Honoring Fred D. Gray Who Continues As A Stalwart For Justice, Equality
A street in Montgomery, Alabama, once named after the president of the Confederacy, now bears the name of Civil Rights Movement icon Fred D. Gray. The Montgomery City Council has renamed Jefferson Davis Avenue that my longtime friend Fred Gray grew up on, to Fred Gray Avenue.
Montgomery Mayor Steven Reed launched the campaign to change the street’s name. Mayor Reed told the Alabama Political Reporter:
It is important for us to recognize the sacrifice and contributions of attorney Gray. He returned [to Montgomery] with the goal of destroying everything segregated, and he did all he could. I think this is very important for the young people who not only grow up in that part of the city, but in all parts of the city, to see the way he changed this country and overcame obstacles, but did so with class and dignity. It’s very, very important.
Fred is still active in his law practice in Tuskegee. Of his many accomplishments, this tremendously talented lawyer is best known for becoming chief legal counsel to Dr. Martin Luther King, Jr. and the protest movement. He also defended Rosa Parks and Claudette Colvin during the Montgomery Bus Boycott. Fred represented Dr. King’s Montgomery Improvement Association, the local branch and state conference of the National Association for the Advancement of Colored People, and the Montgomery Progressive Democratic Association, as detailed by Stanford University The Martin Luther King, Jr. Research and Education Institute.
Because of Fred’s work on the Montgomery Bus Boycott in which he filed the lawsuit Browder v. Gayle, the U.S. Supreme Court abolished segregation on public buses in 1956. Fred was pivotal in many other civil rights cases, including Gomillion v. Lightfoot, a legal challenge to the Alabama legislature’s redistricting process that attempted to exclude black neighborhoods and deny African Americans the right to vote in municipal elections. His cases also resulted in affirming the one person one vote principle, protected Selma to Montgomery marchers, and integrated public education institutions and parks in Alabama. These are only a few of the results of Fred’s precedent-setting cases.
Mayor Reed explained to WSFA that the street name change also “demonstrate[es] the City of Montgomery’s unequivocal commitment to continuing the fight for full equality, justice and fairness for all of our residents.”
In a news interview with Alabama News Center, Fred echoed the need to continue the fight for equality, saying:
I think that we’ve made a tremendous amount of progress in almost every aspect of American life. I’ve been able, with a lot of help along the way, to be instrumental to do some of that. However, the struggle for equal justice continues.
Fred was one of the first two African Americans elected to the Alabama State Legislature since Reconstruction. He became an ordained Christian minister in high school, then obtained a B.S. from Alabama State College for Negroes and an LLB from Case Western Reserve University in Cleveland, Ohio. Fred says he never forgot what his mother told him when he first became a lawyer. He says she told him, “it was fine to be a lawyer, but never stop preaching.” Fred continues preaching in addition to practicing law today. He credits his mother’s Christian values as a strong influence on his life, saying:
The Lord has played a major role in all of it. I wouldn’t handle a case that I didn’t think the Lord would be pleased with what I was doing. Because I had, first, to be sure that what I’m doing is not contrary to God’s law and, secondly, it’s not contrary to my own basic religious background. So, it played a major role in all of it.
Fred Gray is a great American whose life has affected thousands throughout the country in a powerful and positive manner. This man will leave a legacy that will be difficult to match. He will be remembered as a true champion for people!
Sources: Alabama Political Reporter, WSFA, Stanford University The Martin Luther King, Jr. Research and Education Institute, Alabama News Center, AL.Com, Montgomery Advertiser, National Archives, Alabama State Bar, Britannica and WBHM
BIG TRUCK ACCIDENT LITIGATION
Tractor-Trailer Driver’s Duty To Manage Space
Lawyers who work in trucking litigation have probably investigated and filed a lawsuit where a tractor-trailer driver failed to manage its space, resulting in a collision. Beasley Allen lawyers have dealt with this safety hazard in a number of lawsuits.
Most of the time, except for your plaintiff having been the victim of a rear-end collision, the trucking company, or at least the driver, will try to point the finger at the plaintiff. They might say that your plaintiff encroached into the truck driver’s lane, that your plaintiff wasn’t paying attention, or that your plaintiff was not initially in an adjacent lane but sped up improperly and, as a result, placed themselves in an area that caused the collision.
While it is true that you must evaluate potential fault on your client, don’t forget the mechanics of the tractor-trailer. Tractor-trailers take longer to accelerate and stop; the tracking of the trailer follows a path narrower than that of the tractor, and the driver of a tractor-trailer operates the vehicle with four large blind spots.
It is evident that a tractor-trailer operates differently (and more dangerously) than a personal motor vehicle. In fact, that is why tractor-trailer drivers are required to have a commercial driver’s license. It’s not just the size of the vehicle; it’s also how the vehicle operates on the roadway. You must establish that tractor-trailers maneuver differently when litigating a case in which failing to manage space is part of your client’s claim.
It is a misconception that a trucking company has a higher standard of care than other drivers on the roadway. But tractor-trailer drivers do have a duty to act reasonably under their circumstances. Therefore, their duty is different because of their circumstances. Use that to your advantage and expose it. You can do so by applying the pertinent sections of the state’s Commercial Driver’s License (CDL) Manual where the truck driver obtained their license. Drivers use the state CDL manuals to learn how to operate these vehicles.
Therefore, the truck driver is made aware of hazards and educated on how to avoid them. Common hazards are present that necessitate the importance of a driver properly managing space on the road.
Contact Ben Keen, a lawyer in our Atlanta office, if you have questions about litigating tractor-trailer cases where the defendant driver failed to manage their space. He can be reached at 800-898-2034 or by email at [email protected]. He will be glad to talk to you.
Mobile Office Investigates Bucket Truck Injury
Wyatt Montgomery, a lawyer in the firm’s Mobile, Alabama, office, is investigating a case on behalf of a bridge inspector with the Alabama Department of Transportation. On the date of his injury, our client was in an aerial lifted bridge inspection unit (bucket truck) inspecting the underside of a bridge to ensure the bridge was free of maintenance and repair issues and could be traveled across safely by the public. While underneath the bridge, a locking bolt responsible for connecting the bucket and boom to the truck was allowed to back out of its connection point, causing the boom and bucket to fall, resulting in severe and permanent injuries to our client.
Wyatt is pursuing multiple design and manufacturing defect theories against the manufacturer of the bridge inspection unit. An alternative design would have prevented the boom from failing and causing our client’s catastrophic injuries.
Bucket trucks are a type of aerial lift; powered mobile machines used to elevate workers in construction and other industries where work must be performed at significant distances from the ground. These industrial machines have begun replacing ladders and scaffolding. Still, they are accompanied by safety risks. The U.S. Department of Labor Bureau of Labor Statistics (BLS) reports that aerial lifts injured 1,380 workers and killed 87 workers between 2011 and 2014. In 2017, BLS reports that 24 workers were killed that year alone by aerial lifts.
Wyatt, who was born and raised in Chatom, Alabama, spent the first eight years of his legal career in Birmingham, where he dedicated his practice to representing injured plaintiffs in personal injury litigation. Wyatt primarily handles on-the-job products liability litigation, as well as defective consumer products and motor vehicle defect claims. If you would like to know more about this current case, Wyatt can be reached at 800-898-2034 or by email at [email protected].
Sources: Bureau of Labor Statistics
Jury Awards $16 Million To Family Of Man Killed In 18-Wheeler Crash
A jury has awarded more than $16 million to the family of an 89-year-old man killed last year in a crash in Louisiana involving an 18-wheeler. Charles R. Glaser Sr. died two weeks after the May 2020 collision on U.S. 190 in Pointe Coupee Parish. The jury found the 18-wheeler driver and his employer, Texas-based Rail 1 LLC, 80% at fault in causing the crash. The driver of the 18-wheeler made a U-turn into Glaser’s path and the vehicles collided.
The truck that turned into Glaser’s path was part of a convoy of 18-wheelers that missed their turn while attempting to deliver railroad equipment, and were trying to make a U-turn. The first truck successfully made the U-turn, but the second truck did not see Glaser’s vehicle behind a van and turned into the path of the Glaser vehicle. Jurors found Glaser to be 20% at fault for driving 67 mph in a 55-mph zone.
The total jury award was $20.5 million — $10 million in survival damages (damages suffered by Glaser) and a combined $10.5 million in wrongful death damages to his four sons and three daughters. Glaser’s being found 20% fault reduced the award to $16.4 million.
The verdict is expected to be appealed. Don Cazayoux and Lane Ewing, the Baton Rouge, LA, lawyers representing the Glaser family, did a very good job in this case.
The Beasley Allen Truck Accident Litigation Team
Beasley Allen has been successfully handling major big truck litigation for years. The cases are handled by lawyers in the firm’s Personal Injury & Products Liability Section, headed by Cole Portis. Many truck cases involve complicated products liability issues that are quite often overlooked and missed by lawyers who don’t regularly handle product liability cases. Most of the cases involve speed, driver inattention, driver fatigue and other driver issues. But there will be accidents where a product liability issue will also be involved in causing the accident.
Greg Allen, the Lead Products Liability Lawyer for the firm, has handled a number of the major truck cases involving a defective product issue. We have a team of experienced lawyers making up the Trucking Litigation Team. In addition to Cole and Greg, lawyers on the team are Chris Glover, Evan Allen, Mike Crow, Parker Miller, LaBarron Boone, Ben Baker, Warner Hornsby and Wyatt Montgomery.
If you have any questions or want to discuss a case, contact Sloan Downes, Section Director, at 800-898-2034 or by email at [email protected]. She will have the appropriate lawyer contact you.
THE TALC LITIGATION
J&J Uses A Bankruptcy Ploy To Avoid Paying For Its Bad Conduct
In a shameful display of corporate arrogance and questionable legal tactics, Johnson & Johnson (J&J) created a shell company in Texas and filed that new company in bankruptcy. The Texas 2-step debtor, LTL Management LLC (LTL), filed for Chapter 11 protection. All of J&J’s legacy liability for cancers caused by its talc products were assigned to the newly created entity.
LTL was created through this divisive merger maneuver dubbed a “Texas two-step” and was subsequently rechartered as a North Carolina limited liability corporation. The corporate transactions saddled the newly created debtor with the billions in talc liabilities previously held by Johnson & Johnson Consumer Inc. (“Old JJCI”) and created this “New JJCI” to retain the talc assets. The debtor’s connections to North Carolina are limited, manufactured, and recent in origin.
U.S. Bankruptcy Judge J. Craig Whitley may move the Chapter 11 case of the J&J spinoff to New Jersey or Delaware. In the meantime, J&J is trying to halt talc suits against J&J even though J&J is not in bankruptcy. Judge Whitley is being asked to consider LTL’s “untested stratagem” of seeking to apply the bankruptcy stay to halt talc liability claims against its parent J&J and affiliates.
Tens of thousands of injury claims have been filed against J&J in recent years, including cases in federal multidistrict litigation begun in 2016. J&J provided LTL with only $2 billion to set up a so-called “settlement pool” to resolve talc claims that in total are worth around $38 Billion. In a case with a good number of plaintiffs that went all the way to the U.S. Supreme Court, J&J had to pay the plaintiffs $2.1 Billion.
J&J stripped $14 billion in capitalization from LTL and is trying to avoid paying victims for its very bad wrongdoing. “They are using the bankruptcy process as a weapon to avoid their corporate responsibilities,” said Melanie Cyganowski, counsel for the plaintiff’s steering committee in the MDL. LTL has requested an order finding the bankruptcy code’s automatic stay on litigation against a party in bankruptcy extends to J&J, its subsidiaries, insurers and the retailers of its products. Judge Whitley denied the request for a TRO and that was good news for J&J’s victims.
The talc plaintiffs steering committee is represented by Cole Hayes of Hayes Law, and Melanie L. Cyganowski and Adam C. Silverstein of Otterbourg PC.
The case is In re: LTL Management LLC (case number 21-30589) in the U.S. Bankruptcy Court for the Western District of North Carolina.
Beasley Allen Talc Litigation Team
Beasley Allen lawyers Ted Meadows and Leigh O’Dell head up the Beasley Allen Talc Litigation Team. The team handles claims of ovarian cancer linked to talcum powder use for feminine hygiene. Currently, several members of the team are focused on the bankruptcy move by J&J.
