The Right To Vote In America
The right to vote in our country is under attack, and that is something all Americans should be greatly concerned about. American democracy is a representative democracy where citizens elect local, state and federal leaders or officials by voting in elections. Voting is one essential freedom Americans enjoy, and regardless of which candidates, political party, or various issues we support, voting is the absolute key to our democracy. The United States should be a beacon of light for other nations to see and want to be like.
Every person who has the right to vote has the opportunity to make their voice heard by officials and others. Voters have a direct voice in who will help lead our country and represent us in the executive and legislative branches of government and, to some degree, the judicial branch, too. Every vote counts, and some elections have been decided by a small number of votes. As the Wall Street Journal reminds us, the 2000 Presidential Election was decided by 537 votes in Florida. The U.S. Supreme Court had to intervene at the end of the election and declared Republican George Bush as the winner over Democrat Al Gore. There have been other close elections in our history, strengthening the argument that every vote counts.
It is not only a right, but a civic responsibility to participate in a representative democracy. A think-tank Demos, “that powers the movement for a just, inclusive, multiracial democracy,” shares insightful research on voting. It found that “those who vote have more representation than those who do not” and that “voting plays a significant role in the distribution of government resources as well as the size of government and who benefits from public policies.”
The right to vote is a hard-won freedom for many in this country. Exercising that right helps determine who has the power to shape the trajectory of voters’ future and the future of their communities. Both political parties, and our elected leaders at every level of government, should take all necessary steps to make it easier for citizens to vote. The current efforts, doing the exact opposite, are making it much more difficult to vote. Suppressing voting is not only “un-American,” it is morally and legally wrong.
Sources: The Wall Street Journal and Demos.org
THE ROLE OF TRIAL LAWYERS TODAY
Cases Handled By The Toxic Torts Section That Have Made A Difference
In the last three issues, we have discussed how trial lawyers play a highly significant role in the actual regulation of corporate America. This role is critically important to the safety of products, health issues, environmental concerns and consumer protection. We know from experience that the courts and juries have played a major role in bringing about needed changes that would never have happened if left to Corporate America. Over the past 42 years, Beasley Allen lawyers have successfully handled a huge number of important cases that have brought about many of these changes. This month, we will mention some of the cases handled by the lawyers in our Toxic Torts Section that have made a huge difference in people’s lives and in the corporate boardrooms of America.
Toxic tort litigation encompasses a broad range of claims resulting from exposure to dangerous and hazardous substances or from environmental contamination caused by dangerous chemicals. Toxic exposure from coming in contact with chemical, biological, or physical toxins in the air, water, food, or soil can have a harmful effect on human health, resulting in personal injury and even death. Pollution can result in far-reaching property damage when industries willfully or necessary contaminate the environment as well as during or after environmental disasters such as an oil spill.
Beasley Allen lawyers in the Toxic Torts Section work to protect people and property from toxic chemicals and environmental pollution that are caused by negligence or other wrongful conduct. These cases have genuinely made a difference in the lives of our clients, their families, and communities.
Let’s take a look at some of these cases throughout the U.S. that lawyers in our Toxic Torts Section led by Rhon Jones have handled.
PCB Settlement Anniston, Alabama – PCB’s were manufactured in Anniston, Alabama, for decades, and the impact was felt by Anniston residents in neighborhoods and areas that were already at risk both economically and socially. In 2003, Beasley Allen lawyers, working with the late Johnnie Cochran, engineered a $700 million settlement agreement with Monsanto and Solutia over PCB contamination in Anniston on behalf of more than 20,000 clients. This brought closure to a lengthy fight over the extent of PCB contamination caused by Monsanto. The settlement allowed homeowners to receive payments, and it provided funding for a local health clinic and additional research on PCBs. The settlement made a real difference for the community which had been exposed to PCB’s unfairly for decades.
Continental Carbon – What started as an effort to protect the City of Columbus, local citizens, and businesses in Columbus, Georgia, from carbon black soot resulted in a jury verdict of almost $21 million, which was later upheld on appeal by the 11th Circuit. The verdict was the result of hard work by Beasley Allen lawyers and our co-counsel Jeff Friedman and Eddie Jackson. The verdict resulted in a $98 million settlement between the EPA and Continental Carbon, which included a complete upgrade of pollution controls for the plant, making the City of Columbus much safer and cleaner.
BP Oil Spill Litigation – On April 20, 2010, the Deepwater Horizon oil rig exploded in the Gulf of Mexico, killing 11 workers and spilling millions of gallons of oil into the Gulf. The spill is considered the largest man-made environmental disaster in United States history and one of the largest in world history. It devastated Alabama’s beaches, tourism industry and businesses throughout the State, causing Alabama to suffer substantial tax losses and environmental impacts.
Beasley Allen lawyers were quick to respond. Our lawyers were part of the Plaintiff Steering Committee for the BP Deepwater Horizon multidistrict litigation (MDL) and class counsel in the economic and property class settlement against BP. Our lawyers reached two class action settlement agreements with BP – one for injured cleanup workers and a separate agreement for businesses including fishermen and tourism-dependent businesses, negatively impacted by the economic after-effects in Louisiana, Alabama, Mississippi, Texas, and Florida.
Beasley Allen lawyers also represented thousands of these claimants in the court-supervised settlement program, battling on their behalf for nearly a decade to ensure they received just compensation under the program.
Beasley Allen represented the State of Alabama in its suit against BP. The State’s beaches, fish and wildlife were devastated by the spill. The economic repercussions of this disaster were astronomical. Our lawyers aggressively prepared for trial and ultimately obtained a settlement of more than $2 billion for the State as compensation for economic losses resulting from the spill, natural resource damages, and apportionment of Clean Water Act civil fines and penalties.
Opioids – Our Toxic Tort lawyers are heavily involved in the ongoing Opioid litigation. We have written on this litigation in detail in this and prior issues. Beasley Allen represents multiple local governments in Alabama against both manufacturers and distributors of opioids to hold them responsible for the increased costs related to the opioid crisis. Additionally, our firm has joined Alabama Attorney General Steve Marshall in representing the State of Alabama against Purdue Pharma, one of the largest opioid manufacturers in the country. Beasley Allen’s also working with Attorney General Chris Carr on behalf of the State of Georgia in its lawsuit to combat the opioid epidemic.
Mesothelioma – Our lawyers are actively involved in mesothelioma litigation. Mesothelioma is an incurable and deadly form of cancer that is caused by asbestos exposure. The companies that mined, milled and sold asbestos and the companies that utilized asbestos in the products knew about these dangers as early as the 1930s. These companies knew that the asbestos was killing innocent victims and that small amounts could cause cancer. The companies knew all they had to do was put a warning on the product or instruct people on how to handle it. Had they done this all of the death and sadness associated with the deadly product could have been avoided.
Beasley Allen mesothelioma lawyers in the firm’s Toxic Torts Section are fighting to hold corporate wrongdoers accountable and obtain justice for our mesothelioma clients. By continually revealing past corporate malfeasance and holding these powerful entities accountable, we hope to get justice for our clients and make sure these horrendous actions are not repeated.
Roundup – Beasley Allen lawyers are heavily involved in the Roundup litigation. We have written a great deal in prior issues about this critically important litigation. The multidistrict litigation (MDL) is one of the largest in recent history. Our lawyers represent over 3,500 clients in Roundup-related litigation. A preliminary class action proposal for future users of Roundup is pending before the MDL court. Our lawyers have played an active role in opposing this class action proposal since the current proposal greatly favors Monsanto and disenfranchises many would-be class members. We have been working to protect victims’ best interests and are seeking a fair and reasonable resolution of this litigation for our clients.
Water Systems Contamination – Beasley Allen lawyers are involved in this litigation involving per- and polyfluoroalkyl substances in the drinking water of tens of millions of Americans. We have written in prior issues on the PFAS problems. PFAS are a family of more than 9,000 chemicals that have been used for decades in a variety of consumer products to impart a long-lasting repellency to products. PFAS do not degrade in the environment and bioaccumulate in humans and animals. They have been linked with various health issues, including kidney and testicular cancer, and can compromise the immune system, particularly problematic in light of the ongoing COVID-19 pandemic.
As discussed in previous issues of the Report, Congress, the U.S. military, and numerous states have just begun to address the growing problem. Unfortunately, most individuals and public water suppliers currently face an imminent need to remove PFAS from their drinking water. That’s why our firm has been involved in PFAS litigation. We currently represent two public water utilities in Alabama whose water supply has been contaminated by chemical suppliers and carpet manufacturers located upstream in Dalton, Georgia. Litigation is ongoing as we seek to hold the chemical and carpet industry accountable for polluting our clients’ drinking water and to secure a filtration system capable of removing these chemicals.
The increasing litigation and more robust governmental action will hold polluters accountable for contaminating the environment and continue the trend of decreasing PFAS levels in our nation’s drinking water. We expect PFAS to be the most prominent source of environmental litigation for years to come. Hopefully, we can assist other water systems across the county obtain filtration systems that can provide clean drinking water to Americans. This is a national problem and we are dedicated to the ongoing task of seeing that justice is done.
THE JUUL LITIGATION
An Update On The JUUL Litigation
The JUUL litigation continues to move rapidly, with the first trials scheduled to begin in the MDL in less than a 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.
A highly significant ruling in the JUUL MDL will be discussed in detail below. Beasley Allen lawyers, led by Joseph VanZandt, serve in key leadership roles in the JUUL litigation. Our firm continues to investigate and file new cases against JUUL daily. If you know of an individual or government entity such as a school district that has been harmed by JUUL, our lawyers will be glad to work with you.
JUUL MDL Judge Rejects Defendants’ Bids To Dismiss Lawsuits And Adds RICO Claims
Last month, U.S. District Judge William H. Orrick, who is overseeing the JUUL multidistrict litigation (MDL), issued a very important ruling denying all motions to dismiss Racketeer Influenced and Corrupt Organizations (RICO) Act charges against JUUL Labs Inc. and other defendants, including individual board of director defendants. As discussed previously by the Report, last October, Judge Orrick dismissed the RICO charges against Altria for not being specific enough, but he gave plaintiffs time to amend court filings as to a RICO case.
Judge Orrick has now determined that plaintiffs’ amended RICO charges against the company “are plausible and sufficient for pleading purposes to allege a RICO enterprise.” Judge Orrick, in his ruling, said:
Whether [JUUL] could be the enterprise given its own alleged fraudulent conduct and whether defendants were acting primarily in [JUUL’s] corporate interests may be revisited on summary judgment. I have already held that the predicate acts of mail and wire fraud were sufficiently alleged and am not inclined to revisit that issue.
JUUL lawsuit plaintiffs also accused Philip Morris USA and Altria Group Inc., which owns a 35% share of JUUL, along with JUUL board members Nicholas Pritzker, Hoyoung Huh, and Riaz Valani, of participating in RICO conduct. Plaintiffs alleged the additional defendants were aware of JUUL’s appeal to teens and that the company profited billions off that interest.
Judge Orrick wrote that with added allegations about the directors’ “numerical control of the Board, knowledge about JUUL’s youth appeal and the growth of underage users, significant involvement in marketing decisions, and unusually active roles in management and decisions from which they profited billions of dollars, plaintiffs sufficiently allege the Other Director Defendants’ personal participation to maintain the RICO and state law claims asserted against them.”
Judge Orrick dismissed class claims relating to Delaware, District of Columbia, Idaho, and North Dakota for lacking class representatives. Judge Orrick also denied defendants’ motions to dismiss public nuisance, negligence, and statutory consumer protection claims, as well as motions to dismiss for lack of personal jurisdiction.
The multidistrict litigation includes school districts, Native American tribes, and local governments across the country. They claim that JUUL deliberately targeted tweens, teens, and young adults with candy- and fruit-flavored vape juices, stealthy e-cigarette devices, and social media influencers popular with teens as JUUL product ambassadors. As a result, JUUL created a youth vaping epidemic that schools and municipalities have been forced to deal with by redirecting funds and resources.
Beasley Allen JUUL lawyers led by Joseph VanZandt, represent individuals who have filed JUUL lawsuits holding the company accountable for the negative impact the company’s e-cigarettes have had on their lives. The team has also filed lawsuits on behalf of school districts and public entities nationwide, seeking to protect students and recover resources spent fighting the vaping epidemic.
You can contact a member of our litigation team if you need more information or have a case you would like for Beasley Allen to help you with.
Source: Law360.com and Bloomberg Law
JUUL – Jefferson County Schools Suing JUUL
Beasley Allen represents Jefferson County Schools in a lawsuit filed against JUUL Labs. JUUL encouraged a vaping epidemic among school-aged children by making its products attractive to children. This will be very easy to prove. The suit seeks compensation to assist students addicted to nicotine and to fund other initiatives in the schools.
JUUL vape devices featured kid-friendly flavors and smells that lured teens into nicotine addiction. The devices’ designs are also sleek and discrete; some even look like flash drives. In this case, the prevention and development coordinator with Homewood City Schools, Carissa Anthony, witnessed the issue herself. She says, “For a while there, students would talk about vaping, but then before we knew it, instead of saying vaping, they started saying ‘JUULing.’” Ms. Anthony says the problem is predominately among high schoolers in her district. She does not believe the teens understood the amount of nicotine they were intaking from the vaping devices. She explained:
They’re typically marked with 3% nicotine or 5% nicotine which doesn’t sound like a lot, but the reality is those pods are the equivalent to a pack or 2 packs of traditional cigarettes.
We are honored to have the opportunity to represent Jefferson County in this lawsuit. Our lawyers will do their best to see that justice is done.
Nationwide, hundreds of other school districts are also suing JUUL. Beasley Allen lawyers now represent the following Alabama School districts:
- Autauga County School District
- Attalla City School District
- Baldwin County School District
- Clarke County School District
- Coffee County School District
- Dale County School District
- Daleville City School District
- Jefferson County School District
- Marion County School District
- Mobile County School District
- Muscle Shoals City School District
- Selma City School District
- Winfield City School District
JUUL Plaintiffs Get Court Approval To Depose Altria CEO In MDL
A California federal magistrate judge has ruled that plaintiffs in multidistrict litigation over the marketing practices of e-cigarette maker Juul Labs Inc. will be allowed to depose the CEO of Altria. As you will recall, Altria owns a 35% stake in Juul. The plaintiffs successfully argued that Altria Chief Executive Billy F. Gifford should be deposed because he played a principal role in Altria’s $12.8 billion investment in Juul and has personal knowledge of the company’s operations and business strategy central to their claims.
U.S. Magistrate Judge Jacqueline Scott Corley ruled for the plaintiffs wrote in her order that the plaintiffs can take Gifford’s deposition and that the deposition will be limited to seven hours and should be scheduled for later on in the discovery period.
The plaintiffs are represented by co-lead counsel Sarah R. London of Lieff Cabraser Heimann & Bernstein, Dena Sharp of Girard Sharp LLP, Dean Kawamoto of Keller Rohrback LLP and Ellen Relkin of Weitz & Luxenberg. The plaintiffs are also represented by Beasley Allen lawyers, along with lawyers from Tycko & Zavareei LLP, Goza & Honnold LLC, Wagstaff & Cartmell LLP, Miller Pitt Feldman & McAnally PC, Lynn Lynn Blackman & Manitsky PC, Robbins Geller Rudman Dowd LLP, Begley Carlin & Mandio LLP, Beggs & Lane RLLP, Migliaccio & Rathod LLP, Briscoe Ivester & Bazel LLP, Renne Public Law Group, Keller Rohrback LLP, Gacovino Lake & Associates PC and Gutride Safier LLP.
The MDL is In re: JUUL Labs Inc. Marketing, Sales Practices and Products Liability Litigation (case number 3:19-md-02913) in the U.S. District Court for the Northern District of California.
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.
DRUG MANUFACTURERS FRAUD LITIGATION
State Attorneys General And The Pharmaceutical Industry
The Covid-19 pandemic has changed various aspects of the legal profession. While professionals are adapting to zoom hearings and remote practice, they also keep a close eye on developing areas of the law. Lawsuits against drug makers and pharmaceutical companies have been and will continue to dominate dockets across the country. Part of this emphasis is due in part to the new presidential administration and promises of enforcement and prosecution. Several State Attorneys General (AGs) and the federal government have already demonstrated a commitment to stand against fraud and wrongdoing in the industry. These AGs are looking to protect against fraud and abuse, deceptive business practices, price-fixing, and anti-competitive conduct.
Lawsuits against drug manufacturers, distributors, and pharmaceutical companies are not novel. Nationwide, there have been thousands of cases where state and local governments accused pharmaceutical companies of causing or contributing to the opioid crisis. Thus far, some of the opioid cases won through settlement or litigation have resulted in considerable recoveries. However, as lucrative as those recoveries were, the cases were lengthy and difficult to finish. Lawyers are still diligently fighting the opioid crisis, but changes in the pharmaceutical and political landscapes have changed in many states. More recently, lawsuits against Big Pharma indicate a willingness to settle quicker and for more significant amounts. This change in settlement patterns and changes in various administrations have pivoted the focus of plaintiff firms across the country.
Currently, 49 states are involved in multidistrict litigation where AGs, drug buyers, and end payors alleged that manufacturers colluded in a massive price-fixing scheme to increase or change prices for various drugs. The lawsuits are against 37 generic drug manufacturers and were consolidated in the Eastern District of Pennsylvania for discovery and pretrial practice purposes. Most states and the Northern Mariana Islands, Puerto Rice, Washington, D.C., and the Virgin Islands add roughly 80 generic drugs impacted by this price-fixing scheme. These cases have resulted in lengthy discovery disputes, but state AGs are likely to begin settlement discussions. Since the Department of Justice has reached deals with generics companies like Sandoz and Apotex for $195 million and $24 million, respectively, state AGs are likely to push for significant settlements against two of the biggest remaining generic producers Teva and Mylan.
