be able to cause the defeat of reasonable gun safety laws.  It now appears the NRA and Mr. LaPierre will have to face the music. Stay tuned!

Sources: Business Insider, New York Attorney General, Reuters and The New York Times

Our Monthly Reminders

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

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

2 Chron 7:14

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

Edmund Burke

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

Isaiah 10:1-2

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

Martha Washington (1732 – 1802)

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

Louis Brandeis, 1937
U.S. Supreme Court Justice

Injustice anywhere is a threat to justice everywhere.

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

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

Martin Luther King, Jr.

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

Vincent Lombardi

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

Mark Twain (1835-1910)

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

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

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

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

Theodore Roosevelt Sr., December 16, 1877

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

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

Bryan Stevenson, 2019

PARTING WORDS

The Message From Rival Camps: “Take The Vaccine”

I am joining with two extremely well-known men from the world of sports, Nick Saban, the best coach in football, and the world-renowned Charles Barkley, to urge those who have not taken one of the Covid-19 Vaccines to do so. When two famous individuals – one from the University of Alabama and the other from Auburn University – bitter rivals in sports – can agree on something of substance, it has to be very important, correct and needed.

Unfortunately, the vaccine, the subject of their recommendation, has become politicized, and that’s not good. Science and common sense should rule the day, including decision-making relating to taking the vaccine. These two spokesmen have set a good example for the politicians in addition to giving good advice and counsel to the public on the vaccine.

I concur fully with this strong endorsement of the vaccine and the need for all Americans to become fully vaccinated as soon as possible. If you have not taken one of the approved vaccines, do so immediately.

My prayer is that folks who are refusing for whatever reason to take the vaccines will listen to Coach Saban and “Chuck,” heed their “unified” plea and then get the vaccine. Getting all persons vaccinated will be a difference-maker for our country and all of the American people. Roll Tide and War Eagle!