Charlie Stern and Will Sutton, lawyers in our Toxic Torts Section, are on the team, but they exclusively handle mesothelioma claims. Charlie and Will are looking at cases of industrial, occupational, and secondary asbestos exposure resulting in lung cancer or mesothelioma and claims of asbestos-related talc products linked to mesothelioma.
The following Beasley Allen lawyers are members of the Talc Litigation Team: Leigh O’Dell ([email protected]), Ted Meadows ([email protected]), Kelli Alfreds ([email protected]), Ryan Beattie ([email protected]), Beau Darley ([email protected]), David Dearing [email protected]), Liz Eiland ([email protected]), Jennifer Emmel ([email protected]), Jenna Fulk ([email protected]), Lauren James ([email protected]), James Lampkin ([email protected]), Caty O’Quinn ([email protected]), Cristina Rodriguez ([email protected]), Brittany Scott ([email protected]), Charlie Stern ([email protected]), Will Sutton [email protected]), Matt Teague ([email protected]) and Margaret Thompson ([email protected]).
First Opioid Trial Involving Pharmacy Giants
The first opioid trial targeting the pharmacy sector began in early October. In the first of six bellwethers, CVS, Walgreens and Walmart pharmacies face claims by Ohio’s Lake and Trumbull counties that these industry titans are liable for creating a public nuisance in the form of rampant opioid abuse and overdoses, crime, orphaned children and viral infections tied to intravenous injection of opioids.
U.S. District Judge Dan Aaron Polster, who has refereed the MDL since its inception in late 2017, is overseeing the trial. A 12-member jury will render a verdict on the public nuisance claim. If the jury finds any pharmacies liable, Judge Polster will determine damages in separate proceedings.
The country’s four largest pharmacy retailers – divisions of CVS Health, Walgreen Co., Walmart Inc. and Rite Aid Corp. – had agreed to eleventh-hour settlements in June to avoid an opioid trial in New York state court. Rite Aid recently reached another settlement to avoid the trial involving Lake and Trumbull counties. It was announced on Oct. 27 that pharmacy chain Giant Eagle had reached a settlement in the counties in the lawsuit. The amount of the settlement was not known at press time.
Lake and Trumbull contend that pharmacies “systemically ignored red flags that they were fueling a black market.” The counties argued that those red flags include what pharmacists saw, such as young and seemingly healthy customers paying cash for purportedly legitimate opioid prescriptions, and things that the corporations simply declined to identify, such as patterns of suspicious prescribing.
The counties say those red flags appeared in two areas: at the pharmacy counter where drugs are dispensed and at the pharmacies’ lesser-known distribution channels, through which drugs are shipped to their stores. If the pharmacies are found liable in both areas, they could face huge damages, according to analysts, who have projected that pharmacy industry exposure may exceed the $21 billion global settlement proposed by wholesale distributors.
The jury will decide whether any pharmacies – which now comprise CVS, Walgreens and Walmart – are liable for creating a public nuisance of opioid addition by failing to prevent diversion. If the jury finds for the countries, U.S. District Judge Dan Polster, who is overseeing the trial, will determine damages. Those have been estimated at more than a billion dollars for each of the countries.
The cases are County of Lake v. Purdue Pharma LP et al. (case number 1:18-op-45032), County of Trumbull v. Purdue Pharma LP et al. (case number 1:18-op-45079) and In re: National Prescription Opiate Litigation (case number 1:17-md-02804) all in the U.S. District Court for the Northern District of Ohio.
DRUG MANUFACTURERS FRAUD LITIGATION
Avarice And Hubris Of Silicon Valley: Drawing The Line Between “Fake It ’Til You Make It” And Criminal Fraud
Theranos Inc. was a privately held corporation touted as a breakthrough health technology company claiming to have devised revolutionary blood-testing technology. By the time the United States indicted former Silicon Valley luminary Elizabeth Holmes in 2018, however, the once high-flying Theranos was all but dead. This came some three years after an investigation by The Wall Street Journal raised concerns about the company’s technology.
Consequently, the Holmes case has become somewhat of a cautionary tale about a “fake it till you make it” ethos in Silicon Valley. The hype and stretching of the truth in Silicon Valley fundraising activities have been made known to the jury in this case.
To keep the focus on Theranos, prosecutors have tried to prevent Holmes’ lawyers from arguing that it’s common practice for start-ups to exaggerate their claims to garner investments. In his opening statement delivered in the case, Assistant U.S. Attorney Robert Leach told the jury:
This is a case about fraud, about lying and cheating to get money,…[i]t’s a crime on Main Street, and it’s a crime in Silicon Valley.
The Holmes trial reveals Silicon Valley’s medical ineptitude, impervious culture and reckless tendencies. During the trial, the record has already been filled with examples of Theranos’ willingness to “move fast and break things” and to “fake it till you make it.”
There have been numerous illustrations of the massive fraudulent conduct by Theranos’ officials and top employees. During the trial, the prosecution introduced brazen and incriminating illustrations of Theranos’ fraudulent activity. The following are examples:
- Holmes used a doctored Pfizer report that falsely touted Theranos devices’ technology to secure lucrative contracts, as well as hundreds of millions of dollars from high-profile investors like News Corp. founder Rupert Murdoch and PFM LP hedge fund manager Brian Grossman.
- Holmes made the outright false claim to investors that Theranos technology had been validated by 10 of the 15 largest pharmaceutical companies. According to the government, Theranos invented a 55-page report that prominently displayed the logos of pharmaceutical makers like GlaxoSmithKline, Pfizer and Schering-Plough and that appeared to validate Theranos technology. Holmes would provide the three independent “due-diligence reports” on Theranos Systems directly to investors.
- But the pharmaceutical companies listed had not written, approved, or agreed with the conclusions in one of the diligence reports that Ms. Holmes sent to Walgreens, which prosecutors presented in court, included the pharmaceutical company Schering-Plough Corp’s logo.
The jurors have heard and seen these and numerous other examples of how fast and loose Theranos key officials and top employees played with the truth. Falsity and deception were clearly the order of the day at Theranos.
Fraud remains the primary and ever-present tension between medical-testing speed and reliability in the Holmes criminal trial. While high-profile start-up founders from Uber’s Travis Kalanick to WeWork’s Adam Neumann have experienced swift falls from grace over ethics scandals, Elizabeth Holmes may become one of the few to go to jail for her conduct. Her trial may finally showcase the true consequences of the founder’s bad behavior and false representations. But an ancillary tension derives from this trial’s questioning the merits of failure versus fraud.
We will continue to update our readers on the developments in this ongoing trial. Our firm has a history of exposing massive frauds by corporations, particularly in the pharmaceutical industry. This trial is another example of corporate fraud that directly impacts consumers and their health. Our court system is quite often the last resort to combat consumer fraud, and our firm is committed to being a strong and forceful voice for victims of corporate fraud.
Sources: Law360.com, New York Times, Washington Post and Wall Street Journal
9th Circuit Clarifies Timely Removal Of Suits In Boeing Case
The Ninth Circuit Court of Appeals has sent an asbestos suit against Boeing back to federal court. But the court’s decision is significant in that it clarifies when a suit can be timely removed from state court to federal court. In the published decision, the appeals court panel said that the 30-day time for removing a suit to federal court doesn’t start until a motion, order or other kind of official court document makes a ground for removal “unequivocally clear and certain.” The panel said there are two ways under the Federal Rules for Civil Procedure that a suit can be removed to federal court:
- The first is when the basis for removal to federal court is clear from the complaint and
- the second is when there is a filing in which a defendant finds out that the case can be removed.
The ruling in this case set a standard for the second pathway for removal. In that regard, the panel said:
The timeliness of the removal by defendant-appellant The Boeing Company … under the second pathway has confounded the parties, the district court, and our court. As a result, the parties have been embroiled in collateral litigation for nineteen months, in a case in which time is distinctly of the essence.
In the case, Connie Dietrich, the plaintiff was diagnosed with mesothelioma in July 2018 and sued Boeing and other defendants in the fall of that year. She claimed that her father and husband worked with products that contained asbestos and that she was exposed to it when they came home. According to the panel, her claims against Boeing did not allege that her family was exposed to asbestos through Boeing’s work with the military, which would have made Boeing aware of a possible basis for removal to federal court under the federal officer statute. The panel said that the statute allows suits to be moved to federal court if a federal officer is involved.
In April 2019, Mrs. Dietrich responded to Boeing’s discovery requests. She stated clearly for the first time that she was exposed to asbestos by her late husband’s exposure while he worked on Boeing aircraft that had asbestos-containing parts during his service in the U.S. Marine Corps. Boeing removed the suit 27 days later to federal court. The district court subsequently granted Mrs. Dietrich’s motion to send the suit back to state court on the grounds that the removal was too late.
The lower court determined that Boeing had enough information to remove the suit before April 16, 2019, based in part on the Dietrich children’s depositions. Those depositions were taken from April 8 through April 10, 2019. The Ninth Circuit panel pointed to a Fifth Circuit ruling in Morgan v. Huntington Ingalls Inc. that held that the plain meaning of “other paper” doesn’t include oral testimony.
Boeing’s removal, according to the panel, was timely because it clearly didn’t get the transcripts from the depositions before April 15, 2019, since they weren’t even certified then. In this ruling, the panel adopted the same “unequivocally clear and certain” standard for removal adopted by the Fifth and Tenth Circuits. The panel, relating to the standard, said:
We hope that this standard will increase certainty, promote fairness, and materially reduce the types of delays that occurred in this case, delays that conflict with one of the basic principles of our legal system — justice delayed is justice denied. Finally, given the time sensitive nature of this dispute, we urge the district court to resolve this case as swiftly as possible on remand.
Mrs. Dietrich is represented by Tyler Stock and Benno Ashrafi of Weitz & Luxenburg PC. The case is Dietrich v. The Boeing Co. (case number 19-56409) in the U.S. Court of Appeals for the Ninth Circuit.
THE WHISTLEBLOWER LITIGATION
Huntsville Jury Awards $100 Million False Claims Act Verdict
On Sept. 24, 2021, a Huntsville Jury found that defense contractor MD Helicopter defrauded the federal government to the tune of $36 million. Under the FCA, the damages must be trebled, bringing the total verdict to $108 million. In a qui tam complaint, two former MD employees alleged that MD unlawfully inflated the prices of their helicopters to sell to the government, which in turn provided the helicopters to U.S. foreign allies.
According to the complaint, MD was able to carry out the fraudulent scheme through the unethical relationship of its CEO, Lynn Tilton, with then-Colonel and Army project manager Norbert Vergez. Additionally, the relators said that Tilton promised Col. Vergez a high-paying job after he retired from the Army and hired him as an employee of a sister company before his retirement. In return, Col. Vergez used his power and influence to help MD land lucrative contracts with the Army. The unlawful and fraudulent conduct resulted in MD being awarded five contracts in 2011 and 2012.
While the factual allegations that led to the verdict are compelling, the case endured an uphill legal battle. In 2016, U.S. District Judge Abdul Kallon dismissed the whistleblowers’ complaint. In response to a motion to dismiss, the relators argued that MD’s failure to disclose the improper relationship between Tilton and Vergez violated the Federal Acquisition Regulation (FAR), which gives rise to FCA liability. Under FAR 52.203-13, contractors are required to disclose “credible evidence that a principal, employee, agent, or subcontractor of the contractor has violated federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations.” Judge Kallon dismissed the complaint ruling that compliance with FAR is not an “express condition of payment” when billing the Department of Defense (DOD) and thus, does not create a basis for FCA liability.
In January 2018, the Eleventh Circuit reversed the district court’s decision and reinstated the complaint. The Eleventh Circuit directed the district court to reconsider the allegations in light of the Supreme Court’s ruling in Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. ct. 1989 (2016). In Escobar, the Court decided that the implied certification theory can be a basis of liability under the FCA and omissions about one’s violation of statutory, regulatory and / or contractual requirements does not have to be an express condition of payment to create liability.
Each year, DOD pays defense contractors millions of taxpayer dollars to perform important jobs for the military. Beasley Allen lawyers are currently handling False Claims Act cases against defense contractors in the Northern District of Alabama. If you have a matter concerning a potential False Claim Act case, feel free to contact any of the lawyers on our Whistleblower Litigation Team: Lance Gould, Larry Golston, Leon Hampton, Lauren Miles, Tyner Helms. They can be contacted by phone at 800-898-2034 or by email as follows: [email protected]; [email protected]; [email protected]; [email protected]; or [email protected].