While this multidistrict litigation and impending generics lawsuits are occurring, state AGs are also likely to pair with federal actors to investigate anti-kickback and health care fraud cases. Medicaid Fraud Control Units have been engaged in investigations seeking to resolve traditional health care fraud cases, and state AGs have already begun pursuing qui tam and false claims cases seeking recoveries on behalf of their states. As AG elections arrive and President Biden continues in office, states are likely to zealously pursue claims against drug manufacturers, distributors, and pharmaceutical companies. Big Pharma can expect significant scrutiny from state and federal governments. Our firm is involved in much of the State AG litigation ongoing, and we hope to continue to do our part to bring about positive corrective action in these government-run healthcare programs. Dee Miles, Ali Hawthorne and a team of lawyers from the firm have taken the lead on these State AG cases in the past with good success, and they look forward to working with the AGs in the near future.
THE TALC LITIGATION
Mississippi Attorney General Has Big Win In State’s Talc Lawsuit
The Supreme Court of Mississippi unanimously ruled last month that Johnson and Johnson (J&J) can’t evade the Mississippi Attorney General’s talc baby powder lawsuit. The Supreme Court rejected J&J’s argument that neither the Food, Drug and Cosmetic Act (FTCA) nor the Federal Trade Commission Act (FTC) bars the state’s claims. As a result, the high court found that federal regulations do not preempt the state’s claims. The opinion affirmed a 2018 decision by Hinds County Chancellor J. DeWayne Thomas that denied J&J’s bid for summary judgment.
The initial suit was filed in August of 2014 by the Mississippi Attorney General, alleging that J&J broke the consumer protection law by failing to warn that its talc products could cause ovarian cancer. The Attorney General asserts that J&J misrepresented the benefits and risks of the talc baby powder by having insufficient labeling when it failed to warn Mississippi residents about the scientific evidence linking talc with an increased risk of ovarian cancer.
J&J argued in the appeal that because the Mississippi Consumer Protection Act is “guided by” the FTCA, and the FTCA does not include product labels in its false advertising provision, then the state’s Act must also not include product labels. This argument was rejected by the Mississippi Supreme Court, finding that J&J was misreading the FTCA. If the Mississippi Consumer Protection Act did not cover labels, the state would have a legal mechanism to address labeling issues. The Court found that while there is preemption, it applies only to FDA rulemaking and regulations. The FDA has declined to decide whether talc products must warn about the risk of ovarian cancer. But the scientific evidence is overwhelming that there is a strong relationship between the use of talc products and ovarian cancer.
The Supreme Court ultimately found that The Mississippi Consumer Protection Act does not exclude the State’s talc labeling claim. Additionally, because of the lack of any specific requirement by the Food and Drug Administration, the State’s claim is not barred by the principles of express or implied preemption. This ruling was a huge win for the State of Mississippi.
The state is represented by Mississippi Attorney General Lynn Fitch and by Patrick C. Malouf, Ta’shia S. Gordon, Timothy W. Porter, Laurel Li Harris, R. Allen Smith Jr., Wendy R. Fleishman, Paulina Do Amaral, George W. Neville, Donald L. Kilgore and Jacqueline H. Ray of the Attorney General’s Office. The case is Johnson & Johnson et al. v. Fitch (case number 2019-IA-00033) in the Mississippi Supreme Court.
Source: Law 360.com
Beasley Allen Talc Litigation Team
Our Talc Litigation Team has been very busy preparing for upcoming trials. We will give a detailed update in the June issue. 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 Update
There continues to be a tremendous amount of activity around the country in the Opioid Litigation. Beasley Allen lawyers have been very busy in case preparation. We will give a brief summary of some of the more significant areas that affect this litigation overall. We will start with a recap of the bankruptcy issues and follow that with a look at the MDL.
The Purdue Pharma Bankruptcy
Opioid Litigation Update
Purdue Pharma remains at the center of the opioid crisis that claimed over 450,000 lives in the U.S. because of its highly addictive drug OxyContin. The company is owned by the now-infamous billionaire Sackler family and has submitted its bankruptcy restructuring plan to the federal bankruptcy court in White Plains, New York, and presiding Judge Robert D. Drain. The company filed for bankruptcy in 2019 in an attempt to halt mounting civil litigation. In exchange for a contribution of $4.9 billion from the Sackler family, the owners of Purdue, the settlement was meant to release Purdue and members of the Sackler family from all opioid-related litigation, the Washington Post reported. The settlement would also turn Purdue into a public trust that would be managed by an independent board and no longer operated by members of the Sackler family.
The money would be disbursed over nine years by trusts that are to be established to distribute the money to affected individuals and groups with an initial cash distribution of $500 million and $1 billion from assets and operations through 2024. Affected groups include states, local governments and tribal organizations, while individuals include family members of overdose victims or guardians of infants born with neonatal abstinence syndrome; and hospitals and insurers.
The plan allows states and local governments to select the board of directors to oversee the new public trust company. The board would be able to sell the trust in 2024, but the purchaser would be required to maintain the same monitoring and regulatory practices for the trust’s opioid products.
In a related criminal action, Purdue pled guilty last October in a federal New Jersey court “to a three-count felony information charging it with one count of dual-object conspiracy to defraud the United States and to violate the Food, Drug, and Cosmetic Act, and two counts of conspiracy to violate the Federal Anti-Kickback Statute,” the DOJ explained. In exchange, the DOJ closed its civil and criminal investigations of the company and the civil investigations of members of the Sackler family if approved by the bankruptcy court. However, Sackler family members are not shielded from future criminal charges.
The plea deal includes the largest penalties ever levied against a pharmaceutical manufacturer, including a criminal fine of $3.544 billion and an additional $2 billion in criminal forfeiture.
After the plan was entered, Judge Drain extended the injunction on lawsuits against the Sackler family members, giving the Sacklers and Purdue time to finalize the bankruptcy plan with the parties. NPR reported that more than two dozen state attorneys general have criticized the plan as not going far enough to hold the company and the Sackler family members accountable for the deplorable epidemic unleashed on this country by their drug OxyContin and making $10.8 billion in profits off the sale of the drug.
A hearing on the plan that was scheduled for April 21 has been postponed until May 4. We will keep our readers updated as new developments arise.
U.S. District Judge Dan Aaron Polster, the Ohio federal judge supervising multidistrict opioid litigation, has selected five additional cases for bellwether trials against major pharmacy chains. The judge rejected assertions that he is punishing the companies for them not settling. The selections were made during a teleconference, which included lawyers for local governments and the nation’s four biggest pharmacy retailers.
In making the selections, Judge Polster noted that the pharmacies — CVS Health Corp., Walgreen Co., Walmart Inc. and Rite Aid Corp. — recently accused him of pursuing the trials because they had not reached global settlements or agreed to let the judge mediate settlement talks.
Until recently, the MDL has mostly concentrated on drug manufacturers and distributors. But with many of those corporations working to finalize global settlements, sometimes as part of bankruptcy proceedings, the focus has now shifted to pharmacies. The new bellwethers come from a larger roster of cases that the opposing sides recently identified and debated in separate submissions. Judge Polster chose two bellwethers from each submission, considering which cases from each side were “disliked the least” by the other side.
Judge Polster said he picked the fifth bellwether from the plaintiffs’ submission because it involves a case filed in Ohio and therefore “may be the least expensive to work up,” given that pharmacy dispensing data for the Buckeye State has already been produced in the MDL. The pharmacies objected to additional bellwethers partly because they are already preparing for multiple trials, including one in New York state court that could start in June and one before Judge Polster scheduled for October.
The new bellwether plaintiffs are Durham County, North Carolina, in the Fourth Circuit; Tarrant County, Texas, in the Fifth Circuit; Montgomery County, Ohio, in the Sixth Circuit; Santa Fe County, New Mexico, in the Tenth Circuit; and Cobb County, Georgia, in the Eleventh Circuit.
Proposed litigation schedules for the five new bellwethers were due April 28. The MDL is In re: National Prescription Opiate Litigation (case number 1:17-md-02804) in the U.S. District Court for the Northern District of Ohio.
Sources: Washington Post, New York Times, NPR, U.S. Department of Justice and Law360.com
The Beasley Allen Opioid Litigation Team
Activity in the Opioid Litigation has intensified nationally. The firm’s Opioid Litigation Team is hard at work, and our lawyers are overcoming the roadblocks caused by the pandemic. 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 these lawyers at 800-898-2034 or by email at [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected] or [email protected].
THE WHISTLEBLOWER LITIGATION
Terminated Whistleblower Vindicated In Landmark FCA Decision
The United States Court of Appeals for the 6th Circuit recently ruled that the False Claims Act’s prohibition against retaliation protects not just current employees but also protects former employees. This decision has enormous implications because it widens the scope of protection from whistleblower retaliation afforded by the False Claims Act (FCA). The litigation that provided this landmark decision is U.S. ex rel. Felten v. William Beaumont Hospital. In this case, whistleblower David Felten brought a qui tam lawsuit against William Beaumont Hospital in 2010, alleging a large-scale kickback scheme that the hospital ultimately settled for $84.5 million in 2018. Three other whistleblowers also filed qui tam lawsuits against the same hospital alleging similar violations of the FCA.
The lawsuits claimed that the hospital offered physicians above market value compensation and provided them with free or sub-cost office space and employees as an incentive for the physicians to refer more patients to William Beaumont Hospital. In turn, the costs associated with the referred patients would then be billed to the government under federal healthcare programs like Medicare in violation of the FCA. In contrast to the other whistleblower lawsuits, Felten amended his lawsuit to claim that the hospital retaliated against him by “blacklisting” him, which prevented him from getting another job after he was fired.
Whistleblower Felten’s claim only involved actions that William Beaumont Hospital took after he was terminated and did not deal with retaliation during his time working for the hospital. Consequently, the trial court rejected Felten’s claim and ruled that the FCA’s anti-retaliation provisions did not cover former employees.
On appeal the 6th Circuit reversed the trial court and provided whistleblowers a victory that could be equivalent to a seismic shift in anti-retaliation litigation under the FCA. Although some believe that the worst-case scenario for a whistleblower involved in exposing fraud against the government is the loss of employment, unfortunately, this is not always true. Many whistleblowers in highly trained and professional fields like the medical industry struggle to ever find jobs in their field again after making a disclosure.
This practice of making sure that a whistleblower never works in their chosen field again is called “blacklisting.” Whistleblowers have struggled to find protection from this unethical practice under the False Claims Act, but until now have been largely unsuccessful. Although this decision does not guarantee Felton, the whistleblower, protection and remuneration for the blacklisting he suffered, it does open the door for another court to grant him both in a future decision.
Writing for the majority of the court, Judge John Bush wrote that the word employee as defined by the FCA has “no temporal qualifier,” thus including former employees in the larger definition of the word. This expansion of the definition has the potential to include countless other whistleblowers who were previously excluded from the category of “employee” simply because they had already been fired. Further in his majority opinion, Judge Bush stated:
If employers can simply threaten, harass, and discriminate against employees without repercussion as long as they fire them first, potential whistleblowers could be dissuaded from reporting fraud against the government.
This decision is a tremendous victory for False Claims Act whistleblowers and the federal government’s anti-fraud program in general. It reasserts the spirit of the law and rejects a loophole that corporations have been using to squash whistleblower retaliation claims for years. The 6th Circuit has remanded the case to the lower district court to reexamine blacklisting in this case. Hopefully, a reconsideration of blacklisting will result in a ruling that includes blacklisting as a form of retaliation covered under the False Claims Act.
If you have any questions, contact Larry Golston, a member of our Whistleblower Litigation team at 800-898-2034 or by email at [email protected].
$75 Million Settlement Reached With Bristol-Myers Squibb To Resolve False Claims Act Litigation
Louis D. Lappen, Deputy United States Attorney for the Eastern District of Pennsylvania, announced that Bristol-Myers Squibb (BMS) has agreed to pay a total of $75 Million, on April 1, 2021, plus interest, to the United States government and to all 50 states and the District of Columbia to resolve claims it knowingly underpaid rebates to state Medicaid programs. Of the $75 million, BMS agreed to pay approximately $41 million to the federal government and the remainder to the states participating in the settlement, as well as for the whistleblower’s legal fees and costs.
All allegations resolved in the civil settlement were filed under the qui tam provisions of the FCA, which are known as the whistleblower provisions. The qui tam provisions of the FCA allow private parties to sue on behalf of the government and, in return for alerting the government to the fraud, receive a share of any damages recovered. In this case, the government agreed to pay the whistleblower $12 million. Under the FCA, the government may intervene in the suit filed by the whistleblower or, as it did in the BMS case, allow the whistleblower to pursue the action individually on the government’s behalf.
The Medicaid Drug Rebate Program requires drug manufacturers to pay rebates to state programs for Medicaid to cover the price of the manufacturer’s drugs. The rebates are calculated based, among other things, on the Average Manufacturer Prices (AMPs) for the drugs that drug manufacturers, such as BMS, report to the government. In general, a higher reported AMP requires manufacturers to pay more in rebates to state Medicaid programs.
The whistleblower in the case, Ronald Streck, was a former executive for a network of drug wholesalers. The whistleblower’s complaint, filed in 2013, alleged BMS underreported AMPs for its drugs by illegally classifying fees to drug wholesalers (which are not supposed to be used when determining AMPs) as price reductions when reporting the AMPs. These price reductions, in turn, reduced the rebates BMS paid to state Medicaid programs. Also, the drug wholesalers provided credits in their services fees to BMS when BMS increased drug prices. However, BMS did not include the service fee credits in its AMPs.
In essence, since BMS knowingly underreported its AMPs by using these tactics, it underpaid rebates to the state Medicaid programs and caused the federal government to overpay for the drugs under the Medicaid program. In announcing the settlement, Deputy United States Attorney Lappen said:
It is critical that these companies report accurate pricing information used in the rebate calculations so that the government and taxpayers benefit from the program as Congress intended.
Beasley Allen lawyers have been a major part of the effort to correct the many abuses in the Medicare and Medicaid healthcare programs. Because there is so much abuse ongoing in these programs, it is difficult for the government to catch all offenders. We especially were reminded of this during the AWP (Average Wholesale Price) litigation, where our lawyers represented eight states and their Attorneys General on false price reporting. This latest BMS matter is more of the same. False price reporting. If any of our readers know of these types of abuses ongoing in any government healthcare program, come forward and help us save these programs from further abuses that deny the needy of healthcare while lining the pockets of Big Pharma.
The lawsuit was captioned United States ex rel. Streck v. Bristol-Myers Squibb Co., No. 2:13-CV-7547 (E.D. Pa.).
Sources: Justice.gov and Law360.com
Urgent Care Provider Pays $22.5 Million To Settle Whistleblower Case
On April 8, 2021, the acting U.S. Attorney for the District of South Carolina announced that Doctors Care, P.A. – South Carolina’s largest urgent care provider and its management company agreed to pay $22.5 million to settle false claims act allegations. In his complaint, an FCA whistleblower alleged that from 2013 through 2018, the companies falsely certified that urgent care treatments were being performed by individuals credentialed to bill Medicare, Medicaid, and TRICARE. However, the whistleblower alleged that the service providers were not properly approved to provide services that would later be billed to the government-backed healthcare programs.
Federal regulations require that physicians receive approval before billing insurance programs such as Medicare, Medicaid, and TRICARE backed by the federal government. The whistleblower alleged that the Doctors Care’s management company — UCI Medical Affiliates of South Carolina, Inc. (“UCI”) – could not obtain credentials from the government for most Doctors Care’s providers from 2013 to 2018. The relator further alleged that “UCI knew that federal insurance programs would deny claims submitted with the billing number of a provider who had not yet received their billing credentials.” However, instead of resolving the issue before billing the federally backed insurance programs, UCI and Doctors Care simply submitted the false claims vis-à-vis the billings.
In addition to the financial settlement, UCI and Doctors Care entered into a Corporate Integrity Agreement with the Office of Inspector General. Over the next five years, both entities must undergo routine claim reviews by an independent review organization to ensure that they comply with federal credentialing regulations. Ultimately, these federal regulations help to ensure that medical providers are vetted so that patient care is not compromised. When a company fails to comply with the regulations, the entire general public is put at risk.
The Beasley Allen Whistleblower Litigation Team
There has been no slowdown in False Claims Act (FCA) litigation. Lawyers on Beasley Allen’s Whistleblower Litigation Team continue to be very busy handling cases under the Act. Fraud against the federal government by all too many industries in this country, especially in health care, remains a huge problem. We project that because of the pandemic, fraud against the federal government will increase greatly. The combination of the national mishandling of the coronavirus pandemic by the Trump Administration and corporate greed will be a significant factor for the increase.
We continue to stress that whistleblowers are essential and the key to exposing corporate wrongdoing and government fraud. Their role has intensified greatly 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.
The following Beasley Allen lawyers are on the Whistleblower Litigation Team: Larry Golston ( [email protected]), Lance Gould ( [email protected]), James Eubank ( [email protected]), Paul Evans ( [email protected]), Leslie Pescia ( L[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, also 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
Seatback Failures: A Deadly Auto Products Liability Problem
The public would be shocked to learn that one child dies in an auto accident involving a seatback failure every week. That’s at least 50 children a year, on average, over the last 15 years, according to figures used by auto safety advocates to call attention to a dire auto product liability issue that’s gone uncorrected for decades. As troubling as those numbers are, they don’t truly convey the incomprehensible real-life tragedies many parents grapple with when their child is severely injured or killed by a seatback failure.
Liz Warner’s 16-month-old daughter Taylor was killed when another vehicle struck the family’s minivan from behind. The impact caused Taylor’s father’s seat to collapse back onto the seat where she was sitting.
Taylor “had about six weeks when she was toddling around, and then it was over,” Ms. Warner told CBS News.” The loss of their daughter, she said, “was all because of some stupid car that we thought was the safest thing we could get for our family to protect them.”
Parents Jason and Kat Hartwell said a defective seatback caused the driver’s seat to collapse backward when their 2012 Ford Fit was rear-ended, injuring their son Taylor on his fourth birthday. The seat struck Taylor, leaving him with a severe traumatic brain injury that robbed him of his prospects for a normal life.
These are just some of the many product liability cases that CBS News uncovered in its six-year investigation of seatback failures. The news agency found that dangerously weak seatback designs are present in many car brands and models due to inadequate federal safety standards that have gone unchanged for half a century. According to CBS, the standards are so poor that even a banquet chair passed crash tests that actual vehicle seats failed.
Seatback failures occur when a vehicle is struck from behind, causing the front seats to break. Court documents filed with the Hartwells’ auto product liability lawsuit against Honda say that “the bending and distorting of the recliner connecting rod” in the seats is part of the seatback failure problem. When seatbacks collapse, they can violently propel front-seat occupants back toward the rear of the vehicle. They may also collapse back onto someone in the back seat. Children are often the victims of seatback failures, but injuries and fatalities can and have happened to people of all ages.
Addressing the problem, Senators Ed Markey (D-Mass.) and Richard Blumenthal (D-Conn.) reintroduced a bill last summer that would require the National Highway Traffic Safety Administration (NHTSA) to toughen seatback safety standards. The Modernizing Seatback Safety Act would require NHTSA to rewrite seatback safety standards within two years. The bill was not passed during the last congressional session, but the Senators vowed to continue pursuing similar legislation until it is successful. Senator Markey was injured by a car as a young child and has been advocating to change the seatback standard to better protect child passengers since 2015, when he first learned of Taylor Warner’s death.
In an interview last summer, Senator Markey said that the spotlight is now on NHTSA and the auto manufacturers, “and our goal is to make sure that we pass the legislation that fixes this problem.” Hopefully, that will happen. But it’s my belief that the judicial system and specifically the trial courts are the key to protecting the public and making automakers do the right thing, and make seat backs stronger and safer.
Source: CBS News
Nineteenth U.S. Death Tied To Takata Airbag Reported In South Carolina
Honda Motor Co. has confirmed the 19th U.S. death tied to a ruptured Takata airbag inflator since 2009. This was the 16th death in a Honda vehicle. The Japanese automaker said on April 21 that following a joint inspection, the company and NHTSA confirmed that a defective Takata driver’s airbag inflator ruptured in the crash of a 2002 Honda Accord on Jan. 9, 2021, in Lancaster County, South Carolina. The defect can cause airbag inflators to rupture and send dangerous metal fragments flying inside the vehicle. The problem caused by the defective airbags prompted the largest automotive recall in history.
More than 400 injuries are also tied to faulty Takata inflators and at least 28 deaths worldwide. There have been two U.S. Takata deaths in Ford vehicles and one in a BMW.
The Takata recalls cover about 100 million inflators among 19 major automakers worldwide, including about 67 million inflators in the United States. The vehicle involved in the fatal South Carolina crash had been under recall since April 2011. Honda said it had made more than 100 attempts to reach owners of this vehicle. Honda records indicate the recall repair was never completed.
Peloton Fights Federal Safety Recall After Its Treadmills Have Left One Child Dead, And Others Injured
As we all know, treadmills, stationary bikes and other kinds of exercise equipment have become very popular in recent years. The pandemic has dramatically increased the use of this equipment. Among the most popular items are the Peloton treadmills and stationary bikes. We will take a look at some recent developments related to the Peloton treadmills.
One month after revealing that one child died and others were injured in accidents on Peloton treadmills, the company is resisting a federal safety agency’s request that the company recall the products. The company has also delayed the investigation by the Consumer Product Safety Commission (CSPC) into potential safety problems.
The previously undisclosed dispute between the nation’s product safety regulator and Peloton — a $34 billion company famous for its stationary bikes and online workouts — has so far taken place outside public view. Because of recent events, however, that will no longer remain the case since the conflict is now in public view.
The government and Peloton are battling over whether the company’s treadmills should to be taken off the market. Reportedly, the company and federal regulators had been negotiating over the wording and timing of a CPSC warning to alert consumers to potential dangers posed by the company’s Peloton Tread+, a $4,300 exercise machine.
A new safety warning from the CPSC was posted on April 17. This warning said the agency “found that the public health and safety requires this notice to warn the public quickly of the hazard” and advised consumers to stop using the treadmills. Peloton responded with a statement on its website that derided the CPSC’s “unilateral press release about the Peloton Tread+ saying it was inaccurate and misleading.” The company said there was no reason to stop using the treadmills.
It was reported that the CPSC was alarmed by reports of victims being pulled under the machines and suffering injuries that included broken bones and head trauma. This was said not to happen with other treadmills, making it, according to the agency, “a different hazard pattern than is typically seen.”
It should be noted that John Foley, the CEO, and co-founder of Peloton, March 18, posted a letter on the company’s website. In the letter, Foley said he had recently learned about a child’s death and “a small handful of incidents” where the company’s treadmill hurt other children. The letter asked consumers always to keep children and pets away from Peloton equipment.
Reportedly, Peloton had already notified the CPSC of the fatality, as required by law. But the agency discovered that there were actually “dozens” of incidents involving Peloton’s treadmills, some involving pets or exercise balls and many of them resulting in serious injuries. This led the CPSC to view this as a much more significant and potentially more dangerous problem than previously believed. Peloton said it received new reports of accidents after the March 18 letter, leading to the higher numbers.
We will continue to monitor the situation relating to Peloton’s treadmill problems.
Eyes On Texas As High Court Considers Amazon Product Liability Case
The Texas Supreme Court is preparing to rule on a landmark consumer product liability case. The case was filed by a mother seeking to hold Amazon liable for a defective third-party product sold through its platform. It has become quite apparent that Amazon has taken a major role in the delivery of products of all kinds to the American people.
In the past few years, Amazon has become a significant presence in the lives of many, if not most, U.S. consumers. But consumer product liability laws have not adapted to Amazon’s unique e-commerce business model. As a result, any consumer injured by a defective product sold by a third-party manufacturer or vendor through Amazon may have little or no legal recourse. Many of the products bought and sold on Amazon are made in China and other countries and fail to meet U.S. standards for safety or quality. Yet, they can easily end up in the hands of unsuspecting consumers. That is what happened to Morgan Miller, the plaintiff whose product liability lawsuit is now before Texas’ highest court.
Ms. Miller purchased a remote control through Amazon from “USA Shopping.” Her 19-month-old daughter was severely injured after swallowing a lithium-ion button battery from the poorly and defectively made device. After the accident, Ms. Morgan and Amazon tried without success to contact USA Shopping. The vendor, however, turned out to be a Chinese individual or entity identified as ‘Hu Xi Jie,” based in Shenzen.
As in similar cases, Amazon argues in the Texas case that it is not a seller and that it merely facilitates the sale of products through its online marketplace. Traditionally, consumers allegedly injured by a defective product can sue the manufacturer, vendor, and distributor. The company also argues that its liability is limited because the third-party seller set the item’s price, wrote its description, and offered it for sale. Amazon further warns that a ruling for the plaintiff would have “wildly unpredictable and far-reaching results” for other companies that engage in e-commerce.
Consumer advocates say that Amazon is no less liable than traditional brick-and-mortar retailers for injuries caused by defective products. In an amicus brief urging the court to dismiss Amazon’s claims, consumer advocates contended that in addition to processing payment for the remote control, “Amazon … retrieved the defective remote from its own warehouse, packed it, labeled it, and shipped it.”
Other plaintiffs have taken Amazon to court with similar product liability lawsuits, with mixed outcomes. The law is still emerging and in a direction that will protect consumers.
In a case brought by a woman who was partially blinded when a retractable dog leash snapped her eye, sued Amazon in Pennsylvania. A lower court dismissed the lawsuit in 2018. But, the Third Circuit revived it the following year, with the majority finding that Amazon met a seller’s definition and could be sued under the state’s strict liability law. However, the appeals court declined to rule on the case and left it up to the Pennsylvania Supreme Court to decide. It’s significant that Amazon reached a confidential settlement with the plaintiff before the Court could rule.
Other high-profile product liability lawsuits against Amazon have been decided in Arizona, California, and Ohio, among other states. Still, the case in Texas could have the most significant legal impact on this litigation so far.
Whichever way the Texas Supreme Court rules (a decision is expected in June), these product liability cases against Amazon underscore an area of law that fails to protect consumers from defective products adequately. A ruling in Amazon’s favor would be troubling as it could signal that overseas manufacturers could sell subpar, defective, and dangerous products in the U.S. with impunity from state and federal laws.
40 Volt Lithium Battery Exploded In Texas Home
There has been a great deal of attention directed at lithium batteries and incidents revealing potential hazards. Earlier this year, a local man in rural Texas was in his home when he heard a loud explosion on his front porch. The man rushed to his front porch, where he found that one of his Ryobi 40-volt lithium batteries had spontaneously combusted, resulting in a fire that nearly burned his home to the ground.
According to a statement obtained by a local news outlet, the battery was not plugged in when it exploded. The owner of the battery was quoted, saying: “People need to hear this. Ryobi needs to hear about this.”
Unfortunately, many of the world’s manufacturers are continuing to grapple with fire risks and other safety problems posed by high-powered lithium-ion batteries in consumer products.
If you would like more information about lithium-ion batteries, you can contact Will Sutton, a lawyer in our firm’s Montgomery office. He can be reached at 800-898-2034 or by email at [email protected].
AN UPDATE ON MOTOR VEHICLE LITIGATION
Rules & Restrictions On Texting And Using A Mobile Phone While Operating A Commercial Motor Vehicle
Distracted driving, caused explicitly by phone use for texting and calling while driving, continues to cause thousands of wrecks across the United States, many involving distracted drivers of Commercial Motor Vehicles (CMV). Research commissioned by the Federal Motor Carrier Safety Administration (FMCSA) shows the odds of being involved in a safety-critical event (e.g., crash, near-crash, unintentional lane deviation) are 23.2 times greater for CMV drivers who text while driving than for those who do not, and six times greater for CMV drivers who engage in dialing a mobile phone while driving than for those who do not.
Texting drivers took their eyes off the forward roadway for an average of 4.6 seconds. At 55 mph, this equates to a driver traveling 371 feet, or the approximate length of a football field (including the end zones)—without looking at the roadway.
Dialing drivers took their eyes off the forward roadway for an average of 3.8 seconds. At 55 mph (or 80.7 feet per second), this equates to a driver traveling 306 feet without looking at the roadway.
Texting and mobile phone restrictions for commercial motor vehicle (CMV) drivers
FMCSA and the Pipeline and Hazardous Materials Safety Administration (PHMSA) published rules specifically prohibiting 1) interstate trucks, 2) bus drivers, and 3) drivers who transport placardable quantities of hazardous materials from texting or using hand-held mobile phones while operating their vehicles. The joint rules of the U.S. Department of Transportation are intended to end distracted driving. Violations can result in fines and/or disqualifications and impact a motor carrier’s and/or driver’s Safety Measurement System (SMS) results. See 49 CFR Parts 383, 384, 390, 391, and 392.
CMV drivers are prohibited from texting while driving. Under the rule, texting means manually entering alphanumeric text into or reading text from an electronic device. This includes, but is not limited to, short message service, e-mailing, instant messaging, a command or request to access a Web page, or pressing more than a single button to initiate or terminate a voice communication using a mobile phone.
This ruling also restricts a CMV driver from reaching for or holding a mobile phone to conduct voice communication and dialing by pressing more than a single button. CMV drivers who use a mobile phone while driving can only operate a hands-free phone located in close proximity. In short, the rule prohibits unsafely reaching for a device, holding a mobile phone, or pressing multiple buttons.
How can drivers use a mobile phone and still obey the rules?
- Locate the mobile phone, so it is operable by the driver while restrained by properly adjusted safety belts.
- Utilize an earpiece or the speakerphone function.
- Use voice-activated or one-button touch features to initiate, answer, or terminate a call. To comply, a driver must have his or her mobile telephone located where he or she can initiate, answer, or terminate a call by touching a single button. The driver must be in the seated driving position and properly restrained by a seat belt. Drivers are not in compliance if they unsafely reach for a mobile phone, even if they intend to use the hands-free function.
What happens if a driver is caught using a hand-held phone or texting while driving? The rules impose sanctions for driver offenses, including civil penalties up to $2,750 and disqualification for multiple offenses.
Motor carriers are also prohibited from requiring or allowing their drivers to text or use a hand-held mobile phone while driving and may be subject to civil penalties up to $11,000. Violations will impact SMS results. Important excerpts from the rules include the following:
49 CFR § 392.80 Prohibition against texting.
- No driver shall engage in texting while driving.
- Motor carriers. No motor carrier shall allow or require its drivers to engage in texting while driving.
- For the purpose of this section only, driving means operating a commercial motor vehicle, with the motor running, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays. Driving does not include operating a commercial motor vehicle with or without the motor running when the driver moved the vehicle to the side of, or off, a highway, as defined in 49 CFR 390.5, and halted in a location where the vehicle can safely remain stationary.
- Emergency exception. Texting while driving is permissible by drivers of a commercial motor vehicle when necessary to communicate with law enforcement officials or other emergency services.
49 CFR § 392.82 Using a hand-held mobile telephone.
- (1) No driver shall use a hand-held mobile telephone while driving a CMV.
- (2) No motor carrier shall allow or require its drivers to use a hand-held mobile telephone while driving a CMV.
- For the purpose of this section only, driving means operating a commercial motor vehicle on a highway, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays. Driving does not include operating a commercial motor vehicle when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary.
- Emergency exception. Using a hand-held mobile telephone is permissible by drivers of a CMV when necessary to communicate with law enforcement officials or other emergency services.
CMV drivers convicted of a hand-held cell violation twice within three years will be disqualified for 60 days. If convicted for a third violation within three years, the driver will be disqualified for 120 days.
The FMCSA rules specifically provide for employer liability. Within the language of the rule, FMCSA states that “no motor carrier shall allow or require its drivers to use a hand-held mobile telephone while driving a CMV.” In the preamble, FMCSA interprets the regulatory language to mean that motor carriers are responsible for the actions of their drivers, regardless of whether or not the motor carrier sanctions such actions. FMCSA will hold employers accountable if the employee was doing his or her job, carrying out company business, or otherwise acting on the employer’s behalf when a violation occurs.
If you need more information on this subject or relating to big truck litigation generally, contact Chris Glover, Rob Register, or Ben Baker, Beasley Allen lawyers who handle this type of litigation. They can be reached at 800-898-2034 or by email at [email protected], [email protected], or [email protected].
The New Wave Of Product Liability Cases: Self-Driving Vehicles
Before the pandemic, the global autonomous cars market reached a value of approximately $819 billion, with an increased annual growth rate of 12.7% since 2015. The market decreased during 2020 due to international economic shutdowns and social distancing requirements resulting from the COVID-19 outbreak. It is estimated that the global autonomous vehicle market to reach $1,192 billion by 2023 and $3,195 billion by 2030.
In today’s modern technology era, there is an increase in demand for vehicles that provide driver assistance technologies. Government initiatives such as the adoption of vehicles that reduce harmful gas emissions also increase the market growth and development of autonomous vehicles. Local and state governments also incentivize consumers to purchase autonomous vehicles
In automobile product liability cases, victims often suffer serious injury or death caused by vehicle defects such as defective seatbelts, airbags, seatbacks, roof crush, and the list goes on. With the rise in self-driving vehicles on the road, we will see an increase in vehicle accidents involving potential defects in features like autosensing technology, automatic brakes, lane departure, and steering wheel issues, to name a few.
For example, in March 2021, a Tesla Model Y operating in Autopilot struck a stationary police vehicle in Michigan. The National Highway Transportation Safety Administration opened an investigation into the incident. The Tesla, in Autopilot mode, struck an officer’s blue Dodge Charger sedan that was parked on the side of the road with its emergency lights on. This accident is one of the latest incidents that have occurred involving Tesla’s all-electric automobiles. NHTSA has investigated numerous accidents involving Tesla’s advanced driver systems.
Recently a fatal crash in Texas involving a Tesla vehicle, which according to investigating officers, was in semi-autonomous mode with no driver behind the wheel, has resulted in dual federal investigations. This will invite sharper regulatory scrutiny of potential gaps in self-driving car technology.
The U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA), which regulates auto safety, and the National Transportation Safety Board (NTSB), which investigates transportation accidents, is investigating the Texas crash which occurred in a Houston suburb. Two people were killed in the crash.
Local authorities have said that no one was in the driver’s seat of the Tesla Model S at the time of the crash — one of the car’s occupants was in the front passenger seat, while the other was in the back seat — raising questions over whether the vehicle’s so-called Autopilot function was engaged. Tesla CEO Elon Musk has denied that Autopilot was a factor in the crash.
Tesla describes Autopilot as an advanced driver-assistance system with features such as traffic-aware cruise control, automatic lane changes, and semi-autonomous navigation on certain roadways. The company’s website explains that there’s a standard Autopilot package and a more advanced package known as Full Self-Driving Capability, but both “are intended for use with a fully attentive driver, who has their hands on the wheel and is prepared to take over at any moment.”
Tesla’s website says that Autopilot features “require active driver supervision and do not make the vehicle autonomous.” Its cars are equipped with sensors to monitor that the driver’s hands are on the steering wheel and that triggers warnings and alerts if they are not. The website says: “If you repeatedly ignore these warnings, you will be locked out from using Autopilot during that trip.”