California Jury Returns $8 Million FCA Verdict Against Sigma Corp.
A California federal jury last month returned an $8 million verdict against Sigma Corp., a New Jersey-based waterworks and fire protection company. It was alleged in a False Claims Act suit, filed by a whistleblower, that Sigma evaded a triple-digit tariff on Chinese-made pipe fittings. The jury unanimously found that the company violated the FCA by knowingly making false statements to import Chinese-made welded outlets in order to avoid paying a 182.9% anti-dumping duty order. The jury found that importer Island Industries Inc., the whistleblower, proved that Sigma owes nearly $8.09 million in damages.
Island Industries — a Tennessee-based manufacturer of fire protection and steel piping system supplies, including welded outlets — in 2017 sued Sigma, along with Vandewater International Inc. and its president Neil Reubans; Anvil International LLC; Smith-Cooper International and Allied Rubber & Gasket Co. According to the complaint, for more than a decade, the defendants worked with Chinese manufacturers of welded outlets and the China-East Resources Import and Export Co. to evade anti-dumping duties by declaring the outlets to be steel products that aren’t subject to the tariffs, lying about where the products came from and hiding the outlets in shipments of products not subject to the tariffs.
During the past five years alone, Island Industries said the defendants imported or aided the importation of at least $50 million of Chinese-made welded outlets without paying the triple-figure anti-dumping duty and likely have deprived the U.S. of $200 million since 2004. The Chinese companies were not named as defendants in the case.
In March 2020, Judge Klausner granted a joint stipulation to dismiss Anvil International before granting another joint motion to dismiss Allied Rubber & Gasket in August 2020. Smith-Cooper reached an undisclosed settlement with Island Industries in March and was dismissed from the case.
Judge Klausner paused the case in April against Vandewater and Reubans after they filed for bankruptcy. Thus Island Industries went to trial only against Sigma. The jury returned the $8 million verdict, which under the FCA will be tripled. The company is asking for a little more than $26 million in damages, the motion states.
Island Industries is represented by Kelly B. Kramer, C. Mitchell Hendy, Sandor Callahan, Matthew Marmolejo, Matthew McConkey, Richard Ben-Veniste, Reginald Goeke and Sasha Keck of Mayer Brown LLP.
The case is U.S. ex. rel. Island Industries Inc. v. Vandewater International Inc. et al. (case number 2:17-cv-04393) in the U.S. District Court for the Central District of California.
Theranos’ Efforts To Silence Whistleblowers Demand Added Protections
We have discussed the criminal trial of former Theranos CEO Elizabeth Holmes in this issue of the Report. As the trial continues, it has revealed how the leadership at Theranos Inc. tried to silence and intimidate whistleblowers before regulators intervened and the company dissolved in 2018. The extent to which Theranos tried to keep former employees from talking about the company after they left is well-documented. Theranos’ records detail $150,000 paid to investigations firm Interfor and private investigator David Fechheimer for what was listed in records as “E. Cheung & T. Shultz project”—a reference to Erika Cheung and Tyler Shultz, two junior Theranos employees who quit over concerns about the company’s practices and later spoke out, including talking to The Wall Street Journal, about their experiences in the company.
Testimony in the Holmes trial describes how secrecy was the norm, if not the rule, at Theranos. Employees were discouraged from even listing the company on LinkedIn pages. Trial testimony has described how Theranos exploited legal bullying tactics to intimidate whistleblowers. In fact, Erika Cheung testified to the circumstances motivating her to report concerns with the accuracy of Theranos’ blood tests in September 2021. While Cheung finally decided to quit Theranos in April 2014, she did not decide to become a whistleblower against the startup until roughly a year later. Cheung quit after receiving a threatening letter from Theranos’ counsel, delivered to her in the parking lot of her then-employer.
The threatening letter from Theranos’ counsel accused Cheung of defaming Theranos and disclosing Theranos’ trade secrets to then-The Wall Street Journal reporter John Carreyrou, who ran an investigative series that year that cast doubt on the high-flying startup’s technology. Cheung said almost immediately after getting the letter in 2015, she reported Theranos to the U.S. Centers for Medicare & Medicaid Services. In her nearly 1,800-word letter, she related that Theranos ignored standards for staff credentials, frequently used expired lab supplies and that its proprietary testing devices had “major stability, precision and accuracy problems.” A few months later, Cheung filed a whistleblower complaint about her concerns.
The ongoing criminal trial of Elizabeth Holmes teaches lots of needed lessons. But one that is badly needed is the need for greater protections for whistleblowers like Erika Cheung, who come forward at tremendous risk to their careers and reputations. The actions of whistleblowers ultimately protect the public from fraud, threats to public health and safety, and other wrongdoing.
On Oct. 8, 2021, the U.S. House of Representatives Financial Services Committee Subcommittee on Oversight and Investigations chair introduced the Whistleblower Protection Reform Act (WPRA) of 2021 concurrent with Facebook Inc. whistleblower Frances Haugen testifying at a U.S. Senate hearing and the Elizabeth Holmes trial. If Congress is serious about protecting truth-tellers, it should promptly enact the WPRA. The Act will protect internal disclosures, a burden of proof that gives corporate whistleblowers a chance to prevail, an unqualified right to try a retaliation claim before a jury, and the opportunity to recover compensatory damages.
Whistleblowers can identify possible fraud and other violations much earlier than might otherwise have been possible through their knowledge of the circumstances and individuals involved. Truth-tellers deserve genuine whistleblower protection.
The Beasley Allen Whistleblower Litigation Team
Lawyers on Beasley Allen’s Whistleblower Litigation Team are still very busy handling cases around the country under the False Claims Act (FCA). We had predicted that whistleblower litigation would continue to be very active, proving to be a most accurate appraisal. Fraud against the federal government is being committed by all too many industries in this country, especially in the healthcare field. That has been and continues to be a huge problem. It appears the effects of the pandemic have made wrongdoing by corporations more attractive and much easier.
We continue to stress that whistleblowers are essential and key to exposing corporate wrongdoing and fraud against the government. Their essential role has intensified dramatically and will continue in that direction in the immediate future and beyond.
A person who has first-hand knowledge of fraud or other wrongdoing may have a whistleblower case. Before you report suspected fraud or other misconduct – before you “blow the whistle” – it is essential to make sure you have a valid claim and that you prepare for what lies ahead. The experienced group of lawyers on our team is dedicated to handling whistleblower cases.
It’s important to know that if you are aware of any fraudulent activity in corporate America against the federal or state governments, you could be rewarded for reporting the fraud. If you have any questions about whether you qualify as a whistleblower, you can contact one of the lawyers on Beasley Allen’s Whistleblower Litigation Team for a free and confidential evaluation of your claim. There is also a contact form on the Beasley Allen website that you can use.
The Beasley Allen lawyers set out below are on the Whistleblower Litigation Team: Larry Golston ([email protected]), Lance Gould ([email protected]), James Eubank ([email protected]), Paul Evans ([email protected]), Leon Hampton ([email protected]), Tyner Helms ([email protected]) and Lauren Miles ([email protected]). Dee Miles ([email protected]) heads our Consumer Fraud & Commercial Litigation Section, participates in whistleblower litigation, and works with the litigation team. The lawyers can be reached by phone at 800-898-2034 or by email.
PRODUCT LIABILITY UPDATE
Lack Of Seat Belt Pretensioner Is A Safety Defect
When people think of safety devices in vehicles, seat belts and airbags come to mind. However, most people do not concern themselves with the various components that make up the seat belt or the airbag systems or even how these systems, when engaged, function in a crash.
While a seat belt is a safety device, various components comprise the entirety of the seat belt system and certain parts that can be included to further protect vehicle occupants in the event of a crash.
One such component is a seat belt pretensioner. A seat belt pretensioner is a device that receives a signal from a vehicle’s sensors, like airbags, to deploy in an impending crash. Once the pretensioner has been triggered, it tightens the seat belt webbing, removing any slack and locking the seat belt to protect the occupant by reducing an occupant’s movement in a crash and keeping an occupant appropriately coupled to the seat. This also helps to evenly distribute the loads over the whole body of an occupant during a crash.
Pretensioners are either located in the buckle (buckle pretensioner), the retractor (retractor pretensioner), or the anchor (anchor pretensioner) of the seat belt system or some combination of these locations. Pretensioners are commonly located in the seat belt systems of front seat occupant positions of a vehicle.
Most vehicle manufacturers use the same sensing system to deploy the vehicle’s airbags to trigger seat belt pretensioners’ deployment. In fact, many automotive manufacturers time the deployment of the front seat pretensioners with the airbags’ deployment to optimize the occupant’s position as the airbag deploys to protect the occupant during a crash.
Although the automotive industry is aware of the safety benefits of seat belt pretensioners and protecting occupants in crashes, most automotive manufacturers only provide seat belt pretensioners to front-seat occupants, leaving rear occupants without this safety technology and at an increased risk for severe injury.
In particular, seat belt pretensioners lower the risk of a belted occupant submarining in a crash. “Submarining” occurs when an occupant slides forward and under the lap-belt portion of the seat belt, causing it to move up the abdomen of the occupant resulting in severe and often fatal injuries to the internal organs and spinal cord.
When a seat belt pretensioner retracts the seat belt webbing in a crash, it tightens and locks the belt in place, helping prevent an occupant’s movement in a crash. It helps to keep the seat belt properly positioned during the collision.
Even though seat belt pretensioners are available for mass production and could be implemented in the design of rear seat belt systems, many automobile manufacturers do not utilize them; thus, putting rear seat occupants at risk for a “submarining” injury which could be fatal or result in a spinal cord injury rendering the occupant a paraplegic or quadriplegic.
Beasley Allen lawyers in our Personal Injury & Products Lability Section have handled cases where rear seat occupants died or suffered severe and permanent spinal cord injuries from submarining under the lap-belt portion of a rear seat belt that was not equipped with a seat belt pretensioner. Had the occupant been provided this safety device in their rear seat belt system, the injuries would have been prevented. If a rear seat occupant sustains an injury associated with submarining under the lap-belt portion of the seat belt, a lack of seat belt pretensioner is a defect theory that should be investigated.
If you have any questions, contact Mary Leah Miller, a lawyer in our Atlanta office, at 800-898-2034 or by email at [email protected]. She will be glad to talk with you.
Wrongful Death Case Filed Involving Amtrak Crash
The wife of an Illinois man who died when an Amtrak train from Chicago derailed has filed suit against Amtrak and BNSF Railway. Rebecca Schneider, whose 28-year-old husband Zachariah Schneider was one of three people killed in the September derailment in Montana, filed the lawsuit in federal court, alleging negligence, wrongful death and personal injury. Mr. and Mrs. Schneider had been westbound on the Empire Builder from Chicago to Seattle when eight of the train’s 10 cars derailed. A number of cars tipped over onto their sides. Mrs. Schneider was in the sleeper car and her husband was in the viewing car when it was in was thrown off the tracks. He was killed in the incident.
The lawsuit describes how Mrs. Schneider was able to escape her car with the help of a sledgehammer. It was stated that when she approached her husband’s “flipped and mangled viewing car,” she was said to have “screamed his name over, and over, but heard nothing.”
The couple had been married for nearly five years. Zachariah Schneider was a software engineer and, according to the lawsuit taught children how to code as a volunteer in his spare time. Mr. and Mrs. Schneider were among 141 passengers in total, as well as 16 crew members on this train. Mrs. Schneider one of three passengers killed in the derailment.
The accident occurred near a switch on the BNSF Railway track that the train was traveling on at about 75 mph.
The cause of the accident is being investigated by a 14-member National Transportation Safety Board team, including investigators and railroad signal specialists, according to NTSB spokesman Eric Weiss.
Railroad safety expert David Clarke, Director of the Center for Transportation Research at the University of Tennessee, was questioned as to whether the switch could have “play(ed) some role.” He responded, saying: “It might have been that the front of the train hit the switch and it started fishtailing and that flipped the back part of the train.” He added that “it could also have been the result of a problem in the rail, as regular testing might have missed the defect.” A BNSF Railway spokesman who spoke at a news conference, said the track where the accident occurred was last inspected two days prior to the incident.
It’s alleged in the complaint that Mr. Schneider’s death could have been caused by defects ranging from badly maintained tracks or switches to improper inspections.
Source: Chicago Tribune
$3 Million Verdict In Suit Over Defective Tire Treads
A Pennsylvania jury has awarded Milford Stevens, a truck driver, $3 million in a suit alleging the tires on his vehicle, made by Kumho Tire USA Inc., were defective, causing his vehicle to flip while driving at highway speeds. The jury, after a two-week trial, found that the tires were defective and should not have been on the market.
Stevens was driving for Thomas Construction in September 2014, carrying 72,000 pounds of sand, when the tread on the left front Kumho Powerfleet 983 tire separated, causing his truck to flip over. Wes Ball of Kaster Lynch Farrar & Ball LLP, one of the lawyers representing the plaintiff, said in a press release:
This truck was a ticking time bomb because manufacturers like Kumho Tire USA are driven by profit rather than safety. Bad designs cause bad problems. Companies like this shouldn’t be allowed to benefit from our system of trade while disregarding the safety of our citizens.
The plaintiff suffered serious injuries in the crash, including fractures to his vertebrae, head and face. Evidence was presented at trial showing that the tire did not have adequate protection to prevent tire failure from oxidation. Dan Sherry Jr. of Eisenberg Rothweiler Winkler Eisenberg & Jeck PC, also representing the plaintiff, told Law360:
Despite that tire passing a Pennsylvania State Police Level 2 commercial vehicle inspection three working days before the crash, Kumho Tire still thought that the jury would believe that the tire, which was specifically marketed for severe service use, was worn out and abused to such a degree that no reasonable person would ever think it could be roadworthy. The jury also rejected Kumho Tire’s defense on damages and their contention that Mr. Stevens only needed 13 dollars a day to compensate him for his severe orthopedic and neurologic injuries that cause him intense pain and limit virtually all of his activities of daily living.
The jury found that the tire was defective in its design, and not because of a manufacturing defect. In the verdict, the plaintiff was awarded approximately $256,000 for past medical expenses, $554,000 for his future life care plan, and $400,000 for past and future loss of household services, plus $1.8 million in noneconomic damages.
The plaintiff first sued Good Tire Service Inc. in 2015, seeking to hold it responsible for selling the tire to his employer to use on the company’s truck. Good Tire then filed a pleading adding Kumho, the manufacturer of the tire, to the suit.
In its pleading, Good Tire said Kumho would be liable for any damages should the court find Good Tire liable. In its pretrial statement, Good Tire also said that there was no record that Good Tire sold the tire at issue in the suit or that it had a hand in making or designing the tire. Good Tire reached a confidential settlement with the Plaintiff before the trial began.
Plaintiff Stevens is represented by Wes Ball and Skip Lynch of Kaster Lynch Farrar & Ball and Dan Sherry Jr. of Eisenberg Rothweiler Winkler Eisenberg & Jeck. They did a very good job in the case.
The case is Stevens v. Good Tire Service Inc. et al. (case number GD 15 013492) in the Court of Common Pleas of Allegheny County, Pennsylvania.
Jury Awards $25 Million To Family In Death Of 3-Year-Old Daughter
A jury has found that a window blind in the home of Reno and Sunny Mahe was defective, causing the strangulation death Elsie Mahe, of the couple’s daughter. The 3-year-old child became tangled in blind cords on Nov. 22, 2016, and she died from her injuries a week later. The child was found with the cords around her neck. Doctors, after a neurological exam, determined she was brain dead. The child’s organs were donated so she could be a “life-saving miracle for others,” the family said at the time.
A lawsuit was filed in Third District Court against Century Blinds, a California company. The complaint said Elsie suffered fear, pain and suffering from her strangulation – and that the family has suffered extreme mental and emotional anguish. The family says the suit was brought against the manufacturer “to raise public awareness of the strangulation hazard corded blinds pose in homes with children.”
The Salt Lake County jury found that the company designed blinds that were defective, and failed to provide an adequate warning that they could be “unreasonably dangerous.” A verdict was returned for $25 million in damages. Jurors awarded $1 million to Elsie Mahe’s estate and $24 million to the Mahe family.
Alan W. Mortensen, one of the lawyers who represented the family, released a statement, saying in part:
The Mahes are relieved that the verdict sends a very clear message to the window covering industry that corded blinds are dangerous in homes with small children and that the industry must do more to protect children who are dying at a rate of 1 to 2 children a month on corded window coverings.
While no amount of money can ever bring Elsie back, it is the Mahe’s hope that the verdict will bring public awareness to this tragic defect in corded blinds, and will finally force the window covering industry to do more to protect children from now going forward.
Sunny Mahe, the child’s mother, released a statement regarding the jury’s verdict. We are going to provide a portion of her statement that has a message with which parents of small children will readily identify. This hurting mother tells a compelling story about the loss of her child. I believe, while the statement is lengthy, it’s a story that should also be heard by the manufacturers of products that are expected to be used in homes or otherwise by consumers.
When Elsie had her accident, I had no idea that children were dying on corded blinds. I had no idea that it was an accident that happens once or twice a month. The blinds that were sold to me had a warning label from 1985 (outdated at time of sale by 3 generations of industry-standard updates) and I never even knew it was there, hidden underneath the bottom rail resting against the sill. I was never offered a child-safe wand instead of cords, nor was I given cord cleats to wrap the cords up out of reach. I didn’t know what a cord cleat was. I didn’t know to ask for them – you don’t know what you don’t know
I never wanted to know this much about window blinds. I thought they would just get installed and I would not think about them again. Maybe you already knew that corded window blinds were listed by the Consumer Product Safety Commission as a “top 5 hidden hazard” in the home? Maybe you are one of the lucky ones that already knew about cutting the cords short, or installing cord cleats, or never placing furniture in front of your window blinds? Or perhaps you are among the millions of mothers like me that just did not know that you would need to childproof them.
I know all of that now. But I had to pay for this information with the life of my child.
Our trial was the first of it’s kind. The precedent that it sets has already impacted movement within the industry. We had been offered over a million dollars pre-trial to just go away. A million dollars would not have moved the needle to impact change for anyone else but me. If at any point I had believed this was only about me and my family, I would not have bothered. I would not have chosen to relive in gruesome detail each aspect of Elsie’s horrific accident, knowing the entire defense was to blame me. Do you have any idea how terrifying it was for me to take the witness stand and be shown police photos of my home from the day of the accident with the intent of proving that I was a negligent mom? A dusty piano, a couch filled with unwanted items on their way out the door to DI, the cluttered under belly of my heavy sectional sofa that had been tossed in half for the first responders to have more room to work on Elsie, wrappers from the equipment and purple medical gloves left behind on my living room floor next to Elsie’s favorite dress that had been cut off her tiny body and left behind – cold, sterile snapshots of the worst day of my life.
And the reality is, now I already know all I need to about blinds. I have already removed all of the corded blinds from inside my home. My child is already dead. I already lost before the trial started, so there would be no “winning” for me; no astronomical amount of money could ever compensate for the loss of Elsie and it feels repulsive that anyone would believe that it could.
The jury returned from deliberation with a number that far exceeded any amount suggested during the trial. The decision to award punitive damages is something that a jury decides to pursue when they find a person’s or corporation’s conduct to be reprehensible. It is intended to punish past conduct and discourage future infractions. That is the message that was received by the industry loud and clear by the verdict the jury pronounced. This win was for some future mother that I hope will never even know that this used to be a thing that could happen. We have done our part to protect other families from having to endure the loss that we have.
This result, in this case, and its message will definitely get the attention of the manufacturers of blinds to be used in homes. Alan Mortenson, Lance Milne, and Chris Cheney, with the firm Dewsnup, Olsen, Worel, Havas, Mortensen, Milne, a Salt Lake City, Utah, law firm, represented the family. They did a very good job in the case.
Source: KUTV News
Philips Sleep Apnea Device Suits Sent To Pennsylvania Federal Court
Lawsuits against Koninklijke Philips NV involving sleep apnea breathing machines claimed to be defective will be consolidated in a Pittsburgh federal court. Most of the recalled machines were built at a factory outside the Pennsylvania city, the Judicial Panel on Multidistrict Litigation has said this was a major reason for its selection.
The MDL will be assigned to U.S. District Judge Joy Flowers Conti. The panel’s order transferred an initial 10 lawsuits from Delaware, Florida, Georgia, Massachusetts and Pennsylvania’s Eastern District to Judge Conti’s court; a conditional transfer order that followed sent 84 more cases to Western Pennsylvania from around the country.
There were at least 110 suits against Philips across 30 federal districts as of late September, including 81 proposed class actions, over a recall of the company’s CPAP, Bi-Level PAP and mechanical ventilator devices containing polyester-based polyurethane sound abatement foam, or PE-PUR foam. According to the June recall, that foam can degrade, releasing bits of foam or chemicals where patients can inhale them.
Beasley Allen lawyer Beau Darley, representing a plaintiff being transferred from Georgia, observed:
We believe the panel’s decision to send the MDL to the Western District of Pennsylvania is a positive one. We understand that Judge Conti is an excellent and capable jurist with experience handling MDL’s and other complex litigation.
The Georgia plaintiffs are represented by Andy Birchfield, Beau Darley, Joseph VanZandt and Kendall Dunson of Beasley Allen. The Delaware plaintiffs are represented by R. Joseph Hrubiec of McGivney Kluger Clark & Intoccia PC. The Florida plaintiffs are represented by Aaron Richard Modiano of Arnall Golden Gregory LLP. The Massachusetts lawyers are represented by attorneys from Scott & Scott LLP, Silver Golub & Teitell LLP, Bailey & Glasser LLP, Pomerantz LLP, Andrews DeValerio, Girard Sharp LLP, Block & Leviton LLP, and Berger Montague PC. The plaintiffs from the Eastern District of Pennsylvania are represented by Fred S. Longer, Laurence S. Berman, Sandra L. Duggan and Arnold Levin of Levin Sedran & Berman.
The case is In Re: Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Products Liability Litigation (MDL Number 3014) before the U.S. Judicial Panel on Multidistrict Litigation.
Beasley Allen Hired By Family Of Woman Killed In Georgia Plane Crash
The family of Lauren Harrington, 42, has hired Beasley Allen’s Mike Andrews to represent them as the investigation of her death unfolds. Ms. Harrington died in a plane crash on Oct. 8 at the Dekalb-Peachtree Airport outside of Atlanta, Georgia. Jonathan Rosen owned and was operating the single-engine Cessna P210N Centurion aircraft at the time of the crash. The adult passengers were onboard along with Rosen’s 14-year-old daughter, Allison, and her friend Julia Smith, 13. All on the plane were fatally injured.
Mike explains that the pilot is responsible for ensuring that the plane is airworthy and within flight limits. He will closely consider Rosen’s pilot qualifications and training and the airworthiness of the aircraft, specifically its weight and balance.
According to a Safety Alert issued by the National Transportation Safety Board (NTSB), 136 general aviation crashes that occurred between 2008 and 2016 “were related to pilots improperly conducting preflight performance calculations for weight and balance or not conducting them at all. One-third of those crashes were fatal, killing the pilot and / or passengers. The alert warned pilots that “operating outside of the CG [center of gravity] can severely degrade an aircraft’s performance characteristics and ultimately lead to an aerodynamic stall and / or loss of aircraft control, typically during takeoff or landing.” The independent agency is charged with investigating all civil aviation crashes in the U.S. and providing safety recommendations.
The Rosen plane had been fully fueled and was bound for Houston, Texas, when it crashed at 1:11 p.m. local time. The NTSB and the Federal Aviation Administration (FAA) are also investigating the crash. NTSB investigators confirmed that the plane only reached 75 feet before falling from the sky. In addition to the plane’s weight and balance, the firm and federal investigators will examine the aircraft’s service history, the pilot’s qualifications and even the weather, which was clear on the day of the crash.
The aircraft’s engine was recently upgraded from a Continental engine to a Rolls Royce turbine engine, which consumes more fuel because it can carry more weight. The plane was also outfitted with an additional fuel tank to meet the new engine’s need. Eyewitnesses reported that the aircraft crashed to the ground, bounced, and flipped on its side. Witnesses told Fox5 Atlanta that they didn’t hear anything before the plane crashed but almost immediately saw the black billowing smoke and flames from the fire. After impacting the ground, the aircraft was engulfed in flames and incinerated within minutes because of the large amount of jet fuel.