In recent years, automakers and artificial intelligence developers have been fine-tuning self-driving technology to address safety concerns and unpredictable road conditions. For now, NHTSA has federal guidelines for designing and building cars and is still in the process of coming up with a regulatory framework for automated driving systems, but state transportation authorities are still setting the rules for testing and operating them.
If you have any questions relating to any of the above, contact Donovan Potter, a lawyer in our Atlanta office, at 800-898-2034 or by email at [email protected]. Donovan handles automobile-related cases, including those including defective vehicles.
Other lawyers in Beasley Allen’s Personal Injury & Products Liability Section handle automobile product liability cases. If you have a specific question about an accident involving an autonomous vehicle, contact Donovan Potter. You can also contact Chris Glover in our Atlanta office, Evan Allen in our Mobile office and Cole Portis in our Montgomery office. They can be reached at 800-898-2034 or by email at [email protected], [email protected], or [email protected].
How To Identify A Products Case In A Motor Vehicle Accident
Beasley Allen lawyers handle a large number of product defect claims every year. Many of the cases are referred to us by other lawyers who either do not handle those types of claims or don’t have the resources to handle product liability litigation. It’s important for lawyers to know how to know when a defective product involves a motor vehicle accident. Ascertaining whether a product defect exists requires time, thorough investigation, and some know-how. If a lawyer fails to recognize indicators of a potential product defect, that lawyer may be significantly undervaluing a client’s claim or missing out altogether on a potential substantial recovery for the client.
The purpose of this article, written by Alyssa Baskam, a lawyer in our Atlanta office, who handles product liability cases, is to identify common indicators of a product defect claim to help lawyers spot potential product defects in their cases.
Alyssa will now give you some key information that will help you identify potential product liability cases. If you identify any of the following in one of your cases, our lawyers will be glad to speak with you about whether there may be a product defect claim to be made. So, let’s see what she has for you.
Evidence in the Vehicle at the Scene:
The following are indicative of a potential seatbelt failure:
- If the occupant was believed to be belted but is found unbelted post-incident.
- If the occupant was belted but nevertheless contacted the vehicle interior, resulting in injury.
- If the seat belt was latched post-incident, but the occupant was ejected or otherwise outside the belt.
- If the seat belt is “spooled” out or loose after the incident.
- If the belted occupant was injured, but the passenger compartment is intact.
The following are indicative of a potential airbag failure:
- If the airbag deployed in a slow (<10 MPH) impact.
- If the frontal airbag failed to deploy with obvious damage to the front bumper or sensor areas.
- If the side torso or head airbag failed to deploy with obvious damage to the side of the vehicle.
- If the side head airbag failed to deploy in a rollover crash.
The following are indicative of a potential tire failure:
- If the tread separated from the tire despite lack of “wear and tear,” to the tire.
The following are indicative of a potential fuel tank [design/location] failure:
- If a fire starts as a result of the collision (particularly a low-impact collision).
The following are indicative of a potential seat failure:
- If the seatback falls backward, particularly if it falls back to a completely prone position during an incident.
- If, despite being belted, the occupant is ejected or otherwise outside their seat following the collision.
- If a rear-seat occupant is injured from impact with the front seat.
The following are indicative of a potential roof crush [failure to maintain integrity] failure:
- If the roof was crushed five or more inches.
- If the roof was crushed sideways, creating an opening over the occupant’s head.
The following are indicative of a potential rollover failure:
- If the vehicle rolled over on the highway.
- If the road was paved, smooth, and dry.
- If the tire marks on the road end abruptly.
- If there is no “tripping mechanism” like a pothole or a curb.
The following are indicative of a potential door latch failure:
- If the vehicle’s door(s) do not stay closed during an incident.
The following injuries are indicative of a potential vehicle defect:
- Severe injury to the occupant combined with no airbag deployment.
- Severe injury to the occupant despite minor impact (with or without airbag deployment).
- Severe injury to the occupant inconsistent with the direction or type of impact sustained.
- Puncture wounds or “foreign body” indicated in post-wreck medical records.
Quite often, Beasley Allen lawyers receive calls from lawyers who have cases and think there may be a product claim based on the severity of the damages or other evidence present at the scene of the collision. The lawyers in our Personal Injury & Product Liability Section respond to those calls promptly. The above indicators are not conclusive – even if none of the above signs or injuries are present in your case, we would still love to speak with you about the facts of your case and to look at photos and other available evidence so we can help assess the possibility of a products case.
If you have any questions about any of the above, contact Alyssa Baskam at 800-898-2034 or by email at [email protected].
Beasley Allen Lawyer Investigates Robinson R22 Helicopter Crash For Injured Pilot
Tyrus Raymer was piloting a Robinson R22 helicopter last October when it crashed in Georgia. The pilot in the crash was seriously injured. Raymer hired Mike Andrews, who handles aviation litigation for our firm, to investigate the crash. Mike’s investigation is independent of the one being done by the Federal Aviation Administration (FAA).
Raymer took off from Gwinnett County Airport in Lawrenceville, heading to the airport in Winder to practice takeoffs and landings. After taking off from a touch-and-go landing and turning onto a left crosswind, Raymer says he heard a noise that sounded like metal scraping against metal shortly before the helicopter jerked. While he was immediately looked for a clearing to land, the aircraft jerked again and appeared to lose power. Unable to reach the clearing, the aircraft descended through trees and crashed into the ground near Winder. First responders arrived at the scene and took Raymer, who was injured, to a local hospital.
While this incident is still under investigation, preliminary information indicates a problem occurred with the belt tensioner and clutch, destroying the drive belts. When it arrived at the crash scene, the FAA discovered that the drive system v-belts, or drive belts, were shredded, and only a small portion of the belts was found. Ultimately, Raymer lost powered lift and was forced to attempt an autorotation landing.
The R22, manufactured by the Robinson Helicopter Company (RHC), is a popular aircraft because it was designed with individual consumers in mind and is not cost-prohibitive. However, Robinson helicopters, including the R22, utilize a unique drive system design that makes them susceptible to belt wear and tear. Issues of belt degradation appear to be at issue in this crash. Our investigation has found that other documented crashes resulted from drive belt failure.
A series of fatal aviation crashes involving the R22 where failure of either one or both rotor drive v-belts led to the incident prompted the Australian Transport Safety Bureau (ATSB) to investigate the reliability of the v-belts. Between 2004 and 2001, the investigation showed eight significant incidents, two that were fatal, reported to the ATSB “where failure or degradation of the v-belts has been central to the occurrence event.” The ATSB collected crash information and compiled it with data from other countries in its final report. Internationally, 21 occurrences were reported between 1991 and 2012 where v-belt failure contributed to the incident.
The agency’s crash analysis did not reveal any systemic safety issues but discovered that the drive belt reliability was “negatively influenced by a broad range of operational and maintenance-related factors,” including:
- High gross or overweight operations;
- High or excessive engine power settings (manifold pressures);
- Sheave misalignment and/or poor drive system condition; and
- Inadequate or infrequent inspections of the rotor drive system.
The R22 entered the market in 1979, and the unique design includes the horizontally-mounted piston engine that produces rotation energy and then transmits it to the main and tail rotor systems. The power is shared by two double-banded v-belts running on two sheaves or pulley systems. The lower sheave is fixed to the output flange of the engine crankshaft. It is mechanically connected to the upper sheave by an electrically-driven clutch actuator, as the ATSB explains. The upper sheave has a free-wheeling clutch, and this allows the drive shafts and motors to move freely when the engine is not operating or not otherwise driving the system.
Before the pilot starts the engine, the clutch actuator should be disengaged or retracted, giving the v-belts the necessary slack and allowing it to start without unnecessary load. This approach also helps keep the belts aligned within their sheaves. The pilot can then engage the clutch to begin the belt tensioning process, and the rotor blades should start to turn in less than five seconds, giving the helicopter lift power. Each step of the process and the required amount of tension on the belts much be precise to maintain v-belt alignment.
Over the years, the drive system on the aircraft has changed, including several revisions of the drive belt because of its high risk of failure. Still, the drive belts are likelier to fail than other drive system components, as the ATSB’s investigation confirmed. The last revision, Revision-Z, was introduced in March 2010. Fatal crashes that result from defective v-belts have decreased with each modification but still occur. Defect reports show that v-belt failures are often caused by stretching to the manufacturer’s specified limits, tie-band debonding, tie-band splitting, edge cord failure, or excessive wear.
Belt failures can occur with little to no warning, but often they are preceded by an onset of vibration or the smell of burning rubber. If one or both of the v-belts fail, pilots are instructed to enter autorotation immediately because the belt failure will shut off the engine’s power, and the aircraft will lose lift. Autorotation allows pilots like our client to use the airflow from a steep descent to drive the system and allows a controllable descent and landing.
The ATSB investigated a 2014 belt failure case, which demonstrates the R22’s unforgiving nature. The pilot of VH-HRX took the helicopter in for maintenance as required, and among other work, the belts were replaced. When R22 belts are new, they must be stretched through a particular process and activated for flight through another specific process, or failure will likely occur. Investigators learned that the pilot of VH-HRX engaged the clutch to continue the stretching process and subsequently left for a 10-day vacation.
When the pilot returned, he was unaware of the impact of statically stretching the belts for an extended time. In this case, investigators determined that the belts were statically stretched over an extended period and developed a degree of shape-set. When the pilot started the engine and engaged the clutch, one or both of the belts likely became displaced. The pilot was unaware, and the belt or belts deteriorated in flight as they continued to operate outside of proper alignment with the sheaves.
The agency determined that while R22 helicopters are suitable, light utility and training aircraft, but “[o]wners and operators should fully appreciate the nature and effects of the operational stresses placed on the helicopter, particularly if the machine is utilized in a dynamic and demanding manner… .” The agency also noted pilots, operators and maintainers should pay particular attention to the condition of and properly installing drive belts and other drive system components. They should also adhere to RHC’s inspection and maintenance requirements and be aware of belt failure indications during flight to implement emergency protocols established by RHC, including entering autorotation.
RHC issued Safety Notice SN-33 addressing the risk of v-belt slack generally. However, investigators determined that the company did not specifically warn that statically stretching the belts increased the risk of belt displacement the next time the aircraft was started.
Mike will continue his investigation of the Raymer crash and will likely be filing suit on the client’s behalf. We will keep readers updated on any significant findings resulting from the firm’s continuing investigation of this crash.
Mike Andrews 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 or any aspect of the Boeing litigation, contact Mike at 800-898-2034 or by email at [email protected].
PREMISES LIABILITY LITIGATION
Premises Liability: Distinguishing A Negligent Security Case From An Ordinary Negligence Case
Beasley Allen lawyers are often contacted to investigate and pursue various types of premises liability cases. Negligent security cases tend to get the attention of many personal injury lawyers in Georgia due to the complexity of the legal issues and, often, catastrophic damages. It is apparent that there is a negligent security case when a third party (non-resident) criminal assailant enters the premises and causes serious physical injury or death to an invitee (i.e., tenant, customer, etc.) and the property owner failed to take reasonable and adequate measures to prevent foreseeable crime. A question arises as to what type of premises case is available when the property owner employs the person committing the crime?
Donovan Potter, a lawyer in our Atlanta Office, is investigating a case where the client was stabbed to death by a man employed by the property owner. The man who stabbed the client was employed as the live-in property manager and maintenance man for the property where the client lived. This is not a typical negligent security case because the property owner’s employee, not a third party, committed the tortious conduct that caused the client’s death. This type of case is an ordinary negligence case where you pursue negligence claims against the employer through Respondeat Superior. Additionally, since the defense will likely assert that the employee’s conduct was intentional, plaintiffs must also assert and prove negligent hiring, training, supervision and retention claims against the employer. These causes of action against the property owner/employer are independent of the employee’s conduct.
If you have a similar case that you need assistance in pursuing, Donovan Potter and Parker Miller in our Atlanta Office are the lead Beasley Allen lawyers handling these types of cases and they know what evidence is needed to prove a case. If you have any questions about these cases, contact Donovan or Parker at 800-898-2034 or by email at [email protected] or [email protected].
Construction accident claims life of 22-year-old Alabama man
Beasley Allen is investigating a deadly work-related construction accident that took the life of a 22-year-old Irvington, Alabama man on Jan. 27, 2021. William Khemmanivanh had just graduated from Southern Union State Community College months earlier and started his first job at SPI/Mobile Pulley Works in Mobile when the accident occurred.
The worker was on a bridge crane about 35 feet in the air when he was pulled into a pulley apparatus. Rescue workers recovered his body and he was pronounced dead at the scene. Occupational Safety and Health Administration is investigating the incident.
SPI/Mobile Pulley Works specializes in building dredge equipment and wear components. The company was formed in 2003 when Steel Processors purchased 110-year-old Mobile Pulley company. The location where the accident occurred houses a foundry, machine shop, and fabrication facilities.
In May 2010, another SPW/Mobile Pulley Works worker was killed while working on the roof of a foundry after he fell approximately 27 feet through a skylight onto the concrete floor below. Tragically, construction accidents occur much too often and many are preventable. According to OSHA, 5,333 workers died on-the-job in 2019, 20% of who were working in construction. Approximately 36.5% of all deaths in the workplace occurred due to employees falling such as while working in areas with unprotected sides or holes, or improperly constructed walking or working surfaces. Other fall-related fatalities occurred when workers fell from ladders, roofs, scaffolding or other work surfaces without proper fall protection. Lack of fall protection in construction is the most frequently cited OSHA standards violation.
Construction workers are required to handle heavy machinery, dangerous equipment, work in great heights, and perform their job in inherently dangerous environments. Construction accidents resulting in serious on-the-job injuries or death can occur when the construction company doesn’t take proper precautions to ensure the safety of its workers. These incidents can also be caused when other companies involved in a construction project that do not employ the injured worker act negligently. In some cases, defective materials or safety equipment may be to blame. Beasley Allen’s Evan Allen says:
Because there are many potential parties at the site of a construction accident that seriously injures or kills a worker, there are many possibilities for potential recovery. An experienced industrial accident lawyer can help construction workers or families of workers injured or killed on the job get the compensation they deserve.
Beasley Allen handles a variety of cases related to workplace safety. While all workers should be guaranteed a safe working environment, all too often we handle cases of serious injuries and deaths resulting from a hazardous work environment. Many times, our investigation reveals defective or dangerous machinery was involved, or employers failed to provide adequate protections or ignored safety regulations.
If you have a client in need of an experienced construction accident lawyer, contact Kendall Dunson or Evan Allen, two of the lawyers in our Personal Injury & Products Liability Section who handle workplace litigation for our firm. You can call them at 800-898-2034 or by email at [email protected] or [email protected].
Dairy Plant Worker Suffers Below-The-Knee Amputation Caused By Defective Conveyor System
When a worker is seriously injured or killed on the job, it is essential to look closely at the working environment. Many times, Beasley Allen lawyers investigating a workers’ compensation case discover a defective industrial product, such as dangerous machinery, is to blame for the worker’s injury or death. This may present a third-party product liability claim for the worker, which will help to provide compensation for the injured worker and their family as well as damages provided for the family for the death of a worker.
The following scenario happened to a young man, Fitsroy Campbell, who was injured while working for Prairie Farms Dairy, Inc., in Birmingham, Alabama, last July. The worker’s right foot went through an unguarded part of a floor conveyor system carrying milk. His foot got stuck in the machine’s chain and was mangled, resulting in a below-the-knee amputation. Once a hard worker, the injury has left him permanently disabled.
Kendall Dunson, a lawyer in the firm’s Personal Injury & Products Liability Section, was hired to represent Campbell and Kendall has filed a lawsuit on his behalf. Kendall’s client is a young man, and because of the negligence involved, his life has changed forever. He will experience pain and physical challenges for the rest of his life. Without completely changing his skillset, the young man’s ability to make a living is diminished. Prairie Farms and other defendants whose actions contributed to his injuries must be held accountable.
On the day of the incident, Campbell was working in the smaller cooler where the milk is pasteurized. A defect in the machine caused milk stacks to get stuck, and an employee would have to manually pull the stack into the appropriate location to keep the stacks moving. The conveyor system’s area where the milk stacks get lodged was unguarded and offered no protection to employees to keep them from suffering injuries like our client’s.
The lawsuit alleges that Prairie Farms failed to maintain a safe working environment. Specifically, it failed to maintain and either removed or bypassed the safety devices designed to prevent the injury Campbell suffered. Prairie Farms failed to train, direct and warn Campbell and others who would be in harm’s way. We also believe other defendants, including the maker of the floor conveyor system, were negligent in the design, installation, assembly, and maintenance of the machine or instrumentality that caused or contributed to our client’s injuries.
Kendall is working with Anthony Ifediba of the Ifediba Law Group, P.C. in Birmingham, in representing Campbell. If you need more information about a potential workplace injury caused by a defective product or by an employer’s negligence, you can contact Kendall, who works in our Montgomery office, or Evan Allen in our Mobile office or Chris Glover in our Atlanta office. You can call them at 800-898-2034 or by email at [email protected], [email protected] and [email protected].
Texas Supreme Court Upholds $15 Million HVAC Burn Verdict
Last month, the Texas Supreme Court upheld a $15 million verdict for an electrical technician severely burned while repairing an Emerson Electric heating, ventilation and air conditioning unit. The court rejected Emerson’s attacks on the underlying evidence giving rise to the plaintiffs’ claims and on a specific jury charge in the case.
The high court found that a Tarrant County District Court jury had legally sufficient evidence to support its defective design finding against Emerson Electric Co., Emerson Climate Technologies Inc. and its brand Fusite. The court also ruled that the trial court’s jury charge did not result in an improper verdict.
Jurors found Emerson improperly failed to warn of known risks with an unreasonably dangerous product. The Emerson entities were 90% at fault for plaintiff Clarence Johnson’s damages after being burned when scalding liquids burst out of the unit. Johnson, a repairman with more than 30 years of experience on the job, had second-and third-degree burns over 60% of his body.
The ruling upholds a Second Court of Appeals decision from October 2018 in favor of plaintiff Johnson. During the trial, Emerson had argued the plaintiff should have known about the risk of the scalding liquids based on his experience in the industry. The plaintiff argued that while he knew of a general risk with the product, he associated it with older compressors, not new ones like the one on which he was working. According to the court’s opinion, Fusite had used an older model of an electric terminal in a new compressor that was “significantly more susceptible to catastrophic failure.”
On appeal, the company argued the evidence didn’t back the jury’s finding that the compressor in the HVAC unit was unreasonably dangerous. The court disagreed, citing testimony from Emerson’s corporate representative that it would have been a good idea to provide a warning about the risk of what’s called “terminal venting,” when a malfunctioning compressor could spray oil and refrigerant. The court said:
The jury heard that Fusite simultaneously marketed two designs that accomplished the same function for essentially the same cost and had data before it that showed that the older design was significantly more likely to terminally vent and cause serious injury.
This decision was significant for several reasons. The case drew amicus attention from the Product Liability Advisory Council, the National Association of Manufacturers, the U.S. Chamber of Commerce and the Texas Association of Business. Each supported Emerson and Fusite on appeal.
Plaintiff Johnson is represented by Jeffrey S. Levinger and J. Carl Cecere of Levinger PC and Andrew L. Payne and Shannon Turner Hays of PayneMitchell Law Group. The case is Emerson Electric Co. v. Clarence Johnson et al. (case number 18-1181) in the Texas Supreme Court.
Temporary Laborers And The Conundrum Of Workers’ Compensation
On-the-job accidents are some of the most common causes of injuries Beasley Allen lawyers in our Personal Injury & Products Liability Section handle. As most know, those employees injured on the job are often entitled to workers’ compensation benefits. Workers’ compensation is referred to as an exclusive remedy, meaning that it is often an injured employee’s only option for recovering damages due to their accident. Simply put, an employee cannot sue their employer for negligence if they are subject to worker’s compensation.
Workers’ compensation is a no-fault system. The injured employee will receive benefits for lost wages, medical care and rehabilitation, even if the worker plays some role in causing the injuries.
The no-fault system provides a quick and easy remedy for minor on-the-job injuries. In minor injury cases or when the employee may have contributed to their accident, it is likely the best remedy and only option.
However, if the on-the-job injury is severe, workers’ compensation benefits will likely not adequately compensate the injured employee. Thus, it is crucial to investigate severe on-the-job injuries and determine if there is a potential for any third-party liability. Unfortunately, a troubling trend in employment relationships is illuminating a serious flaw in the system.
Workers’ compensation is intended to benefit the injured employee and the employer. In theory, the system works to the benefit of each party. The injured worker is entitled to lost wages and medical care until they can return to work. They do not have to prove fault, so the employee receives the benefits quickly. In exchange, employers are assured the injured employee will not sue them for negligence, and the only remedy is statutorily limited and capped.
The employer must maintain workers’ compensation coverage or a self-insurance fund. At the heart of the system is the employee-employer relationship. Workers’ compensation should only apply to those two parties who have agreed to this give-and-take agreement. However, quite often, third parties that are not part of the employer-employee relationship are reaping the benefits of the workers’ compensation system.
In recent years, a troubling trend has emerged in the industrial work setting in Alabama. Too often, industrial plants and other labor-intensive businesses are utilizing temporary work agencies, staffing agencies and labor brokers to supply workers. Instead of hiring full-time employees, whom they would need to maintain workers’ compensation coverage, they choose to hire temporary labor through staffing companies.
These “temporary” laborers are typically not given any benefits from the business where they are working. Instead, the temp agency maintains workers’ compensation for the employees. The plant or business pays the staffing company, who then pays the worker.
The result of this practice is troubling. Too often, these workers are placed in extremely dangerous jobs and not adequately trained or supervised. Inevitably, these practices can lead to catastrophic injuries. Even though the plant or business where the employee works is not the injured worker’s employer and does not maintain workers’ compensation on the laborer, the employee typically cannot sue for negligence.
The dual employment doctrine enables the industrial plant to claim the injured worker as their employee after the fact. Despite contracts and documents clearly stating the worker is only the employee of the staffing agency, in the eye of the law, the injured worker is an employee of both.
Our lawyers see this scenario time and time again. The injured worker receives workers’ compensation from the staffing agency, but the business where the worker was injured gets off the hook. In essence, industrial plants can bring on temporary workers, provide no benefits whatsoever, place the laborers in the most dangerous of jobs, employees are injured or killed, and the plant pays no workers compensation benefits and maintains protection from negligence lawsuits.
The workers’ compensation system is intended to be a give-and-take relationship. As is so often the case, the working man or woman gets the short end of the stick on this bargain. The laborers are not getting anything in return for losing their right to sue for negligence. Beasley Allen lawyers continue to fight this trend each time it arises. Importantly, each work arrangement is different.
There are scenarios where temporary employees are not deemed dual employees, and negligence actions can be brought. It is very important to thoroughly understand the work arrangement. Ultimately, the test is extremely fact-specific, and the outcome is often uncertain until thorough discovery has been conducted. It is extremely important in conducting discovery to understand the nuances in the law and the angles that must be taken to get outside of workers’ compensation. Hopefully, Beasley Allen lawyers will be able to create case law to close this loophole. If you need more information, contact Evan Allen, a lawyer in our Mobile office, at 800-898-2034 or by email at [email protected].
MASS TORTS LITIGATION
DuPont Entity’s $50 Million Cancer Verdict Reduced To $40 Million
An Ohio federal judge has reduced a couple’s $50 million jury verdict to $40.3 million in their personal injury suit alleging E.I. du Pont de Nemours and Co. contaminated drinking water with a former Teflon ingredient that caused a man’s testicular cancer. It should be noted that U.S. District Judge Edmund A. Sargus found the award not to be excessive.
In his order, the judge partially granted DuPont’s request for a remittitur, challenging Travis and Julie Abbott’s $50 million jury trial win in their personal injury case against the Delaware-based chemical company.
Judge Sargus agreed with DuPont that the $10 million in damages awarded to Julie Abbott for her loss of consortium claim should be reduced to $250,000 under the Ohio Tort Reform Act, which caps the amount of noneconomic damages recoverable in tort actions. However, Judge Sargus said that Travis Abbott’s award was not excessive or “a seriously erroneous result” in light of the evidence. The judge’s order says:
Mr. Abbott’s injuries were fully supported by the evidence presented at trial, and the jury’s award was a fair, reasonable attempt to compensate Mr. Abbott for those injuries.
The decision to reduce the jury verdict is the latest chapter in one case pending in a decades-long multidistrict litigation over allegations DuPont’s plant on the Ohio River dumped a former Teflon ingredient — referred to as C-8 — that contaminated drinking water in Ohio and West Virginia and allegedly caused nearby residents’ cancers.
Dow Chemical Co. merged with E.I. du Pont de Nemours and Co. in 2017, split into a trio of publicly traded companies. E.I. du Pont de Nemours and Co. is referred to in case filings as DuPont.
Following DuPont’s $671 million settlement that resolved roughly 3,500 claims tied to the alleged water contamination, Travis and Julie Abbott sued DuPont in November 2017, alleging its chemical pollution caused Travis’ testicular cancer, requiring the removal of both of his testicles. The first was removed when he was 16 years old, and the second when he was a married man with plans of having children.
The case went to a jury trial in January 2020, along with a similar lawsuit by Angela and Teddy Swartz. After more than five weeks, a jury was deadlocked on the Swartz claims, causing the judge to declare a mistrial in that case. Still, jurors awarded Travis Abbott $40 million in damages and Julie Abbott $10 million on her loss of consortium claim.
In December, Judge Sargus denied the defense request for a mistrial, noting that DuPont had “numerous” opportunities to object to the procedure for questioning the juror during trial but failed to do so, thereby waiving its objection. There’s no evidence the juror was unduly coerced, particularly since she stood by her verdict when she was polled.
The judge also rejected DuPont’s argument that the verdict should be reduced to $8 million. Still, he agreed with DuPont that the Ohio Tort Reform Act applies to Julie Abbott’s noneconomic loss of consortium claim, and therefore the most she can recover is $250,000. The judge reasoned that she’s not entitled to the statute’s catastrophic injury exception since she didn’t lose a limb and her husband didn’t suffer an “incapacitating physical injury.”
Judge Sargus, however, concluded that the rest of the verdict award was supported by the evidence, and there’s no evidence that the jury was “inflamed by passion or prejudice” by the plaintiffs’ counsel against the company, particularly since the jury was deadlocked on the Swartz case.
The Abbotts are represented by Jon C. Conlin, F. Jerome Tapley, Elizabeth E. Chambers and Nina M. Towle, Mitchell Theodore and Brett Thompson of Cory Watson PC.
The MDL is In re: E.I. du Pont de Nemours and Co. C-8 Personal Injury Litigation (case number 2:13-md-2433) in the U.S. District Court for the Southern District of Ohio. The order relates to Travis and Julie Abbott et al. v. E.I. du Pont de Nemours and Co. (case number 2:17-cv-00998) in the same court.
TOXIC TORT LITIGATION
A Split Amongst The States: Viability Of “Take-Home” Exposure Claims In Asbestos Litigation
Charlie Stern, one of the Beasley Allen lawyers handling asbestos-related litigation, will help our readers understand more about this complex and complicated litigation. He will discuss “Take-Home” asbestos exposures in some detail. So, let’s see what Charlie has to say on the subject.
The Take-Home asbestos exposures occur when an individual working with or around asbestos is exposed and then takes that asbestos home on their clothes and/or person. Often, spouses and children of the exposed worker are then unknowingly exposed to that asbestos via personal contact and/or laundering the asbestos-covered clothes.
By the 1960s, it was known that asbestos could be carried home from its original source and cause the family members of workers to be exposed to it and develop mesothelioma. As of 1970, when OSHA was created, its very first regulations included requirements that employers whose employees worked with asbestos were given showers and/or places to change out of those clothes after work so that they did not bring the asbestos back to their families.
Despite the knowledge that “take-home” exposures can cause mesothelioma, not all states allow individuals who develop mesothelioma from “take-home” exposures to pursue such a claim. There are two general approaches that courts, depending on the jurisdiction, take when analyzing whether a duty exists, thus allowing for a claim if that duty was breached.
One approach focuses on the relationship between the plaintiff and defendant as the most important consideration in determining whether a duty exists (the “Relationship Between the Parties” analysis). The other approach focuses on the foreseeability of harm as the most important factor in making the duty determination (the “Foreseeability of a Harm” analysis).
The states that utilize the Foreseeability of a Harm analysis have found that a duty exists, and claims against the product manufacturer, premise owner and/or employer responsible for the “take-home” exposures can go forward. Virginia, Alabama, California, Delaware, Tennessee, Washington, New Jersey, and Louisiana utilize the Foreseeability of a Harm analysis and allow such claims.
States that utilize a Relationship Between the Parties analysis sometimes find that no duty exists depending on whether the court deems a relationship between the plaintiff and defendant. States like Illinois, Michigan, Iowa, South Dakota, Pennsylvania, and New York rely on the Relationship Between the Parties analysis and have found that a duty does not usually exist in the “take-home” context.
Many other states are undecided on the issue, which continues to be an evolving and rapidly changing area of tort law.
If you have questions or comments concerning the above, contact Charlie Stern, who has extensive background in this litigation, at 800-898-2034 or by email at [email protected].
EPA Advances Efforts To Address PFAS In Industrial Discharges
The Environmental Protection Agency (EPA) has taken a significant step towards regulating per-and polyfluoroalkyl substances (PFAS) under the Clean Water Act. In March, it issued an advance notice of a proposed rulemaking that could lead to development of effluent limitations guidelines, pretreatment standards, and new source performance standards for PFAS manufacturers, formulators, and possibly other industries which use the chemicals in their manufacturing operations. These industries include pulp and paper manufacturers, textile and carpet manufacturers, metal finishing companies, and commercial airports.
Only PFAS manufacturers are currently regulated. Now, the EPA is seeking information on PFAS formulators (i.e., those that use raw PFAS to make consumer goods) and leaves the door open on other entities which could be regulated. The EPA is currently conducting a Multi-Industry Detailed Study of industrial PFAS use in the industries noted above for their historical discharge of PFAS. It is also seeking data about PFAS emitted from various sources to fully understand the fate and transport of these chemicals into the environment. This data is needed for the EPA to establish effluent limitations guidelines, pretreatment standards, and new source performance standards are technology-based limits for industrial dischargers.
The EPA also seeks information and data, including costs, for potential treatment technologies to remove PFAS. These include biological treatment, reverse osmosis, ultrafiltration, and ion exchange, all of which can be expensive depending on the unique circumstances of the discharge. The current administration appears committed to moving quickly to address PFAS through multiple statutes, including the Clean Water Act, the Safe Drinking Water Act, the Toxic Substances Control Act, and CERCLA.
If you have any questions, contact Ryan Kral, a lawyer in our Toxic Torts Section, at 800-898-2034 or by email at [email protected].
Source: National Law Review
The Paraquat Litigation
Litigation involving paraquat, a popular weed-killing herbicide used in commercial applications, is underway and is growing in number of filed cases. The EPA has classified paraquat as a restricted use pesticide because of its highly toxic nature, meaning that only licensed applicators can purchase this herbicide. Despite this, paraquat is one of the most widely used industrial herbicides even though it has been banned in 32 countries globally – including China.
Paraquat is legal in the United States, and its popularity continues to grow. Last year alone, United States farmers used more than 8 million pounds of paraquat over nearly 15 million acres of land. Paraquat is used mainly with certain crops, including soybeans, corn, cotton, vegetables, and fruit. Because of its commercial success, there are many brands of paraquat on the market, but one of the most popular brands is Gramoxone.
Recent studies have linked exposure to paraquat to an increased likelihood of developing Parkinson’s Disease, which currently has no known cure. Litigation involving the highly toxic paraquat is picking up around the U.S. Plaintiffs allege in the litigation that exposure to herbicides containing paraquat resulted in a diagnosis of Parkinson’s Disease.
Beasley Allen is proud to be involved at the ground level of this new and evolving litigation. Over a dozen lawsuits have already been filed in state and federal courts in several states across the United States. These lawsuits name as defendants both Syngenta Crop Protection LLC, a Swiss-based agrichemical corporation, and Chevron Corporation, which previously held the rights to sell paraquat. Recently, a request was made to the Judicial Panel on Multidistrict Litigation to create a centralized multidistrict litigation (MDL) in the federal district court of Northern California. Lawyers in Beasley Allen’s Toxic Torts Section are investigating cases and will provide updates as this litigation unfolds. Stay tuned!
The ONGOING Roundup Litigation
An Update On The Roundup Litigation
The lawyers who filed the Proposed Class Settlement have to respond to the heavy criticism surrounding this pending proposal currently before Judge Chhabria in the Northern District of California. The lawyers requested and were subsequently granted an extension of time to respond to the numerous critics of the proposed class settlement, including a coalition consisting of the National Trial Lawyers, over 90 law firms, and 167 individual lawyers. The lawyers backing this proposed class settlement cited the voluminous objections as grounds for the needed time extension. Defendant Monsanto joined in on the lawyers’ request by these lawyers for an extension of time. Beasley Allen lawyers are among those opposing parts of the proposal, especially the futures class aspect.
With this additional time, the lawyers made several amendments to the currently proposed class settlement before the Court. This current version of the proposed class settlement is the third attempt to satisfy the court. The first version, which was put before the Court by this same group of lawyers nearly a year ago, elicited heavy criticism by lawyers involved in the Roundup litigation and Judge Chhabria himself. Before the Court could rule on this first proposed class settlement, the lawyers withdrew it. Thus far, the third amended version is fairing no better amongst the lawyers involved in the Roundup litigation and plaintiff lawyers in general.
Beasley Allen lawyers are strongly opposed to the latest attempt by Buyer (Monsanto) to avoid taking full responsibility for their conduct, past and current, that has harmed thousands of innocent victims and harm more folks in the future.
The proposal for a class action settlement remains largely the same, even though several amendments attempted to make the proposed class settlement more level-handed. A few changes include: expanding the Advisory Science Panel; extending the claims deadline from 180 days after the diagnosis to one year; and updating the class definition to exclude more individuals.
These changes, however, remain too little to change the opinion and perception of this proposed class settlement. The proposal still includes a four-year stay on any litigation against Monsanto related to Roundup; no option for seeking punitive damages; limited transparency on the opinions of the Advisory Science Panel; and most importantly, dubious compliance with both the Federal Rules of Civil Procedure and the U.S. Constitution.
Beasley Allen lawyers are actively working in opposition to this proposed class settlement. Currently, the proposed class settlement is set for oral argument before Judge Chhabria on May 12, 2021. We have filed our formal opposition with the court.
Beasley Allen lawyers are currently representing 3,500 clients who have been exposed to Roundup and developed non-Hodgkin’s lymphoma. Our lawyers are pushing forward with trial dates for our clients in both federal and state courts. They are confident that these critical trials will advance our clients’ goals toward fair and reasonable results, either through trial or settlement.
Lawyers on our Roundup Litigation Team are available to answer any questions you might have. For more information, contact one of the members of the Team. Rhon Jones, who is the head of Beasley Allen’s Toxic Torts Section, is in charge of this litigation.
Beasley Allen Roundup Litigation Team
Beasley Allen lawyers are currently representing 3,500 clients who have been exposed to Roundup and developed non-Hodgkin’s lymphoma. Rhon Jones, William Sutton and Matt Pettit are on our Roundup Litigation Team. They will answer any questions you might have. 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
There has been no slowdown in class action litigation around the country. In fact, class action lawsuits appear to be on the increase in number. The following are some recent significant happenings and settlements in this litigation.