Sources: National Transportation Safety Board, Fox5 Atlanta
Aircraft Litigation At Beasley Allen
If you would like to have more information on any aspect of aviation litigation, including any part of the ongoing Boeing litigation, contact Mike Andrews at 800-898-2034 or by email [email protected]. Mike is the lead lawyer in our firm on all aircraft-related litigation.
THE JUUL LITIGATION
FDA Decision On JUUL Imminent
In September, the Food and Drug Administration (FDA) denied approval to almost one million e-cigarettes, stating that their applications did not provide enough evidence to show that the benefit to smokers outweighed the now-known public health risks to teenagers. At the time, the FDA refused to rule on the market leaders in e-cigarette devices. On October 12th, the FDA decided to allow R.J. Reynolds, a leading combustible cigarette manufacturer, to market three e-cigarette products. This is the first time the FDA has authorized a vaping product from the applications submitted. The FDA found that R.J. Reynolds presented information to show that those products were “appropriate for the protection of public health.” R.J. Reynolds submitted a study finding that those who used the Vuse products had less exposure to harmful substances than traditional cigarette smokers.
Specifically, the FDA allowed RJ Reynolds to market its Vuse products, limiting the flavors to tobacco only and denying 10 other proposed Vuse flavors. They are still reviewing their application for menthol flavored vape products. Two of the biggest issues with the youth e-cigarette epidemic are the availability of flavors and the marketing of the products as less harmful, even fun. The 2021 National Youth Tobacco Survey found that most youth and young adult consumers start with flavors other than tobacco. The FDA also placed restrictions on RJ Reynolds’ ability to market the device through all mediums. They are also required to share their marketing, advertising, and sales plans and data with the FDA regularly.
The FDA’s decision about JUUL is expected to come any day. If JUUL is approved, it will likely be with limited flavors and marketing, much like RJ Reynolds’ Vuse device. These two limitations are already requirements of traditional cigarette companies and will attempt to restrict users to adult consumers. If JUUL’s application is denied, then JUUL products must be pulled from the U.S. market.
The national litigation against JUUL continues to move at a fast pace, with four bellwether trials set for 2022. The first bellwether trial will start in April 2022. To date, nearly 3,000 cases have been filed in the JUUL MDL – over 2,000 personal injury claims and 384 government entities (school districts, cities, counties and tribes). In the California state court litigation in Los Angeles Superior Court, an additional 2,800 cases are pending. Additionally, 14 state attorneys general have filed suit against the e-cigarette manufacturer.
Beasley Allen’s Joseph VanZandt serves on the JUUL PSC. He and Mass Torts Section Head Andy Birchfield head our firm’s efforts to hold JUUL accountable for the damage they have done to thousands of youth around the country. Another Beasley Allen lawyer Beau Darley serves on the PSC for the California state court litigation.
Lawyers at Beasley Allen continue to take new JUUL cases for individuals, school districts, and other government entities that JUUL has impacted. You can contact Joseph VanZandt ([email protected]) or Beau Darley ([email protected]) for more information or if you want to discuss a case.
The JUUL Litigation Team
Beasley Allen lawyers, led by Joseph VanZandt, are heavily involved in the JUUL litigation. They represent individuals suing JUUL, the top U.S. vape maker, for the negative impact its products have had on their lives. Beasley Allen also represents a number of school systems in the JUUL litigation. The firm’s JUUL Litigation Team lawyers have filed JUUL lawsuits on behalf of school districts nationwide. This litigation seeks to protect students and recover resources spent fighting the vaping epidemic.
If you have a potential claim or need more information on JUUL, contact any of the lawyers on the JUUL Litigation team at 800-898-2034 or by email. Members are [email protected], [email protected], [email protected], [email protected], [email protected] or [email protected]. Andy Birchfield ([email protected]), who heads up the firm’s Mass Torts Section, works with the team on the JUUL litigation.
THE ASBESTOS LITIGATION
Environmental Exposures To Asbestos
In 1960, J.C. Wagner published his groundbreaking report analyzing 33 cases of pleural mesothelioma where only eight of the 33 people diagnosed had been occupationally exposed to asbestos. But 20 of the remaining 25 lived near asbestos mines. Wagner’s report established in the scientific community what was already known by many of the largest asbestos-containing product producers – that the risk for cancer extended to anyone exposed to asbestos before, during or after manufacturing. Included in this group were people who had no other exposure to asbestos besides “environmental exposures,” caused by them simply living near the working asbestos mines. The work at those mines resulted in asbestos fibers being spread and residents being exposed.
As more asbestos was mined, milled, and then distributed worldwide, industrial locations and facilities where asbestos was used in large amounts began to impact local residents’ health. One such town, Ambler, Pennsylvania, was home to massive asbestos-containing products’ factories operated by Certainteed Corporation (later Nicolet Industries). In 2011, a Pennsylvania Department of Health study confirmed an elevated rate of asbestos-related cancer among residents of Ambler. The researchers examined cancer diagnoses reported between 1992 and 2008, and they found the rate of mesothelioma in Ambler’s zip code is three times higher than the average rate for Pennsylvania.
The results of this study should come as no surprise. Between the early 1930s and mid-1970s, 1.5 million cubic yards of asbestos-containing waste was dumped in Ambler. These piles of deadly asbestos grew to resemble small mountains. As Certainteed and Nicolet insisted that they were safe, local children regularly played on the piles. The wind often blew asbestos dust into the yards and homes of nearby residents.
Unfortunately, this is but one example of “environmental exposures” resulting in tragedy on a massive scale. It also happened in other locations throughout the country.
At Beasley Allen, we have skilled and experienced asbestos lawyers to review each client’s claim to understand the source of their exposures and litigate the case effectively. Without this experience, clients are often unable to identify who caused them to develop this terrible disease. We ensure that does not happen at Beasley Allen. If you have questions or would like to discuss a potential case, contact Charlie Stern at 800-898-2034 or email at [email protected].
Sources: Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province (J.C. Wagner); www.health.pa.gov
The Asbestos Litigation Team
Asbestos litigation continues to be extensive nationwide. The Asbestos Litigation Team at Beasley Allen is headed by Charlie Stern. Other team members are Will Sutton and Cindy Lopez. Rhon Jones, who heads up our Toxic Torts Section, works with the team. Charlie has years of experience in asbestos litigation, and that’s why he was selected to lead the team. If you need assistance with cases involving asbestos products, contact one of the team members by phone at 800-898-2034 or email at [email protected], [email protected], or [email protected].
THE SUNSCREEN LITIGATION
Dozens More Benzene-Containing Products Are Recalled Following Beasley Allen-Led MDL
On Sept. 30, 2021, Coppertone announced its recall of 12 aerosol sunscreen sprays due to the presence of benzene. Bayer also recently recalled nine of its anti-fungal products because of the presence of the carcinogenic chemical.
These recalls follow Beasley Allen’s filing of a federal class action lawsuit on behalf of consumers who bought recalled sunscreen products made by Neutrogena and Aveeno, subsidiaries of Johnson & Johnson (J&J). David Byrne, a lawyer in our firm’s Mass Torts Section, continues to lead a team of lawyers against J&J. Andy Birchfield, who heads the section, is also involved in the litigation.
With at least a dozen proposed class actions in five different federal district courts across the country, J&J told the panel that creating an MDL was warranted in light of the overlapping issues in the cases concerning claims that its Neutrogena and Aveeno sunscreen products contained the toxic substance.
The MDL case is In re: Johnson & Johnson Aerosol Sunscreen Marketing, Sales Practices and Products Liability Litigation (MDL No. 3015) before the Judicial Panel on Multidistrict Litigation.
In addition to Beasley Allen’s David Byrne and Aigner Kolom, the litigation team includes Alex Walsh and Kimberly Channick from Walsh Law PLLC and Seth Meyer, Alex Dravillas and Warren Postman from Keller Lenkner LLC.
JPML Sends J&J Sunscreen Carcinogen Lawsuits To Florida
The Judicial Panel on Multidistrict Litigation (JPML) on Oct. 7 approved centralizing in Florida federal court lawsuits accusing Johnson & Johnson (J&J) of selling sunscreen products tainted with the carcinogen benzene. In considering a motion by the “Jimenez plaintiffs” to centralize the matters in New Jersey federal court, the JPML instead consolidated them before U.S. District Judge Anuraag Singhal of the Southern District of Florida, who is handling the first-filed action at issue. While Judge Singhal has not previously presided over an MDL, he is a highly regarded judge, universally respected for both ability and fairness.
Panel members said in an order that the Southern District of Florida “offers a convenient and readily accessible district,” and they are “confident that Judge Singhal will steer this litigation on a prudent course.” The ruling came about a week after the panel cited New Jersey’s “crushing case load” during a Sept. 30 hearing when deciding whether New Jersey was the right place to centralize the lawsuits.
The suits — which number at least 16 proposed class actions in five federal district courts — allege that J&J unlawfully failed to inform consumers that the sunscreen products contain benzene, which has been linked to leukemia and other forms of cancer.
J&J subsidiary Johnson & Johnson Consumer Inc. on July 14 said it was voluntarily recalling five Neutrogena and Aveeno sunscreen spray product lines. JJCI said in a statement at the time that “internal testing identified low levels of benzene in some samples of the products.” The company also said it would provide refunds for the products. The recall came nearly two months after online pharmacy Valisure released similar test results.
In its order, the JPML found that “centralization of these actions in the Southern District of Florida will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.” Among other benefits, centralization provides the chance to “streamline pretrial proceedings,” “reduce duplicative discovery and conflicting pretrial obligations,” and avoid inconsistent pretrial decisions, the panel said.
The panel noted that the actions will likely “share factual questions” regarding allegations that plaintiffs bought J&J sunscreens containing “excessive amounts of benzene.” The plaintiffs’ claims arise from Valisure’s testing, the panel said. But the JPML stopped short of including related personal injury matters in the MDL in addition to the proposed consumer class actions.
One of the potential tag-along actions is a personal injury case in the Northern District of Alabama. The panel said:
Based on the parties’ arguments, there appears to be some merit to the view that this litigation can proceed more efficiently by allowing these consumer class cases to progress separately from the lone personal injury action.
The panel said transferring the Alabama case “need not — indeed, cannot — be decided now because that case is not squarely before us.” Instead, the panel said it will address transferring personal injury cases like that matter “in due course, as we do with all potential tag-along actions.”
The plaintiffs are represented by Jonathan Shub of Shub Law Firm LLC, Alexandra M. Walsh of Walsh Law PLLC, Charles E. Schaffer of Levin Sedran & Berman LLP, Kiley Grombacher of Bradley Grombacher LLP and François M. Blaudeau of Southern Institute for Medical and Legal Affairs LLC.
The case is In re: Johnson & Johnson Sunscreen Marketing, Sales Practices and Products Liability Litigation (MDL number 3015) before the Judicial Panel on Multidistrict Litigation.
THE PARAQUAT LITIGATION
Parkinson’s Disease is an incurable, progressive nervous system disorder that affects movement. Numerous studies show a link between individuals who have been directly exposed to paraquat and have developed Parkinson’s Disease, which is the basis of the Paraquat MDL. However, each client’s diagnosis of Parkinson’s Disease caused by paraquat must be carefully examined during the client intake process.
One of the most important things to consider when evaluating a new paraquat exposure case is the client’s diagnosis. Parkinsonism is an umbrella of many movement disorder symptoms, and Parkinson’s Disease is only one diagnosis for patients with parkinsonism symptoms. Tremors are common but not required (20% of Parkinson’s patients do not experience tremors). Stiffness / slowing of movement are also common. Other symptoms include impaired posture and balance, loss of automatic movements, speech changes, and writing changes, such as small handwriting.
Many potential clients who have been exposed to paraquat have a general parkinsonism diagnosis. These clients must see the correct type of provider to make sure they have a proper diagnosis, which not only is beneficial to their health but is important for causation in the paraquat litigation.
According to the Parkinson’s Foundation, when selecting a provider, it is imperative that patients seek a neurologist who sees a large percentage of Parkinson’s patients. Alternatively, a neurologist who specializes in parkinsonism is called a movement disorder doctor. The Parkinson’s Foundation’s website allows patients to search by zip code to locate a movement disorder doctor within a certain distance from their home. The website is www.parkinson.org.
Parkinson’s Disease is a differential diagnosis that cannot officially be determined until after death through an autopsy. Since there is no specific test to diagnose Parkinson’s Disease, and because it can take many years to get an official diagnosis, firms should be looking for diagnosed Parkinson’s Disease and Parkinson’s-like symptoms in paraquat cases. If the client has a parkinsonism diagnosis, it is recommended they seek a doctor who fits the criteria above.