Virginia Federal Judge Denies Motion To Dismiss In Investor Suit
A Virginia federal judge has denied motions to dismiss an investor securities class action against Altria Group, Inc. (Altria) and JUUL Labs, Inc. (JUUL). Defendant Altria is a tobacco company headquartered in Richmond, Virginia. Plaintiffs represent a putative class of all persons and entities who purchased or otherwise acquired Altria securities between December 20, 2018, and February 21, 2020.
The class alleges Altria and JUUL defrauded the investors by not disclosing the risks created by JUUL’s marketing to underage consumers when Altria bought a 35% stake in JUUL in December 2018 for $12.8 billion. The suit alleges in December 2018, and for more than a year following, Altria and JUUL assured investors that JUUL never intended for youth to be consumers of the product and failed to disclose that JUUL was, in fact, marketing to youth.
U.S. District Judge David J. Novak found the class of Altria investors had alleged “an abundance of facts showing that” JUUL’s marketing targeted underage consumers and “sufficient facts” demonstrating that Altria and JUUL knew of the marketing plan and the risks it posed to each company. Judge Novak also found the companies concealed this from the investors and found “disclosure of these risks by Altria and JUUL would have altered the ‘total mix’ of information available that a reasonable investor would have considered.”
Altria began experiencing drops in stock prices in April 2019 when the FDA started investigating injuries suffered by children and young adults related to vaping. In August 2019, the Federal Trade Commission began an investigation into “whether JUUL used influencers and other marketing practices to appeal e-cigarettes to minors.” This resulted in another drop in stock prices which continued into the fall of 2019 after Altria called off a planned $200 million merger with Philip Morris International “due to scrutiny of the vaping industry and the company’s 35% stake in market leader JUUL,” which had just announced that it was the subject of another federal investigation.
Eventually, Altria would take an $8.6 billion write-down on the JUUL investment. By February 2020, Altria had reportedly become the subject of a U.S. Securities and Exchange Commission investigation over the risks it had disclosed associated with the investment.
The class contends the drops in stock price were the direct result of a “campaign of deceit” by Altria and JUUL “through sophisticated mass media and social media communications, advertisements and otherwise, about the purpose and dangers of JUUL products.”
Altria’s and JUUL’s motions to dismiss argued JUUL’s intent to market to underage consumers was already public knowledge because of other sources of information and JUUL’s own admission regarding the problem of underage consumers using vaping products. Judge Novak stated in his opinion:
the problem of youth usage differs from JUUL’s direct efforts to target youths,” and that those problems pose different risks to the value of JUUL and, resultingly, the value of Altria. The fact that defendants acknowledged the problem of youth usage does not absolve them from liability for misrepresenting that they intentionally caused the problem.
Altria and JUUL also argued the suit failed to claim intent to mislead investors. Judge Novak said the investors effectively claimed Altria had “staked its future on JUUL, increasing the need and incentive to omit or misrepresent the serious risks created by JUUL’s marketing to youth.” Judge Novak also said further:
Moreover, the allegations support the inference that JUUL knew that it needed to misrepresent or omit its youth marketing practices to shield itself from future litigation and regulatory action, which could decrease the value of both JUUL and Altria.
Tribal Lenders Must Pay Class $50 Million For Inflated Interest Rates
A Virginia federal judge has approved a $50 million class action settlement against entities related to a financier that issued predatory loans with inflated annual rates of more than 440% and avoided ramifications by partnering with Native American businesses for immunity.
The class of borrowers, led by Darlene Gibbs, accused the three main entities — TCV V LP, a group of Sequoia Capital companies, and National Credit Adjusters LLC — of predatory loan structures that violated the Racketeer Influenced and Corrupt Organizations Act.
The model, according to an amended class action complaint in October, is when predatory entities partner with tribal businesses, which shields them from legal trouble for their unlawfully inflated interest rates due to tribal law and sovereign immunity.
Plain Green LLC, Great Plains Lending LLC and Mobiloans LLC are tribal businesses that issued loans with inflated rates. U.S. District Judge M. Hannah Lauck, in her order, reaffirmed canceling all outstanding debts from these three lending institutions, totaling around $383 million. Judge Lauck wrote:
Based on the papers filed with the court and the presentations made at the final fairness hearing, the court finds that the settlement agreement is fair, adequate, and reasonable.
The settlement stipulates that anyone in the U.S. who has ever borrowed from Great Plains, who borrowed from Plain Green before June 2016 and borrowed from MobiLoans before May 2017, may get money from the settlement fund, which will be collectively paid by the Sequoia companies, TCV and NCA.
The lead plaintiffs filed the proposed class action in 2019, following five other similar suits lodged since 2017. Think Finance LLC, a major perpetrator of the model was a named party in the earliest suit, and each case targeted different components of the alleged predatory lending.
The October amended complaint accused the Sequoia entities and TCV, which are both shareholders of Think Finance, of financing its allegedly unlawful behavior and claims NCA collected on the loans with “illegally high interest rates.”
While Virginia normally doesn’t permit annual interest rates to exceed 12%, the loan recipients had interest rates “often between 118% and 448%, if not higher, according to the suit.
Gibbs and the other named plaintiffs are represented by Amy Leigh Austin, Craig Carley Marchiando, Leonard Anthony Bennett and Kevin Anthony Dillon of Consumer Litigation Associate; Anna Claire Haac of Tycko & Zavareei LLP; and Casey Shannon Nash, Kristi Cahoon Kelly and Andrew Joseph Guzzo of Kelly Guzzo PLC.
The Sequoia entities are represented by Patrick James Stafford and Shon Morgan of Quinn Emanuel Urquhart & Sullivan LLP. NCA is represented by Patrick Oglesby Daugherty of Van Ness Feldman LLP and Charles Kalman Seyfarth and Elizabeth Scott Turner of O’Hagan Meyer PLLC.
The case is Gibbs et al v. TCV V LP et al. (case number 3:19-cv-00789) in the U.S. District Court for the Eastern District of Virginia.
WageWorks Reaches $30 Million Settlement In Investors’ Padded Revenue Suit
WageWorks has agreed to pay $30 million to settle a proposed securities fraud class action in California federal court accusing it of padding its revenue reports with money it was never supposed to get. Investors are asking for preliminary approval of the settlement.
The investors also asked the court to certify, for the settlement, two classes made up of the “many hundreds” of those who bought WageWorks common stock shares between May 2016 through March 2018 and those who bought WageWorks Inc.’s public offering shares in June 2017.
The investors argue that the deal, which provides them with more than 20% of their estimated potential damages, is fair, given the risks of a trial. The investors said:
From the inception of the action, defendants vigorously denied (and continue to deny) all of the claims and arguments made by lead plaintiffs. Any trial of the action would have no certain outcome and likely would involve lengthy appeals.
The class of common stock buyers is estimated to ultimately recover an average $1.47 per share, while those who bought into the public offering are estimated to pull in $1.96 per share, the investors said.
Co-lead plaintiff Government Employees’ Retirement System of the Virgin Islands sued the company in March 2018. The latest version of the since-consolidated suit, which was most recently amended in May 2019, claims the company and its leadership “issued or otherwise engaged in a series of materially false and misleading statements to, and omissions from, the investment community regarding WageWorks’s financial results and performance metrics.”
Specifically, the investors claimed that the company had improperly accounted for money it “had not earned and for which it was not entitled to be paid” that it stated it would receive in connection with a contract with the U.S. Office of Personnel Management.
In June, U.S. District Judge Jeffrey S. White denied the company’s dismissal motion. He determined that its alleged failure to share some key details about its finances suggests “deliberate recklessness because it indicates that senior management possessed information that, had it been communicated, would have indicated that the financial reporting was false.”
Judge White also said that concerns raised by WageWorks’ accounting firm, KPMG, “about ‘management override of controls’ — not ‘contract interpretation’ or oversight failures — suggests that WageWorks’ management was not merely negligent, but actively overrode financial reporting controls.”
The investors are represented by Jeffrey A. Barrack, Stephen R. Basser and Samuel M. Ward of Barrack Rodos & Bacine.
The case is In re: WageWorks Inc. Securities Litigation (case number 4:18-cv-01523) in the U.S. District Court for the Northern District of California.
$56 Million Settlement Ends Investor Suit Ahead Of Trial
Private prison operator CoreCivic Inc. has agreed to pay $56 million to end an investor class action accusing it of misleading shareholders about its facilities’ quality, efficiency, and regulatory compliance ahead of a looming Tennessee federal court trial.
The company notified its investors in a release on April 16. Aside from the payout, the details of the proposed settlement were not immediately available. The trial was scheduled for May, but the case was stayed.
Investors sued CoreCivic, and its top executives in 2016 after then-Deputy Attorney General Sally Q. Yates said in an August 2016 public memorandum that the federal government’s use of private prisons would be phased out in response to the conclusions of an Office of the Inspector General report on the Bureau of Prisons’ monitoring of private prison facilities like those operated by CoreCivic.
Among that report’s findings were that so-called contract prisons generally “incurred more safety and security incidents per capita than comparable BOP institutions.” The revelation of and response to these alleged shortcomings caused CoreCivic’s stock to fall by nearly 40%, investors alleged in an amended complaint filed in March 2017.
The investors’ suit sought awards of unspecified damages, attorney fees and other costs on behalf of a proposed class of purchasers of CoreCivic securities between Feb. 27, 2012, and Aug. 17, 2016.
In December 2017, U.S. District Judge Aleta A. Trauger said that lead plaintiff Amalgamated Bank had put forward enough allegations to support its “central theory of liability” — namely, that the high-quality, low-cost business model touted by CoreCivic and its executives were belied by the facts on the ground — and show why those alleged deficiencies would have mattered to investors. The judge rejected CoreCivic’s dismissal bid.
The investors are represented by Christopher M. Wood of Robbins Geller Rudman & Dowd LLP. The case is Grae v. Corrections Corp. of America et al. (case number 3:16-cv-02267) in the U.S. District Court for the Middle District of Tennessee.
Three Firms Selected To Lead Robinhood Order Flow Suits
A California federal judge on April 12 consolidated five putative class actions from Robinhood users over the company’s failure to disclose the processes of payment for order flow. U.S. District Judge Yvonne Gonzalez Rogers granted the unopposed motion from one of the five plaintiffs and stated in her order:
That said, the court is concerned that the leadership structure is too top heavy and may result in extra fees and costs. Within five business days, lead counsel shall file with the court an outline of the structure and anticipated lead on responsibilities and shall identify how lead counsel intend to ensure that this structure will not result in inefficiencies and duplicative fees and costs.
The allegations of the traders predate the GameStop frenzy that pushed Robinhood into the national spotlight earlier this year. According to the now consolidated suits, Robinhood failed to secure the best possible execution for many of its trades, a practice that, according to regulators, cost users roughly $34 million.
Users Isaac Landreth and Jaime Marquez alleged in March, in one of the five suits, that they had invested tens of thousands of dollars using Robinhood’s trading platform, but that the company failed to properly explain how it made money and at times gave customers a worse deal than its competitors. The complaint said:
[Robinhood] omitted, concealed, and misrepresented its order flow practices and its execution quality to continue growing its customer base and encourage its customers to continue trading.
The complaint in that suit names Robinhood Financial and two affiliates and aims to pull together a class of users who placed trade orders through the app from about September 2016 through June 2019.
While Robinhood offers commission-free trades for several years, it failed to adequately explain another cost associated with trading, known as payment for order flow, Landreth and Marquez said. They also accused Robinhood of cutting an unusual deal with outside trading firms, whereby it kept more than the usual amount of order-flow payments for itself and spent less improving customers’ costs. The complaint said:
Approximately 20% of the order flow compensation went to price improvement, while 80% went to Robinhood. This inverted the industry standard, generating 400% more revenue than the typical [payment for order flow] split, and reducing price improvement by 75%.
It was alleged that, at times, the costs associated with order flow exceeded what users would have paid if Robinhood charged a flat commission. In January, Santa Barbara, California, resident Edward Luparello filed another of the five complaints, alleging the app lured in inexperienced investors and then profited off policies that garnered those “young adults” less bang for their buck.
The claims in the complaints echo other accusations Robinhood has faced in recent months. In December, the company agreed to a $65 million settlement with the U.S. Securities and Exchange Commission (SEC) over these practices. As is customary, according to the terms of the company’s agreement with the federal regulator, the company didn’t admit or deny guilt. Robinhood is also facing litigation from consumers concerning outages during 2020 that prevented consumers from accessing their accounts and making trades during some of the highest market-gain periods in history.
Leslie Pescia, a lawyer in Beasley Allen’s Consumer Fraud & Commercial Litigation Section, serves on the Executive Committee for the MDL litigation concerning these outages. The case is In re: January 2021 Short Squeeze Trading Litigation (case number 1:21-md-02989) in the U.S. District Court for the Southern District of Florida, Miami Division.
PHARMACY BENEFITS MANAGER (PBM) LITIGATION
PBM Regulation Bill Passes Senate
An important bill (SB 277) is on its way in the Alabama Legislature. When passed, it will serve to impose more state regulations on pharmacy benefit managers (PBMs). The bill was approved in the Alabama Senate last month and sent over to the House of Representatives. At press time, it appeared that the bill would pass and become law. It is good for Alabama in that it will reduce the cost of prescription medicine and will also protect Alabama pharmacies.
For those who may still not know what PBMs are, a PBM is the middleman between drug makers, pharmacies, and healthcare benefit plans. Nationally, PBMs have been accused of having unregulated power and abusing the prescription drug system. Prescription drugs are increasingly more expensive in the United States than anywhere else in the world, and many for good reason are blaming PBMs for these rising drug costs. PBMs have been put under a microscope for their conduct that essentially skims money from the pharmacy transactions, causing economic harm to consumers, health plans, and small businesses like independent pharmacies.
Before the Senate’s vote, Alabama’s independent pharmacists had been at an impasse with PBMs. The pharmacists argued that PBMs drive up costs for pharmacies and consumers, while the opponents argued without justification that they keep drug costs down.
The Senate Bill sponsored by Sen. Tom Butler, R-Madison, a former pharmacist, imposes stricter regulations on PBMs and expands on a 2019 law that places PBMs under the umbrella of the Alabama Department of Insurance. The legislation, among other provisions, prevents PBMs from offering monetary incentives for choosing one pharmacy over another. It also prohibits opportunistic behavior such as PBMs requiring that people use a mail-order pharmacy or a pharmacy affiliated with a certain PBM.
Senators Tom Butler and Billy Beasley have worked extremely hard on the important issue. According to Alabama Daily News, Blue Cross and Blue Shield of Alabama, in a statement said Senate Bill 227 is the result of debate and compromise with several parties. According to the news source, several senators thanked Senators Butler and Beasley for their dedication and hard work on this legislation.
The bill at press time had been reported out of the House Health Committee for consideration. It was on the House calendar on April 28. Hopefully, the bill will have passed and become law by the time you read this account of the needed legislation. Without any doubt, this legislation was needed.
Source: Alabama Daily News
Healthcare Litigation At Beasley Allen
Lawyers in our firm handle a great deal of healthcare related litigation. If you have any questions about the Beasley Allen healthcare litigation practice, 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].
U.S. Supreme Court Rejects Auto Manufacturer’s Challenge To Decades-Old Jurisdictional Principles
We wrote last month on a most important decision handed down by the U.S. Supreme Court. The high court in March issued Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S. Ct. 1017 (2021), in which the Court explicitly rebuked an attempt by auto manufacturer Ford to profoundly curtail decades-old jurisdictional principles. In doing so, the Court also narrowed and clarified the scope of Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty., 137 S. Ct. 1773 (2017), a more recent Supreme Court decision which some analysts have read as substantially tightening requirements of personal jurisdiction in the context of class actions and mass torts.
Every U.S. law student studies International Shoe Co. v. Washington, 326 U.S. 310 (1945), the seminal Supreme Court decision that established the modern principle of personal jurisdiction: namely, that a defendant is subject to jurisdiction within a given state if it has such “contacts” with the forum State that “the maintenance of the suit” is “reasonable, in the context of our federal system of government,” and “does not offend traditional notions of fair play and substantial justice.” Id. at 316-17. International Shoe set the stage for the concepts of general and specific jurisdiction: General jurisdiction provides that a defendant may be sued in any state in which he or she “resides,” while specific jurisdiction arises when a defendant “purposefully avails itself of the privilege of conducting activities within the forum state” such that the defendant would have “fair warning” that it could be haled into court in the forum state. Hanson v. Denckla, 357 U.S. 235, 253 (1938); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980).
The Ford decision focuses on specific personal jurisdiction. The case arose out of two tragic automobile accidents involving Ford vehicles, one of which occurred in Montana, the other in Minnesota. The victims of the accidents brought actions in Montana and Minnesota, respectively. Neither of the Ford vehicles involved in the accidents had been sold by Ford in either Montana or Minnesota – both had been originally sold elsewhere and then transported to Montana and Minnesota either by resale or owner relocation.
Ford argued that, under Bristol-Myers, it should not be subject to personal jurisdiction in either Montana or Minnesota because the accidents did not “arise out of” Ford’s conduct in either state, but the Supreme Court, in an 8-0 decision, resolutely rejected that argument insofar as it ignored the second half of the Bristol-Myers quote, which states that a plaintiff must show that the claims “arise out of or relate to the defendant’s conducts with the forum.” Bristol-Myers, 137 S. Ct. at 1780.
The Court held that while the accidents were not directly caused by Ford’s activities in the forum states, the accidents were certainly related to Ford’s economic and commercial presence in those states. The Court noted that Ford even admitted that it has “purposefully availed” itself of conducting business in Montana and Minnesota insofar as Ford uses “every means imaginable – among them, billboards, TV and radio spots, print ads, and direct mail – [to] urge Montanans and Minnesotans to buy its vehicles,” including the make and model of vehicles involved in the accidents at issue. Ford, 141 S. Ct. at 1028. According to the Supreme Court, Ford’s argument – that this economic activity was not the root cause of the accidents – was irrelevant because no such “causation” requirement exists in the context of specific personal jurisdiction.
In Ford, the Supreme Court sent a clear message to large corporate defendants that sell and market their products throughout the United States – you can, and should, expect to be haled into court in any state in which you market and sell your product, regardless of whether your economic activity in that state served as the direct “cause” of the injury underlying the lawsuit. While this has, of course, been the law of the land for the larger part of the last century under International Shoe, the clarification was necessary to prevent such defendants from arguing, post-Bristol-Myers, that some additional causation showing is required.
We will continue to follow Ford and other key jurisdictional decisions to learn if and how the Court applies Ford to a class action or mass tort litigation.
THE CONSUMER CORNER
Beam Banking App Banned Permanently By FTC
There is a tremendous amount of controversy in the “world of finance” and “consumer lending” by banks. We will discuss one situation that may be of help to you. In a July 2020 statement to the Federal Trade Commission (FTC), the online banking provider Beam said:
Beam’s vision is to make high-interest bank accounts accessible to all Americans, regardless of wealth status, account balance, or whether they would be eligible for cross-selling of other financial products.
To that end, Beam boasted on its website that it provides 4% interest of federally insured savings, compared to a traditional bank’s offering of 0.01%. That appeared to be good news for consumers who needed a place to invest.
Customers, though, began running into problems when they attempted to make withdrawals, and questions were raised by the FTC as to whether customers were actually receiving the advertised interest rates. Despite advertising that customers would have access to money 24/7 and would receive requested withdrawals in 5 days or less, many customers could not access their money for weeks, and in some cases, for even months.
Beam banking founder, Aaron Du, has denied that there has been any issue with customers receiving the promised interest rates and has stated that in some cases, customers were overpaid. However, in February, Du and Beam agreed to a settlement with the FTC that requires Beam to pay back $2.6 Million to certain customers and permanently bans Beam from acting as a bank that receives deposits from customers. Du stated that the settlement was reached when Beam ran out of funds to pursue the case further, and were forced to settle.
Bayer Sued Over Flea And Tick Collars Tied To Pet Deaths
Bayer Healthcare LLC has been sued in a proposed class suit in Florida. The pharmaceutical company is accused in the suit of knowingly making and selling a flea and tick collar for pets that has led to death and injury in animals without warning consumers of the potential dangers.
Florida resident John Czerniak, who says his dog developed seizures and skin irritation after using the Seresto brand flea and tick collar, has sued both Seresto’s former owner Bayer and its new owner Elanco Animal Health Inc. for failing to tell the public about the risks of using the collars. Czerniak said:
Despite ample opportunity to warn consumers of the harm that Seresto collars present to pets, pet owners and their families, defendants have refused to disclose or otherwise inform consumers of these risks, which are known to defendants but unknown to consumers. Even more, despite knowing about the dangers associated with the Seresto collars, defendants continue to manufacture and sell Seresto collars to unsuspecting pet owners in order to profit at the expense of pet owners and their pets.
It’s further alleged that since 2012, Seresto collars have been responsible for more than 75,000 reported incidents, including the deaths of 1,698 pets and nearly 1,000 incidents involving harm to their human companions.
Among these incidents was the case of a 12-year-old boy who had to be hospitalized with seizures and vomiting after sleeping in a bed with a dog wearing a Seresto collar. A 67-year-old woman who also slept with her dog reported having heart arrhythmia and fatigue. Both are set out in the complaint.
An investigative report in March exposed the gravity of the risks associated with the collars, according to the suit. U.S. Rep. Raja Krishnamoorthi, D-Ill., who chairs the House Subcommittee on Economic and Consumer Policy, has written to Elanco Animal Health to demand a voluntary recall of the collars. Still, the company has not yet implemented one, according to the suit.
Czerniak says he bought the Seresto collar because it claimed to be effective, odorless and non-greasy, but his dog Romeo suffered seizures and skin irritation, which stopped after he removed the product.
Bayer sold more than $300 million worth of Seresto collars in 2019 before selling the brand to Elanco in 2020. The Seresto brand was said to be a key component in the $7.6 billion purchase of Bayer’s pet products division.
Czerniak is seeking to represent a class of Florida consumers who bought the collar and suffered economic damages. He specifically says he is not seeking relief for any personal injuries or wrongful death on behalf of the class. “Bayer completed its sale of its animal health division to Elanco in August of 2020, and this sale included Seresto flea and tick products,” Bayer spokesman Dan Childs said. “We no longer manufacture or market this product.”
Czerniak is represented by Rachel Soffin, Jonathan B. Cohen, William A. Ladnier and Alex R. Straus of Greg Coleman Law PC. The case is Czerniak et al. v. Bayer Healthcare LLC et al. (case number 9:21-cv-80689) in the U.S. District Court for the Southern District of Florida.
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 some of the current case activity listings:
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 who may be 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.
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
Demet Basar, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, has some recommendations this month for our readers. Demet has a tremendous track record in the handling of complex class action litigation. I believe the following tips will be helpful to all trial lawyers generally, but especially to those who handle class action litigation. Let’s see what Demet, based on her vast experience, has to say on an important aspect of handling class action cases.
Responding to Complex Dismissal Motions in Multi-Party Class Actions
Over the past decade, large scale litigation has focused more on motion practice rather than actual courtroom activities. This is particularly true in the case of class action and mass tort litigation. For this reason, this month we decided to devote the Trial Tips section of The Report to the first case dispositive motion plaintiffs typically face in complex litigation: the motion to dismiss.
Effective written advocacy is always challenging and even more so when responding to motions to dismiss in multi-party class actions. In some of these cases, plaintiffs from different states band together to assert similar types of claims under their states’ laws on behalf of state classes and, sometimes, on behalf of multi-state or nationwide classes, contending the applicable laws are substantively similar. One or more plaintiffs may also sue multiple defendants alleging each caused their harm. Motions to dismiss in these types of cases are often complex because they involve applying similar or different state laws to the same types of claims, which can yield different results on the same facts. Regardless of the particular circumstances, responding to such motions in a well-organized, streamlined and persuasive manner is not easy, but, with perseverance and creativity, is achievable.
The goal in responding to complex motions, as is the case with any type of legal writing, is to grab the attention of the reader – usually, in the first instance, the judge’s clerk – and keep it, which is best accomplished by presenting arguments simply and as part of a compelling story.
In our view, the story should begin with why the plaintiffs’ case is so strong on the merits that it would be unjust to dismiss it and the story should end the same way. The middle of the story should have logically organized, lean arguments that affirmatively establish why each of plaintiffs’ claims is viable and why each of defendants’ arguments for their dismissal is incorrect or should not be accepted in the context of the case.
The story should be written in plain English, and only one or two cases cited for each legal proposition, with short parentheticals, to keep the flow. Two or three themes that encapsulate plaintiffs’ position on important issues should be woven into the brief to pull it together.
Our recent experience with complex dismissal motions in one of our auto defect cases illustrates some of the challenges that can arise in responding to these motions. In this case, the two defendants, each represented by a premier defense firm, moved to dismiss plaintiffs’ 100-count complaint asserting claims under the laws of fifteen (15) states. Defendants each filed exhaustive 50-page briefs that could not be more different in structure or style. One defendant, the auto manufacturer, generally made broad-brush arguments that ignored or minimized differences in state laws. The other defendant, the maker of the defective part in the automobiles, on the other hand, parsed each type of claim under each state’s law separately, focusing on particular claims rather than on types of claims.
Our first step in planning our opposition was to analyze the organization of defendants’ briefs to determine whether the organization itself served a purpose. It did. For example, the auto manufacturer addressed plaintiffs’ statutory consumer protection claims and common law fraud claims together to make it appear that all of those claims had the same or similar elements and were subject to the heightened pleading requirement of Rule 9(b) when they clearly did not.
The parts maker used a slice and dice approach because attacking each of plaintiffs’ claims in isolation allowed it to blunt the full force of plaintiffs’ allegations, which, when viewed collectively as required, could give rise to a plausible inference that it and the automobile manufacturer both caused plaintiffs’ harm.
Because these and similar tactics affected many of plaintiffs’ claims, addressing them in separate state-specific arguments would be repetitive and take up too much space. Therefore, we exposed what defendants were up to once at the beginning of our brief, which also had the benefit of allowing us to signal to the court early on that defendants’ arguments should be viewed with skepticism.
As is prudent when tackling any complex problem, we next decomposed defendants’ briefs into smaller, simpler segments to identify their deficiencies, strongest arguments, case law that was truly problematic for our case, and principles and case law that we could use to support our arguments. We then conducted extensive legal research, learned the intricacies of the different states’ laws for each type of claim asserted, analyzed the similarities and differences among them, identified common issues of fact and law relating to each claim and its elements, and, armed with this knowledge, began to construct the right framework for our response.
Because most of our claims were asserted against both defendants and it was important to link their conduct, we decided to file one opposition brief responding to defendants’ separate motions, which allowed us to use fewer pages. The challenge was how to present our arguments in a way that would be most useful to the court. Judicial clerks and judges often read briefs horizontally, comparing the parties’ arguments issue by issue, instead of serially reading the moving brief, the opposition and the reply. Thus, barring a case-specific reason, it is important to organize a responding brief in a manner that makes it easy to toggle between it and the moving brief. In our case, because the organization of the two moving briefs was so different, we tried several different approaches until we settled on one that we thought would work.
We determined that the simplest approach – grouping all of the claims brought under a particular state’s laws in one section – made the brief easier to navigate but less persuasive because it broke the flow of the arguments. Ultimately, we decided to organize the brief by type of claim, e.g., violation of consumer protection laws, breach of warranty, and so on. This organization, however, could result in a lot of repetition – and extra pages – because many of the state law claims had elements in common. If ten state law claims of the same type have a scienter requirement, repeating the same facts and applying the case law of different jurisdictions in ten separate sections could be confusing and ineffective.
Thus, we decided if there were arguments that affected a group of plaintiff’s claims, even if they applied to just one or two elements of a claim, we would address them in one argument and refer back to that section when necessary. In our case, both defendants argued the plaintiffs failed to adequately allege defendants’ knowledge of the defect or plaintiffs’ reliance on the alleged misleading statements and omissions, key issues whose resolution affected all of the plaintiffs’ claims requiring knowledge and/or reliance.
We addressed these elements in standalone sections and, in each section, presented the relevant facts in the most persuasive and fulsome way and cited the best cases from any jurisdiction with favorable outcomes on similar fact patterns, without being limited by the case law of particular states. Later, in the separate sections addressing each state claim, we referred back to these element-specific arguments and cited case law from the relevant state, and addressed any other arguments specific to that state claim.
There is no one size fits all strategy for responding to complex motions to dismiss claims arising under multiple states’ laws, but thoughtfully considering different frameworks for presenting arguments and, once one is chosen, housing the arguments effectively within the framework, without repetition and in a readable way, should be the goal.
If you have any questions, contact Demet Basar at 800-898-2034 or by email at [email protected]. She will be glad to be of assistance.
A large number of safety-related recalls were issued during April. Significant recalls are being made available on our website, https://www.beasleyallen.com/recalls/. You will always find the latest 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.
BEASLEY ALLEN EMPLOYEE SPOTLIGHTS
Stephanie Diaz has been a dedicated employee with Beasley Allen since September 2017. She is a Medical Records Staff Assistant in the Mass Torts Section at our Montgomery location. Her duties primarily consist of ordering medical records in the high volume of cases in the Section. Stephanie is currently working on the Talcum Powder litigation, which is a huge undertaking and is doing a very good and important job.
Stephanie has been married to her husband, Juan, for 15 years. Together they have two children, their daughter, Brianna, age 21, majoring in early childhood education, and their son, Reese, age 14. They also have what she refers to as 3 “fur babies.” In her spare time, Stephanie enjoys reading and listening to music. She also loves to attend plays and concerts. However, Covid restrictions have not allowed her to do those things. Instead, she has learned to engage in activities such as sowing and canning vegetables.
When asked what her favorite part of working with Beasley Allen is, Stephanie had this to say:
Mass torts is a challenging department to work in, and that requires always learning new things. I enjoy the people I work with and the fact that teamwork is such a big part of what we do. My favorite thing about Beasley Allen is that they care about the employees and are a family-oriented firm.
Stephanie is a hard-working, dedicated employee who enjoys her work which she is very good at. We are fortunate to have her at Beasley Allen.
Andrea Linnear has been with Beasley Allen since January 2020. She is a Paralegal in the Firm’s Toxic Torts Section and is located in our Georgia office. Her job duties include assisting the lawyers with cases, responding to discovery, and maintaining a database of documents in preparation for depositions and trials. Andrea recently assisted the section with the development and presentation of a training session on preparing for and attending a trial. That was extremely helpful and instructive.
Andrea has three sons, DeAundre (33), Jalen (26) and Kendall (9). Between her two other boys, she has three grandchildren, Levi (10), Paisley (5) and a newborn, J’onni. In her spare time, Andrea says she loves to travel, try new restaurants, and spend time with family and friends. She also plays co-ed softball and is the head coach for her youngest son’s baseball team.
When asked what her favorite part of working at Beasley Allen, Andrea says:
Beasley Allen and the lawyers and staff in the Toxic Torts Section specifically feels like a family. I appreciate how much time and effort goes into ensuring we work well and grow as a team. We are equipped not only with the tools necessary to successfully do our jobs but we also receive daily inspiration to encourage and comfort us as individuals.
Andrea is a hard-working, dedicated employee whose work as a paralegal is extremely important to the firm and our clients. We are fortunate to have Andrea at Beasley Allen.
Erin Little, an Accounting Auditor at Beasley Allen, has been a valued employee with the firm for the past year. Her tasks include annual and monthly budgeting, disbursements for the Firm’s Mass Torts Section and working on other special projects.
Erin has been married to her husband, Jason, for four years. Together they have a rescue dog named Bailey. Erin says she and Jason love to travel. While they are currently unable to do so during the COVID Crisis, they are planning future trips. While unable to travel, Erin and her husband have been learning to cook new meals. Erin says they also love spending time with friends and family.
When asked what her favorite part of working at Beasley Allen is, Erin replied:
The best thing about Beasley Allen is the people that work here. I see every day how hard everyone at the firm works to help our clients and each other.
Erin is a dedicated, hard-working employee, and her work is very important to the firm. We are fortunate to have her at Beasley Allen.
Matt Pettit is a lawyer in Beasley Allen’s Toxic Torts Section, where he works on Roundup litigation. Before joining the firm, Matt worked for another plaintiff’s firm, handling complex litigation for multidistrict litigation (MDL) in the firm’s Mass Torts and Toxic Torts area. Matt has worked in products liability, personal injury, and environmental torts.
“Originally,” Matt explained, “I went to college to be an engineer. I was in Chemical Engineering for two years until I decided that was not the area of work that I wanted to do.”
Matt recalls that as a child, he was very inquisitive and his favorite question was
always, “why.” Now, as an adult, he enjoys the process of thinking critically about tasks and finding the best way to resolve an issue while still learning the underlying subject matter. That is certainly helpful for lawyers and especially trial lawyers.
“Being an attorney allows me to not only be a constant student and learn more about complex products or procedures, but it also allows me to use this information in a way to help further the client’s goals,” Matt said. “As an attorney, I get to satisfy my own questions of why and then take that knowledge and apply it to a particular situation.”
Matt earned his Juris Doctorate from Samford University Cumberland School of Law. He was the Writing Editor of the school’s law review, was on the school’s National Negotiation Team, and won the Henry Strickland Negotiation Competition. Matt was a scholar of merit in Torts II and was on the dean’s list each semester of law school. He was also a Caruthers Fellow. Additionally, Matt clerked for the Lee County Alabama District Attorney’s office, two plaintiff’s law firms, and the Criminal Appeals division for the Alabama Attorney General’s Office. Matt received a B.A. in political science from Auburn University.
Currently, Matt is a member of the Tennessee State Bar and the Nashville Bar Association, where he is part of the Federal Court Committee. Matt says he is proud to be the first lawyer in his family. Away from the office, he enjoys spending time with his French bulldog, riding his motorcycle, working on cars, camping, and hiking.
Matt says that he became familiar with Beasley Allen’s good reputation through word of mouth from other lawyers. He adds that he especially appreciates that the firm will start a case, not to settle but to do what is best for the client, including taking a case to trial. We are fortunate to have Matt at Beasley Allen.
Frank Woodson, the Managing Attorney for our firm’s office in Mobile, Alabama, has practiced in the area of pharmaceutical product liability with Beasley Allen since 2001. Before joining our firm in Montgomery, Frank practiced in Mobile for 17 years.
Frank led Beasley Allen efforts in the Zantac litigation. In May 2020, U.S. District Judge Robin L. Rosenberg, in the Southern District of Florida, appointed Frank to serve on the Plaintiffs’ Steering Committee for the Zantac national multidistrict litigation (MDL). Frank serves on the Zantac MDL’s Bellwether Trial and Science/Expert committees and co-chair of the Deposition/Discovery committee with Mikal Watts. He has served in similar leadership roles for past MDLs, including Granuflo MDL, Lipitor and Vioxx. Frank handled claims on behalf of individuals who died or suffered injuries as a result of these medications in those litigations.