Beasley Allen lawyer Julia A. Merritt is a member of the Plaintiffs’ Executive Committee on the Paraquat MDL. She will be happy to answer any questions about diagnosis issues or the status of this important litigation. Beasley Allen continues accepting cases where clients applied paraquat and have Parkinson’s Disease or Parkinson’s-like symptoms. Contact Julia if Beasley Allen can be of assistance to you in your paraquat applicator cases. She can be reached at 800-898-2034 or by email at [email protected].
The Paraquat Litigation Team
We have a Paraquat Litigation Team at Beasley Allen consisting of lawyers in our Toxic Torts Section. This team is handling the paraquat cases. The lawyers on the team are Julia Merritt ([email protected]), who heads up the team, Trisha Green ([email protected]), Ryan Kral ([email protected]) and Matt Pettit ([email protected]). Rhon Jones ([email protected]), who heads up our Toxic Torts Section, is also working with the team on this important litigation. You can contact these lawyers by phone at 800-898-2034 or by email for more information on the litigation, including the MDL.
MASS TORTS LITIGATION
Most Cancer Claims Survive In Beasley Allen Suit Over Weight Loss Drug
U.S. District Judge Greg Kays has issued a ruling in the case against Arena Pharmaceuticals over its weight loss medication Belviq. The judge refused to dismiss certain claims, but the drugmaker avoided design defect claims for now. The company will face the negligence and inadequate warnings claims as the case now moves forward.
It’s claimed in the complaint that Belviq caused Amy Davis’ breast cancer. Roger Smith and Ryan Duplechin, lawyers in our Mass Torts Section, are handling this case for Ms. Davis, who claims her breast cancer diagnosed in November 2019 was caused by her use of Belviq.
Judge Kays ruled that since the complaint failed to specifically identify what role Arena played in manufacturing the now discontinued drug, the defect claim was dismissed. However, that aspect will be corrected once discovery in the case is completed and an amended complaint filed.
The U.S. Food and Drug Administration recommended Belviq be withdrawn from shelves in early 2020 because of an increased concern of cancer. Since then a number of lawsuits have been filed, but there have not been enough cases so far to centralize the litigation into multidistrict litigation. The Judicial Panel on Multidistrict Litigation made that decision in August.
As stated above, most of the claims brought by Ms. Davis in her lawsuit survived the defendant’s motion. Those included allegations that Arena was negligent when it violated a duty of care it owed to her. Judge Kays rejected the complaint’s design defect claim without prejudice. In a separate order, Judge Kays also dismissed Ms. Davis’ claim of negligent misrepresentation against Eisai Inc., another pharmaceutical company.
Ms. Davis, a Kansas City, Missouri, resident, began taking Belviq in 2017 to help lose weight and for “diet control.” Advertisements for the drug mention breast side effects like shrinkage and lactation, but does not mention cancer risk. One of the allegations that survived the defendant’s motion was Ms. Davis’ claim that Arena failed to warn about breast cancer, but Judge Kays said that was only as far as the company failed to provide adequate warnings to her doctor.
Ryan Duplechin, one of the Beasley Allen lawyers representing Ms. Davis, had this to say about the Judge’s ruling:
We are pleased with the Court’s rulings in finding that Ms. Davis sufficiently stated claims for failure to warn, breach of implied warranty, and negligence. We believe that the Court’s ruling to dismiss the design defect claim is one that may potentially be cured by an amended pleading, but we are continuing to evaluate our options for that particular claim.
Arena’s argument that a defendant must have sold the product in question in order to be liable for failure to warn would essentially provide immunity to all manufacturers which utilized a seller or distributor. That interpretation is simply inconsistent with the foundational principles of Missouri’s products liability laws.
Ms. Davis is represented by Roger Smith and Ryan Duplechin of Beasley Allen and David C. DeGreeff of Wagstaff & Cartmell, a Kansas City, MO, law firm.
The case is Amy Davis v. Eisai Inc. et al. (case number 4:20-cv-00762) in the U.S. District Court for the Western District of Missouri.
European Medicines Agency Recommended Rejection Of Belviq Drug Application In 2013 Due To Potential Cancer Link
On Jan. 17, 2013, the European Medicines Agency (EMA) recommended rejection of the weight-loss drug Belviq’s initial application due to identification of several tumor types in rats. The EMA is an agency of the European Union (EU) responsible for the evaluation, supervision, and safety monitoring of medicines in the EU. The EMA performs certain functions similar to that of the FDA, such as evaluating applications for marketing certain drugs and monitoring drug safety.
In its Assessment Report, the EMA concluded that “the risk of carcinogenicity in a man should be further considered in the light of these preclinical findings, together with a discussion on the potential impact on the risk benefit.” Further, the EMA determined for both sexes that “[t]he overall risk benefit is currently considered negative.” As a result, the EMA required Arena Pharmaceuticals, Inc. to provide a written report justifying Belviq’s approval. On May 3, 2013, Arena responded that it would withdraw its application because it would not be able to resolve the EMA’s objections within the required regulatory timeframe.
The U.S. FDA approved Belviq’s New Drug Application in June 2012 but required the manufacturer to conduct a randomized, double-blind, placebo-controlled clinical trial to evaluate the risk of cardiovascular problems due to similar weight-loss drugs that were later linked to cardiovascular issues. The clinical trial was completed on May 14, 2018, but the results were not posted until over a year later, on July 16, 2019. The FDA’s analysis of the study found that just over 7% of patients treated with Belviq were diagnosed with cancers compared to the placebo group. These findings ultimately led Belviq’s manufacturers to recall Belviq voluntarily.
Beasley Allen lawyers continue to investigate cases on behalf of individuals who were prescribed Belviq and were subsequently diagnosed with cancer, including but not limited to pancreatic, colorectal, thyroid and breast cancer. For more information, contact Melissa Prickett, Roger Smith or Ryan Duplechin at 800-898-2304 or email at [email protected], [email protected] or [email protected].
Sources: https://www.ema.europa.eu/en/documents/withdrawal-report/withdrawal-assessment-report-belviq_en.pdf?bcs-agent-scanner=70235bca-2739-1a48-89da-10992979b593 and https://www.ema.europa.eu/en/medicines/human/withdrawn-applications/belviq
Philips Recall Notification – Sleep And Respiratory Care Devices
On June 14, 2021, Philips issued a voluntary recall notification for certain sleep and respiratory care devices. The recall was to address identified potential health risks related to the sound abatement foam in these devices. Philips has utilized polyester-based polyurethane (PE-PUR) sound abatement foam to dampen device vibration and sound during routine operation. In the recall, Philips identified two issues with the foam:
- the potential of the foam to degrade; and
- the potential for chemicals to be emitted from the foam.
Philips has determined from user reports and lab testing that the foam may degrade and produce particulates that can enter the device’s air pathway and be inhaled by the user. Philips’ own lab testing of degraded foam particles has revealed the presence of multiple potentially harmful chemicals, including toluene diamine, toluene diisocyanate, and diethylene glycol.
Philips also reported that lab testing identified Volatile Organic Compounds (VOCs) that can be emitted from the foam. Testing identified two compounds of concern that may be emitted from the foam outside of safety thresholds. The compounds identified are Dimethyl Diazine and Phenol, 2,6-bis (1,1-dimethyllethyl)-4-(10methylpropyl).
As of Sept. 9, approximately 67 lawsuits had been filed in 24 different federal district courts against Philips that allege damages as a result of the recalled machines. The 67 lawsuits included both class actions and individual personal injury actions.
On Oct. 8, the Judicial Panel on Multidistrict Litigation (JPML) ordered that all federally-filed lawsuits against Philips arising from the recall of certain Continuous Positive Airway Pressure (CPAP), Bi-Level Positive Airway Pressure (Bi-Level PAP), and mechanical ventilators devices be consolidated for the purposes of coordinated pretrial proceedings. The JPML’s Order transferred the federally-filed actions to the U.S. District Court for the Western District of Pennsylvania. Judge Joy Flowers Conti, an experienced transferee judge, will preside over the newly-formed MDL No. 3014.
Beasley Allen lawyers are investigating claims related to the devices recalled by Philips where users have developed lung cancer, asthma, chronic respiratory injuries, or kidney disease. For more information, contact Beau Darley or Melissa Prickett at 800-898-2034 or by email at [email protected] or [email protected].
Sources: Philips Recall Notification for Sleep and Respiratory Care Devices – June 14, 2021; Philips Sleep and Respiratory Care Update, Clinical Information for Physicians – June 14, 2021; JPML Transfer Order Filed October 8, 2021, MDL No. 3014, Doc. 203 and https://www.pawd.uscourts.gov/content/joy-flowers-conti-senior-district-judge
J&J COVID Vaccine Being Scrutinized
Almost 14 million people in the United States received the single-dose Johnson and Johnson (J&J) COVID-19 vaccine. During the latest COVID-19 surge, specifically the highly infectious delta variant, questions have arisen about how well the three vaccines authorized in the United States are holding up against this deadly variant. J&J vaccine recipients are being left frustrated and concerned about how few answers exist about the effectiveness and safety of the J&J vaccine.
The J&J vaccine has faced hurdle after hurdle. It has shown a lower rate of preventing COVID-19 symptoms, along with increased risks of adverse events. Enough so that the Food and Drug Administration (FDA) and Centers for Disease Control and Prevention (CDC) briefly paused its use in April to investigate the rare and serious blood disorders they thought likely to have been caused by the vaccine. The FDA subsequently required a warning on the J&J vaccine about these risks. Since then, the FDA has continued to add more warnings to the J&J vaccine. As more people use the J&J vaccine, more is being learned about the increasingly long list of serious side effects that have resulted in injury and death.
The most recent death was from a blood clot confirmed by the Washington State Department of Health to be the state’s first blood clot death after a person received the J&J vaccine. This time the victim was a mother who received the vaccine to spend time in her son’s classroom to help as a “room mom.” A young, vibrant, healthy mother of two who was doing everything right. Her children will no longer have memories of their mother as they grow up. This family will live with the pain of their loss for the rest of their lives. J&J has responded in their usual fashion, releasing the following statement:
The safety and well-being of every individual who receives a Johnson & Johnson product remains our top priority. Any adverse effect report about individuals receiving Johnson & Johnson’s single-shot COVID-19 vaccine, as well as our own assessment of the report, is shared with the European Medicines Agency, U.S. Food and Drug Administration, the World Health Organization (WHO) and other appropriate health authorities where our vaccine is authorized. We strongly support raising awareness of the signs and symptoms of rare events to ensure they can be quickly identified and effectively treated.
J&J has also responded with dubious statements praising the effectiveness of the vaccine. The only people making such questionable statements are people who have a personal stake in the vaccine’s success. As per usual, J&J takes no personal responsibility for deaths they have caused and continue to cause. They continue to express no intention of slowing down.
Beasley Allen lawyers are investigating cases of rare blood clots known as thrombosis (TTS) and a neurological condition called Guillain-Barre Syndrome in people who have received the J&J COVID-19 vaccine. For more information, contact Chad Cook or Melissa Prickett, lawyers from our firm’s Mass Torts Section, at 1-800-898-2034, or by email at [email protected] or [email protected].
J&J Unit Must Face Claims Pelvic Mesh Was Defective
A Florida federal judge has refused to dismiss Johnson & Johnson unit Ethicon Inc. from claims from a woman alleging that two of the company’s pelvic mesh products were defective. U.S. District Judge Aileen M. Cannon ruled that the plaintiffs claims were not filed too late. Ethicon had argued that Plaintiff Adelheid Pirlein should have been on notice soon after her March 2008 surgery that something was wrong and that her August 2012 suit was therefore outside the state’s four-year statute of limitations. But Judge Cannon said the symptoms alone were not enough to put Ms. Pirlein on notice that the mesh itself was defective.
Judge Cannon wrote in the order that Ms. Pirlein at first believed that her symptoms stemmed from something unique to her, or other factors besides the mesh, so a fact-finder must determine whether her claims were tolled until she found out that an alleged defect with the mesh could be responsible.
Plaintiff Pirlein is represented by Bobby J. Bradford and Daniel J. Thornburgh of Aylstock Witkin Kreis & Overholtz PLLC. The case is Pirlein v. Ethicon Inc. et al. (case number 0:20-cv-62202) in the U.S. District Court for the Southern District of Florida.
SEC Whistleblower Program Flies Past $1 Billion Milestone
On Sept. 15, 2021, the U.S. Securities and Exchange Commission (SEC) announced that it had paid awards of $110 million and $4 million to two whistleblowers. The awards are noteworthy – the $110 million award is the second-highest award in the program’s history. However, the real headline is that the total sum awarded by the SEC’s whistleblower program has now surpassed $1 billion since the program began in 2012.
The press release noted that the SEC has paid awards to 207 whistleblowers since the program’s inception. The pace of awards has accelerated over the last couple of years. In 2020 we wrote that the SEC had awarded a record $175 million to whistleblowers in the 2020 fiscal year. That record was shattered by the more than $500 million awarded in FY2021. SEC Chair Gary Gensler said:
Today’s announcement underscores the important role that whistleblowers play in helping the SEC detect, investigate, and prosecute potential violations of the securities laws. The assistance that whistleblowers provide is crucial to the SEC’s ability to enforce the rules of the road for our capital markets.
The release stated the $110 million paid to a single individual consisted of two awards of approximately $40 million related to an SEC enforcement action and approximately $70 million for information that aided in related actions brought by another agency. The release noted that this whistleblower provided “significant independent analysis” to aid the actions.
Emily Pasquinelli, Acting Chief of the SEC’s Office of the Whistleblower, said, “Whistleblowers may provide critical information based on their own independent analysis that facilitates the SEC’s investigation and the successful resolution of the enforcement action.” The talk of “independent analysis” hints that the whistleblower was most likely not an insider but an outside individual who uncovered the fraud through financial analysis.
The $4 million award went to a whistleblower who voluntarily provided original information that aided in a successful enforcement action. The release noted that information was provided after the SEC had already opened an investigation and “taken significant investigative steps” in the matter, which likely lowered the amount of the award.
Additional press releases from the SEC in September and October disclosed other awards of $87.5 million to another five tipsters, including individual awards of over $30 million each to two whistleblowers who exposed “difficult-to-detect violations.”
Beginning in 2012, the SEC’s whistleblower program has always rewarded those who ferret out securities violations that harm the public. Still, the recent pace of awards has shown that the Biden Administration is focused on using this enforcement tool to incentivize whistleblowers to come forward.
This pro-whistleblower stance is further evidenced by the decision to table two controversial amendments to the whistleblower rules proposed last year. The new rules, criticized as discouraging potential whistleblowers, would have altered how the SEC determined award amounts, notably by capping awards in larger cases. In August, Chair Gensler announced that SEC staff were reevaluating the amendments.
Beasley Allen has an experienced group of lawyers dedicated to handling consumer fraud cases, with extensive experience in whistleblower actions and securities fraud. If you need more information or have comments, contact James Eubank, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at [email protected]. James, who worked for years as a securities regulator with the Alabama Securities Commission, leads the team on securities fraud investigations.
Tether To Pay CFTC $41 Million Over Stablecoin Reserve Claims
The U.S. Commodity Futures Trading Commission (CFTC) has announced that Tether will pay $41 million to resolve claims that it misled the market about its namesake stablecoin being “fully backed” by U.S. dollars. The CFTC issued an order settling claims that between June 2016 and February 2019, Tether falsely represented that it had sufficient U.S. dollar reserves to back every one of its tokens, called tethers, in circulation. The CFTC said the company’s stablecoin supply was “not ‘fully-backed’ the majority of the time” and that Tether failed to disclose that it relied on unregulated entities and third parties to hold the funds that comprised those reserves.
Tether agreed to pay a $41 million penalty. The CFTC also said that Bitfinex, a cryptocurrency exchange which has common ownership with Tether, would pay a $1.5 million penalty to resolve claims that it facilitated illegal, off-exchange commodity trading in digital assets with ineligible U.S. citizens.
CFTC Commissioner Dawn Stump put out a statement saying that while she agreed with her agency’s findings, she had concerns that defining stablecoins, a type of cryptocurrency pegged to the U.S. dollar, as “commodities” under the Commodity Exchange Act could “cause confusion about the CFTC’s role in this area.” She said further:
We should seek to ensure the public understands that we do not regulate stablecoins and we do not have daily insight into the businesses of those who issue such. But in pursuing and settling this matter, do we provide users of stablecoins with a false sense of comfort that we are overseeing those who issue and sell these coins such that they are protected from wrongdoing?
The action relates to Tether’s claims that it was able to back every one of its stablecoins “one-to-one” with the “equivalent amount of corresponding fiat currency” and that it would undergo routine audits to ensure that it maintained “100% reserves at all times,” according to the CFTC’s order. For the two and a half years it was making these claims, Tether failed to maintain those promised reserves in accounts that were under its own name or holding funds for it in a trust, and sometimes counted receivables and non-fiat assets among its reserves, the CFTC said.
According to the CFTC’s order, Tether also failed to routinely audit its reserves, didn’t track the real-time status of its reserves until 2018 and failed to disclose between 2018 and early 2019 that its reserves included “unsecured receivables, commercial papers, funds held by third-parties, and other non-fiat assets.” The order against Bitfinex alleges that the platform offered off-exchange “leveraged, margined, or financed trading” in digital assets to U.S. customers who weren’t eligible to be counterparties in those transactions.
The exchange also accepted fiat currency, tethers, bitcoin and other digital assets in those transactions, making it a futures commission merchant that never obtained proper registration, the CFTC claims. Bitfinex agreed to pay a $1.5 million penalty and implement systems designed to prevent any further illegal retail commodity transactions.
The cases are In the Matter of Tether Holdings Limited (case number 22-04) and In the Matter of iFinex Inc. (case number 22-05) before the Commodity Futures Trading Commission.
EMPLOYMENT AND FLSA LITIGATION
Jury Orders Tesla To Pay Former Employee $137 Million Over Racist Treatment
A California jury has awarded $137 million to Owen Diaz, an African American former employee of Tesla. He accused the automaker of ignoring racial abuse he faced at its auto plant in Fremont, California. Owen worked at the factory for approximately a year in 2015 and 2016. Owen, a contracted elevator operator, was hired at Tesla, Elon Musk’s electric automotive company, through a staffing company in 2015. While working for Tesla, Owen faced daily racial epithets from co-workers, such as being called “boy” and the “N-word.” In addition, co-workers also scratched racial epithets and swastikas in a bathroom stall and left drawing of derogatory caricatures of African American children around the factory.
Despite repeated complaints, Tesla did very little if anything to address this racist behavior. The lawsuit alleged that Owen and other African American workers encountered a scene “straight from the Jim Crow era” while working at Tesla. The jury agreed that Tesla created a hostile work environment and awarded Owen $6.9 million for past and future noneconomic damages and $130 million in punitive damages. The lawyers who represented Owen, Lawrence A. Organ, says: “It’s a great thing when one of the richest corporations in America has to have a reckoning of the abhorrent conditions at its factory for Black people.”
The Diaz lawsuit could only move forward because he had not signed one of Tesla’s mandatory arbitration agreements. Since he was employed through a staffing agency, Owen was not required to sign an arbitration agreement. Mandatory arbitration is used by Tesla to force its employees to resolve their disputes with the company behind closed doors rather than in a public trial. Like most companies that use mandatory arbitration, Tesla rarely faces significant damages or takes meaningful corrective actions after a dispute is handled in arbitration.
In May, however, an arbitrator ordered Tesla to pay more than $1 million to another former Tesla employee that worked at Tesla’s Fremont factory involving allegations like those made in the Diaz lawsuit. In that case, the former Tesla employee alleged that co-workers called him racial slurs. Like the Diaz allegations, supervisors ignored his complaint and did nothing to stop the racial harassment.
If you are aware of racial harassment, discrimination, retaliation or racially motivated violence and are interested in pursuing your legal claims, contact Larry Golston, Leon Hampton or Lauren Miles at 800-898-2034 or by email at [email protected], [email protected] or [email protected]. These lawyers in our Consumer Fraud & Commercial Litigation Section handle employment litigation for the firm.
Beasley Allen Handles Employment Cases
Beasley Allen lawyers in our Consumer Fraud & Commercial Litigation Section pursue litigation on behalf of employees against employers in all industries. Every person deserves to be compensated for what they provide in the workplace and to be treated fairly and justly. Upholding the laws and the rights those laws bestowed to individuals benefits every worker. Our firm welcomes any opportunity to investigate such practices. Contact Larry Golston, Leon Hampton or Lauren Miles in our Consumer Fraud & Commercial Litigation Section concerning any employment issues. They can be reached at 800-898-2034 or by email [email protected], [email protected] or [email protected].
PREMISES LIABILITY LITIGATION
Dangers In Atlanta Mall Due To Lack Of Safety Measures For Patrons
Lenox Square, a shopping center in the heart of Atlanta’s wealthy Buckhead residential area, boasts that it has been “the premier shopping destination for fashionistas throughout the Southeast” for over 60 years. However, news stories over the last two years paint a somewhat different picture. Gun violence has left some patrons dead or seriously injured. As discussed previously in the Report, gun violence in Atlanta has spiked over the last year, contributing to the rise in deaths, more than double the number in 2020. Lenox Square mall demonstrates how property owners cannot ignore gun violence and other criminal activity. They have a duty to their patrons and guests to protect against foreseeable dangers and take reasonable security measures.
A Snapshot of Violence at Lenox Square
In September, a man visiting from out-of-town was attacked by thieves in the mall’s parking lot at 3 p.m. on a Sunday. The victim threw his wallet at the thieves and attempted to run to the shopping center’s entrance, but the thieves shot him. He survived but was stunned, saying, “Sunday afternoon in broad daylight,” when describing his attack to Fox5Atlanta.
In June, a security guard at the Apple Store in the shopping center was critically injured after being shot in an attempted robbery, CBS 46 reported. Last November, a woman was sexually assaulted at Lenox Square and earlier in the year, March 2020, a 25-year-old man was shot two times in the head in the mall’s parking lot, 11Alive reported. The news outlet showed a timeline of recent gun violence incidents beginning with an incident in December 2019 when a Macy’s employee was shot while being robbed.
Pattern of Violence Puts Property Owners on Notice
This pattern of violence and the premises’ failure to protect patrons and others lawfully present on the property from gun violence and similar dangers stand as a prime potential case of negligent security. Such a case involves premises liability resulting from a crime committed by a third-party assailant that causes serious injury or death to a person when a property owner fails to take reasonable measures to prevent criminal activity.
Beasley Allen lawyers, and especially the lawyers in our Atlanta office, handle these types of cases. Parker Miller, who is in the Atlanta office, explains:
It is essential for property owners to understand their legal responsibilities. Property owners in most states – including in Georgia – have a duty to provide reasonable security measures that adequately protect invitees and their guests from foreseeable harm while on the property. When determining whether a property owner is liable, courts consider whether a property owner knew or should have known about risks based on prior crimes in and around the same location and whether the owner took reasonable security measures to prevent or deter crime from occurring.
As the number of incidents involving gun violence and similar criminal activity has increased at Lenox Square, it is apparent that whatever safety measures implemented have failed to address the problem. Without improved security measures, the present dangers will continue, and shoppers and other visitors to the property will be at risk of physical danger. Lenox Square isn’t the only shopping center facing these security problems. Still, local headlines, news coverage, and criminal incident reports maintained by local police of gun violence put all property owners on notice. The owners and operators of these properties must take the steps necessary to protect those visiting their premises.
Parker Miller, who has developed expertise in negligent security cases, is currently handling numerous major cases in Georgia and other states. For more information relating to these cases or premises liability generally, contact Parker at 800-898-2034 or by email at [email protected].
Sources: Lenox Square, Fox5Atlanta, CBS46 and 11Alive.com
Workplace Chemical Exposure Deaths Increase, Includes Husband And Father Of Clients
The Occupational Safety and Health Administration (OSHA) explains that “[c]hemical hazards and toxic substances pose a wide range of health hazards” to workers. In 2019, 379 workers in the U.S. were fatally exposed to harmful substances, and 59 died after inhaling harmful substances while on the job, according to the Bureau of Labor Statistics (BLS) in its National Census of Fatal Occupational Injuries. The numbers were up from just four years earlier when they were 215 and 45 respectively.