Frank says he became a lawyer at his grandfather’s prompting. He recalled his grandfather G. E. “Red” Woodson saying, “We need a lawyer in the family.” So, Frank decided to grant that wish. He says his favorite part of practicing law is reaching a satisfactory result for a client.
Frank has been a member of the Mobile Bar Association since 1984, serving as President of the Young Lawyers Section and on the Executive Committee. He is also a member of the Baldwin County Bar Association. Frank served as a board member of the Alabama Association for Justice since 2005 and as an officer for seven years culminating in his serving as President for the 2017 – 2018 term. He is also a member of the American Association for Justice.
In 2017, Frank was selected to join the International Society of Barristers, an invitation-only society dedicated to the ideals of trial by jury, the adversary system and a free and independent judiciary. He has been regularly selected for inclusion in the Best Lawyers in America list since 2016 and the Midsouth Super Lawyers list since 2018.
Frank provided his perspective on the firm, saying that its size is unique as a plaintiff’s firm. He also says that he appreciates our firm’s urging its lawyers to be active in professional legal organizations and also for being committed to pro bono work. Frank is also pleased that the firm emphasizes the importance of giving back to their local community.
Frank is married to the former Marti Glaze of Tuscaloosa, Alabama, and they have four children. Frank and his family have been active members of Frazer United Methodist Church, where Frank served on the Board of Stewards. He is a member of the Harbor Light Sunday school class. Frank also served in the past as a member of the Board of Directors for St. James School in Montgomery.
We are blessed to have Frank in the firm. He has done outstanding work and is totally dedicated to the mission of Beasley Allen.
Chris Glover Successfully Implements, Hosts Live Monthly Webinars
As one of the country’s leading firms involved in complex civil litigation on behalf of claimants, we at Beasley Allen understand the importance of sharing resources and teaming with peers from across the profession. We appreciate the relationships the firm has formed over the years with referring attorneys and co-counsel. Clients gain the most from these mutually beneficial relationships. Over the years, the firm has remained committed to investing in resources to help fellow lawyers. Our latest resource began as a vision. Our Atlanta Managing Attorney Chris Glover believed real-time monthly webinars could be another tool to facilitate these types of professional relationships. Chris credits his inspiration to a fellow attorney who produces webinars.
Chris explained that the firm is not the first to take on this type of project, but he believes fellow lawyers will benefit from learning about the cases the firm handles and the lessons and takeaways from those cases. It also provides another source for human interaction, and networking opportunities as the profession and its practitioners have adapted to practicing law in the time of a pandemic.
The firm’s Atlanta office has hosted two live or webinars in real-time with plans to continue each month throughout the year. A sizable crowd joined Chris for the first three webinars, and each offered a free one-hour Continuing Legal Education credit for those practicing law in Georgia. The webinars feature Chris talking with law partners about the firm’s recent cases that had a significant impact and topics to help other lawyers grow their practice. Chris and his guest host also take questions from participants during a question-and-answer time. The Atlanta office’s success has prompted discussions about hosting a similar event or set of events in Alabama.
At the heart of this project is how we can help each other and, ultimately, how we can better serve our clients while expanding access to the firm’s services. Certain aspects of the profession like networking can’t be the way they were two years ago, but we must think about them differently and adapt accordingly. Chris has done a great job bringing his vision to life and encouraging the firm to continue adapting the practice of law so that we can continue our mission of “helping those who need it most.”
Joseph VanZandt Helping Lead National JUUL Litigation Efforts For Schools
JUUL e-cigarette products unleashed a vaping epidemic in our country that has plagued our young people and communities. It has uniquely impacted schools. Students openly use e-cigarette products at school, and those who have become addicted to nicotine because of vaping act out often, disrupting the learning environment. Despite the costs associated with addressing these effects, school administrators and leaders feel a sense of duty to help stem the crisis.
Nationwide, school districts have turned to the legal system to hold JUUL accountable for the harm inflicted upon our children and recoup financial losses incurred to address vaping and nicotine addiction. Beasley Allen’s Joseph VanZandt is working with the National JUUL Litigation consortium, spearheading the firm’s efforts to make resources available to schools as they seek to hold JUUL accountable for its role in the vaping epidemic. The national coalition represents more than 150 school districts of all sizes, collectively serving over 5 million students in Alabama, Arizona, Arkansas, California, Florida, Georgia, Kansas, Kentucky, Missouri, New York, Pennsylvania, South Carolina, Tennessee, and West Virginia.
Joseph has been a passionate and vocal advocate for schools as they worked to address the epidemic’s impact. Two years ago, he and other Beasley Allen lawyers held town hall meetings with schools, students, parents and others, warning about the dangers and popularity of JUUL e-cigarette products. Joseph identified experts and convened a panel that shared information with the various affected constituencies. Since then, he has worked with school districts and their local counsel across the country, facilitating opportunities for the districts to join the national JUUL multidistrict litigation.
Judge Terri Bozeman Lovell Named Alabama State Bar Executive Director
The Alabama State Bar (ASB) has selected Judge Terri Bozeman Lovell as its new Executive Director. Judge Lovell will begin her tenure in June and will become the first female executive director of the organization since its founding in 1879. ASB President Bob Methvin, in announcing Judge Lovell’s selection, said:
We are thrilled to have Judge Lovell bring her vision, experience and never-ending enthusiasm for the legal profession to the Alabama State Bar. This is an exciting hire for all Alabama lawyers. After an exhaustive national search that produced 80 candidates, Judge Lovell stood out, not only for her abilities, but because of her understanding of the needs of Alabama lawyers and the Alabama legal community.
Terri Lovell has been the current Presiding Circuit Judge in the Second Judicial Circuit since 2011. She had previously served as the District Judge of Lowndes County from 1998 to 2011. As the only circuit judge in a three-county circuit, Judge Lovell heard civil and criminal jury cases, non-jury trials and domestic relations cases.
Judge Lovell was unanimously selected by a 26-member Executive Director Search Task Force and her name was submitted to the Board of Bar Commissioners for approval. The Board of Bar Commissioners, the governing and policy-making body of the Alabama State Bar, unanimously approved Judge Lovell as the Association’s next Executive Director.
In addition to her service on the bench, Judge Lovell is the Secretary-Treasurer of the Alabama Circuit Judges’ Association, the co-chair of the ASB’s Bench & Bar Task Force, a member of the Alabama Sentencing Commission, and the Circuit Judges’ Board of Directors. She has previously served as President of both the District Judges’ Association and the Juvenile Judges’ Association. Judge Lovell is married to Jeff Lovell and they have two children, Luke and Abby.
I can say without reservation that Terri Lovell has been an outstanding trial judge. She was firm, but fair to all concerned in her rulings and in the conduct of trials. I was impressed in our cases that Judge Lovell was always well prepared for a trial. She fully understood the cases and kept lawyers under control and on track during trials. She was well respected by all lawyers who tried cases in her courtroom. The State Bar is most fortunate to have Terri Lovell as its Executive Director. We wish her well!
FAVORITE BIBLE VERSES
Willa Carpenter, who recently retired at Beasley Allen, but still serves as a contract source for our lawyers and staff members, furnished her favorite scriptures this month. The first verse is Hebrews 12:2.
Looking to Jesus, the author and finisher of our faith, who for the joy that was set before Him endured the cross, despising the shame, and is set down at the right hand of the throne of God. Hebrews 12:2
Willa says this is one of the most comforting scriptures to her. She says, “to know that having accepted Jesus as my Lord and Savior by faith, as I look to Him and trust in Him, Jesus sustains my faith so that it cannot be taken away. It is a gift from God! One writer said, No story is good if the writer starts it but does not finish. Jesus is the BEGINNING and the FINISHER (PERFECTOR) of our faith. Hebrews 10:23.”
Willa says further that she is confident of this very thing, and that is that “God, who has begun a good work in us, will complete it until the day of Jesus Christ.”
Let us hold fast our confession of faith without wavering, for He who promised is faithful. Philippians 1:6
Chris Glover, who heads up our Atlanta office, furnished verses from Romans as his favorite scriptures. Chris says: “Romans 1:16-17 is the gospel in a nutshell.” Chris says:
For I am not ashamed of the gospel, for it is the power of God for salvation to everyone who believes, to the Jew first and also to the Greek. For in it the righteousness of God is revealed from faith for faith, as it is written, “The righteous shall live by faith.” Romans 1:16-17
Chris says further:
Sin is a terrifying power that grips human beings at the very core of their being. Left unchecked, it pushes people to self-destruction. What Paul was saying in Romans 1:16-17 is that there is good news that is truly good. That is that sin can be forgiven, selfishness can be overcome, guilt can be removed, anxiety can be alleviated, and people can and do have hope in eternal glory. Jesus did this for us, completely outside anything we did for ourselves. Salvation is not an act by me in any way. The gospel isn’t just about forgiveness. Forgiveness is awesome. Thank God that Jesus paid the price that we can be forgiven, but that isn’t the full story of the gospel, and thankfully so. That’s why the term “the righteous shall live by faith” can change your life. Christianity is about your standing before God. You are forgiven, but you are also righteous. You stand righteous not by what you’ve done, but what our Savior Jesus did for us.
Brittney Hill, a legal secretary in our Mass Torts Section, says her favorite scripture is Isaiah 43:2
When you pass through the waters, I will be with you; and when you pass through the rivers, they will not sweep over you. When you walk through the fire, you will not be burned; the flames will not set you ablaze. Isaiah 43:2
POLITICAL NEWS & VIEWS
Backlash Over 2020 Election Turnout Intensifying Voting Restrictions
We mentioned in the Capitol Comments Section the right to vote being under intense attack in America. Now let’s take that situation a step further. According to the Pew Research Center, the 2020 election had a historic turnout with 158.4 million ballots cast, representing two-thirds of eligible voters. The turnout was 7 percentage points higher than the 2016 election, and every state in the country showed an increase in voter turnout. Researchers explain that while bitterly divisive politics partially fueled the record turnout, the pandemic required states to relax voting requirements.
Seven of the 10 states that had the highest number of voters conducted their November’s vote entirely or mainly through the mail, and six of the states “recently adopted all-mail voting, either permanently (Utah and Hawaii) or for the 2020 elections only (California, New Jersey, Vermont and most of Montana).”
This data demonstrates how less burdensome voting requirements encourage more civic engagement. Record election turnout should be celebrated in a democracy; however, last year’s turnout has sparked a backlash primarily among Republican state lawmakers seeking to return to pre-Voting Rights Act restrictions.
Even before the first vote was cast last November, a number of Republican state lawmakers and other Republican officials were parroting the unfounded claims of voter fraud unleashed by the Trump Administration. The New York Times explained that “voter fraud is exceedingly rare” and that “the most high-profile recent examples of fraud have tended to involve Republican voters” despite the previous administration’s unfounded claims. Still, such baseless claims have paved the way for so-called “election integrity” laws. These laws are a façade, concealing the efforts of those in office to maximize the power of voters who make up their base. Creating overly burdensome voting restrictions that make it difficult for specific populations to vote or voter suppression helps ensure that those in office (and power) remain.
Historically, voter suppression laws have more significantly affected disenfranchised groups. Race is often an underlying element of voter suppression, and so people of color, especially African American voters, have been targets of these types of laws in our nation’s past. Renewed efforts to implement voter suppression laws happened in response to President Barack Obama’s election victories. Such laws tightened voting requirements, and some argue these severe restrictions harken back to Jim Crow-era laws that segregated and disenfranchised African American voters. These laws follow a pattern. They implement onerous identification requirements, reduce the number of hours for voting along with access to early voting.
In 2013, coming off the heels of President Obama’s re-election, the U.S. Supreme Court handed a significant victory to those supporting voter suppression in the country. In Shelby County, Alabama v. Holder, the Court ruled in favor of Shelby County, gutting the Voting Rights Act of 1965. Many worked hard, even shedding blood, to pass this law. It was a set of voting protections, including section 5, which required states with a history of racial discrimination, particularly involving race-based voter suppression laws, to obtain approval or “preclearance” before changing voter rules. Section 4 of the Act established the formula for determining which jurisdictions must comply with section 5. In a 5-4 decision, the Court ruled that section 4 was unconstitutional and could no longer be applied. Although the Court did not rule on section 5, it was no longer operable without section 4.
In her dissent, Justice Ruth Bader Ginsburg put things in what many, including this writer, believe was the proper perspective. She wrote:
[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.
The resurgence of voter suppression laws quickly escalated, spreading like wildfire across the country, as Norman Eisen and Joanna Lydgate described for CNN. Mr. Eisen is a former ambassador to the Czech Republic and served as special counsel to President Barack Obama on ethics, and is a Voter Protection Program board chair. Ms. Lydgate is the program’s national director. The group is leading the fight to defend and expand voting rights in the U.S.
The Brennan Center for Justice is tracking these efforts to “curb the vote” and shows that as of March 24, state lawmakers “have introduced 361 bills with restrictive provisions in 47 states.” It was a 43% increase in just a month. The group’s research shows that five restrictive bills have become law, 55 restrictive bills in 24 states are moving through legislatures, 29 have passed at least one chamber, and 26 have received some committee action. The researchers say that the “[m]ost restrictive bills take aim at absentee voting, while nearly a quarter seek stricter voter ID requirements.” Other bills “seek to undermine the power of local officials.”
Georgia Republican Governor Brian Kemp recently signed into law a restrictive voting law following the same pattern described above by reducing the hours allowed for absentee voting and increasing the identification requirements. The law has gained notoriety because of the provision limiting food and water distribution to those waiting in line to vote. It also reduces the number of absentee-ballot drop boxes from 94 last year to 25, moves the boxes to inside locations only and limits the hours they are accessible. Further, the law allows state officials to take over local elections.
At least three lawsuits are challenging the Georgia law, Georgia Public Radio reports. Litigation is one of three “medicines” Mr. Eisen and Ms. Lydgate explain as being available “for this sickness in our body politic.” The “second antidote” is legislation. The “For the People Act” (H.R./S. 1), moving slowly through Congress, is a historic proposal that would establish nationwide rules for federal elections. As Mr. Eisen and Ms. Lydgate explain, this needed legislation would prevent the harshest provisions of voter suppression laws and “restore voters to their rightful place at the center of American democracy.” They say the third needed medicine is reforming existing but outdated laws and the passing of new laws that will expand access to the polls.
For now, we all have a responsibility to safeguard our democratic institutions, including our right to vote. It is important to exercise this right at every opportunity, even in the face of challenging requirements, so that we can thwart voter suppression efforts.
Sources: Pew Research Center, New York Times, CNN, Voter Protection Project, Brennan Center for Justice, and Georgia Public Radio
55 Top U.S. Corporations Paid No 2020 Taxes
President Joe Biden’s proposed infrastructure plan has generated a lot of pushback from the conservative right, mainly in the form of objections over a corporate tax hike that would help pay for the sweeping $2 trillion investment plan. However, discussion over the plan has also helped expose how dozens of the nation’s largest companies paid nothing at all in federal income tax last year despite posting soaring profits.
A new report by the Institute on Taxation and Economic Policy (ITEP) published April 2 shows how uberwealthy corporations use rebates and loopholes to avoid paying taxes while getting millions of dollars back from the government.
According to the report, at least 55 companies from a broad spectrum of industries paid zero dollars in federal income taxes last year. They also took advantage of existing and newly expanded corporate tax breaks introduced under Donald Trump’s 2017 Tax Cuts and Jobs Act in addition to various cost-cutting provisions of the economic rescue package passed in response to COVID shutdowns last spring.
The Trump Administration’s so-called tax reform unlocked several tax breaks and incentives that generously allowed corporations to write off certain expenses while receiving massive credits. All of this, of course, was on top of a massive cut that slashed the corporate tax rate nearly in half. All of this effectively gave 55 of America’s largest companies a negative tax rate, with the government paying them millions of dollars.
Some of the notable examples, according to the ITEP report, are:
- Food conglomerate Archer Daniels Midland enjoyed $438 million of US pretax income last year and received a federal tax rebate of $164 million.
- The delivery giant FedEx zeroed out its federal income tax on $1.2 billion of US pretax income in 2020 and received a rebate of $230 million.
- The shoe manufacturer Nike didn’t pay a dime of federal income tax on almost $2.9 billion of US pretax income last year; instead, it enjoyed a $109 million tax rebate.
- The cable TV provider Dish Network paid no federal income taxes on $2.5 billion of US income in 2020.
- The software company Salesforce avoided all federal income taxes on $2.6 billion of US income.
With dozens of America’s biggest and most profitable corporations contributing nothing in federal taxes, the federal government is cash-strapped. It struggles to fund essential systems that all Americans rely on, such as education, health care, and a rapidly deteriorating infrastructure, without sinking even deeper in the hole due to four years of unsound economic policies and pandemic response.
It will be most interesting to see who has the most influence over Congress as the House and Senate consider the infrastructure legislation, the huge corporations that pay no U.S. income taxes, or the American people who do.
Sources: White House, Institute on Taxation and Economic Policy, WCNC (Charlotte, NC NBC affiliate), Center for American Progress, and Forbes
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.
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.
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.
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
The time has come for the American people to take a stand on an evil that exists in our country and to do all that is required to put an end to that evil – racism. For years, racism has been a growing cancer in our country, and the time to end it once and for all is well past due.
Today, we have groups openly promoting white supremacy and racism. At one time those groups had to operate undercover and in the dark. But now they are in full view for all to see and what we see is conduct full of hate, racism and injustice.
For a country that claims to be “one nation under God with liberty and justice for all,” there can be no justification for good people from all walks of life to sit back on the sidelines and allow racism to be a part of everyday life in America. There is one thing for certain, and that is, racism can no longer be tolerated in the United States.
My prayer is for unity in our country and for the racially motivated divisions that are hurtful to all Americans to come to an end. The place to start is for good people to take a stand and denounce all of the racist and hate inspired conduct that has done great harm to America!