A recent lawsuit filed by Kendall Dunson, a lawyer in our firm’s Personal Injury & Products Liability Section, illustrates the dangers workers face when toxic chemicals are inhaled. Kendall represents the family of Will Delashaw in the case against Daikin American Inc. On July 2, while working at the company’s plant in Decatur, Alabama, Will, 33, and two of his co-workers were hospitalized with a severe lung injury after being exposed to a mysterious chemical. This is despite all three wearing personal protective equipment (PPE) and respirators.
One of the injured workers died on Aug. 10, and Will languished for more than two months before dying from his injuries. If Will had survived, he would have required a lung transplant and medical care for the rest of his life.
To ensure chemical safety in the workplace, OSHA’s Hazard Communication Standard requires that information about chemicals accompanying hazards be provided in an understandable way to workers. The agency sets enforceable permissible exposure limits (PELs) to protect workers from harmful levels of hazardous substances, including airborne concentrations of toxic chemicals in the air. Daikin failed to provide this information as evidenced by the unknown toxic gas Will was exposed to and which caused his severe lung injury and death.
While investigating the incident that led to Will’s death, Kendall and our investigators discovered his case wasn’t an isolated incident. According to OSHA, a Daikin contract worker died in 2019 after being exposed to an unknown chemical while on the job. This was one of the worker deaths included in the BLS report discussed above. Kendall correctly points out that Will did not have to die tragically. Daikin knew or should have known that the danger existed and worked to protect Will and his co-workers better. Kendall is also investigating whether the negligence of the chemical manufacturer or PPE maker may have contributed to the workers’ injuries.
Kendall and other Beasley Allen’s on-the-job injury lawyers have successfully litigated thousands of work-related injury and death claims, including those involving product liability cases. In the current case referred to above, Kendall and his support staff will continue to investigate the tragic death of this husband and father of two. They will expose any wrongdoing or product failures that contributed to Will’s death.
If you have any questions, contact Kendall Dunson at 800-898-2034 or by email at [email protected].
Sources: Occupational Safety and Health Administration and Bureau of Labor Statistics
Father Of Deceased Worker In LyondellBasell Chemical Leak Files Lawsuit
The father of one of the two workers who died following a chemical leak at the LyondellBasell Industries in La Porte on July 27 has filed a lawsuit against the company in Harris County, Texas. The father of deceased worker Shawn Andrew Kuhleman asserts “negligence, gross negligence and wrongful death claims against LyondellBasell Acetyls, LLC, Lyondell Chemical Company and Equistar Chemicals, LP” in the complaint. The lawsuit states:
- Before the deadly incident, LyondellBasell became aware of the leak in the Acetyls Unit and called a company that specializes in sealing and repairing industrial leaks.
- After the company recommended that LyondellBasell have the leak repaired, Lyondell chose not to have the company repair the leak at that time and instead called other contractors.
- According to LyondellBasell, nearly 100,000 pounds of acetic acid was released.
- Shawn was exposed to harmful and toxic chemicals that burned his body internally and externally.
- Kuhleman was overcome by the toxic chemicals and sadly died at the LyondellBasell La Porte Complex as a result of the massive and harmful chemical leak.
LyondellBasell is one of the largest plastics, chemicals and refining companies in the world and owns 18 locations in Texas, according to its website. The company says it sells products in more than 100 countries and is the world’s largest producer of polypropylene compounds and the largest licensor of polyolefin technologies.
The Abraham, Watkins, Nichols, Agosto, Aziz & Strogner law firm, located in Houston, Texas, represents the family in this case. That firm also represents the family of the other worker killed in this incident, Dustin Day, and several other workers who were injured during the chemical leak.
AN UPDATE ON MOTOR VEHICLE LITIGATION
Airbag Class Action Lawsuit Filed Against General Motors, Fiat Chrysler, And Key Safety Systems
Beasley Allen lawyers Dee Miles, Clay Barnett, and Mitch Williams recently filed a class action lawsuit against General Motors (GM), Fiat Chrysler (FCA), and Key Safety Systems (Joyson) over defective airbag inflators. The Joyson-made airbags at issue are equipped with an inflator that suffers from corrosion caused by moisture exposure during the manufacturing process.
The airbags are located in the roof-rails of certain trucks made by GM and the side-curtains of those made by FCA. The following vehicles are involved:
- 2015-2016 GMC Sierra 1500;
- 2015 GMC Sierra 2500/3500;
- 2015-2016 Chevrolet Silverado 1500;
- 2015-2016 Chevrolet Silverado 2500/3500;
- 2015-2019 Dodge Ram 1500;
- 2015-2020 Dodge Ram 2500;
- 2015-2020 Dodge Ram 3500; and
- 2019-2020 Dodge Ram Classic
As a result of the corroded inflators, the Joyson-made airbags fail to perform as they should and could explode spontaneously and spray metal shrapnel into a vehicle’s driver and passenger compartments. This creates a tremendous safety hazard for occupants.
GM, FCA, and Joyson have long known about the defect but failed to disclose or remedy the defect to put profits ahead of safety. Joyson is the successor-in-interest of Takata, the infamous airbag manufacturer whose conduct led to the largest recall in American History.
The plaintiffs are represented by Dee Miles, Clay Barnett, and Mitch Williams of Beasley Allen and lawyers from Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C., Seeger Weiss LLP, and Kessler Topaz Meltzer & Check, LLP. If you have any questions, contact Mitch Williams by phone at 800-898-2034 or by email at [email protected].
The case is Sager v. Key Safety Systems, Inc. et al. (Case No. 21-cv-15867), filed in the District of New Jersey.
Toyota Says Most Suits In Acceleration MDL Are Now Settled
Toyota says it has reached settlements in 549 lawsuits over deaths and injuries stemming from an alleged unintended-acceleration defect in some of its vehicles. This would be settlements for 98% of the suits in multidistrict litigation, attorneys for plaintiffs and the automaker told a California federal court on Oct. 11.
The plaintiffs and defendants, Toyota Motor Corporation and Toyota Motor Sales USA Inc. told U.S. District Judge James V. Selna only four cases remain in the MDL centralized more than 11 years ago by the U.S. Judicial Panel on Multidistrict Litigation. The status report said:
The [intensive settlement process] is continuing to make good progress as the parties attempt to resolve the various personal injury, wrongful death and/or property damage cases pending before this court and in other courts.
Each of the Plaintiffs in the remaining four MDL cases has requested to go through the intensive settlement process, according to the joint status report. A previous update in 2017 said there were a dozen remaining MDL cases, and plaintiffs in four did not want to proceed with the settlement process. From the total number resolved in the recent update, 188 were cases in the MDL and 107 were cases in the Joint Council Coordination Proceedings.
Toyota has also reached settlements to resolve 254 cases outside the MDL and JCCP process, the report said. At the start of October, about 18 plaintiffs with “unresolved matters” requested to join the formal settlement process, with Toyota already obtaining most of the documents needed to move forward.
In 2013, Toyota agreed to pay an estimated $1.1 billion to settle claims from motorists that the alleged acceleration defect devalued their vehicles. The economic loss deal included a proposed class of roughly 23 million customers. Toyota is represented by John P. Hooper of King & Spalding LLP.
The plaintiffs are represented by Elizabeth J. Cabraser of Lieff Cabraser Heimann & Bernstein LLP, Daniel Miles III of Beasley Allen, Mark P. Robinson Jr. and Donald H. Slavik of Robinson Calcagnie Robinson Shapiro Davis Inc.
The case is In re: Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practices and Products Liability Litigation (case number 08:10-ml-02151) in the U.S. District Court for the Central District of California.
Nissan Drivers Get Approval On $278 Million Transmission Defect Settlement
A Tennessee federal judge has given preliminary approval to a $277.7 million settlement to resolve claims that Nissan North America Inc. shipped vehicles with faulty transmissions. In an order, U.S. District Judge William L. Campbell conditionally certified two settlement subclasses, one for drivers of 2014-2018 Nissan Rogues and one for drivers of 2015-2018 Nissan Pathfinders and 2015-2018 Infiniti QX60 vehicles that are affected by the alleged defect. The judge said that amounts to owners or lessees of nearly 2 million vehicles. According to the drivers, led by Teresa Stringer, the settlement’s main benefit to the class — warranty extensions and reimbursements — are worth $277.7 million.
Class members will have the option either to exclude themselves or object to the settlement, but not both. All class members who do not exclude themselves are blocked from beginning, continuing or prosecuting any of the claims that the settlement releases while the settlement is pending. Judge Campbell set a fairness hearing for May 23, 2022, to determine whether the settlement should get final approval.
The class action began as five lawsuits, which were consolidated into Stringer’s action, alleging that Rogue, Pathfinder and Infiniti QX60 vehicles with continuously variable transmissions, or CVTs, are “prone to hesitating, stalling, jerking, lurching, revving, shaking, juddering and failing prematurely.”
In September, the class moved for preliminary approval of the settlement, which does not cap Nissan’s contribution and includes an extension to the vehicles’ warranty — which extends the existing warranty by two years or 24,000 miles — reimbursement for previous repairs and a $1,000 voucher for class members to buy or lease a new vehicle.
The drivers said the reimbursement plan effectively makes the warranty extension retroactive. It will have Nissan fully reimburse transmission repairs to the affected vehicles that were made during the extension at a licensed dealer, or up to $5,000 for repairs made at unaffiliated repair shops.
The drivers are represented by J. Gerard Stranch of Branstetter Stranch & Jennings PLLC, Mark S. Greenstone of Greenstone Law APC, Marc L. Godino of Glancy Prongay & Murray LLP, Stephen R. Basser of Barrack Rodos & Bacine, Lawrence Deutsch of Berger Montague PC, Ryan McDevitt of Keller Rohrback LLP, John G. Emerson of Emerson Firm PLLC and Caroline Ramsey Taylor of Whitfield Bryson LLP.
The case is Stringer et al. v. Nissan of North America Inc. et al. (case number 3:21-cv-00099) in the U.S. District Court for the Middle District of Tennessee.
TOXIC TORT LITIGATION
$8.2 Million Verdict In Fourth 3M Earplug Trial
A jury returned an $8.2 million verdict against 3M in the fourth bellwether trial concerning military members’ claims that they suffered hearing loss and tinnitus because of defects in the design of the company’s earplugs. The jury found in favor of Brandon Adkins, an Army veteran, on strict liability claims for design defect and for failure to warn, negligent failure to warn, fraudulent misrepresentation, and fraudulent concealment. The jurors apportioned 100% of the fault on 3M. This verdict is the third seven-figure verdict against 3M in the ongoing MDL earplug litigation.
The plaintiff served in the Army from 2004 to 2009, including two tours in Afghanistan. He suffers from hearing loss and bilateral tinnitus from 3M’s defective earplugs. Adkins is the sixth service member to put his claims before a jury in four trials in the U.S. District Court for the Northern District of Florida. Previously, a jury awarded three veterans more than $7 million in the first trial, a consolidated trial, and another jury awarded $1.7 million to a veteran in the third trial.
Judge Casey Rodgers oversees the multidistrict litigation and scheduled six more bellwether trials from November to February 2022. In September, Judge Rodgers ordered 1,358 more cases onto the docket and closer to trial. She also issued a case management order to help speed up the pace of the 3M lawsuits to address the “unprecedented backlog” of over 250,000 claims.
The bellwether trials are part of consolidated multidistrict litigation over the 3M Combat Arms version 2 earplugs (CAEv2). The plaintiffs are predominantly current and former members of the military who developed hearing loss and tinnitus from the defective earplugs.
The service members and veterans are represented by a team led by Bryan Aylstock of Aylstock Witkin Kreis & Overholtz, Shelley Hutson of Clark Love & Hutson, and Christopher Seeger of Seeger Weiss LLP.
The case is In re: 3M Combat Arms Earplug Products Liability Litigation (case number 3:19-md-02885) in the U.S. District Court for the Northern District of Florida.
3M To Pay $99 Million To Settle Tennessee River PFAS Claims
3M Co. has agreed to pay about $99 million to settle litigation involving claims that one of its largest manufacturing plants has been discharging hazardous and solid waste containing cancer-linked chemicals (PFAS) into the Tennessee River in Alabama. The agreements will end a suit filed by the environmental group Tennessee Riverkeeper, as well as a state court class action from local residents. It will also end negotiations by 3M with the City of Decatur and Morgan County, where the plant is located.
The Tennessee Riverkeeper sued 3M under the Resource Conservation and Recovery Act in June 2016, claiming the company has disposed of waste containing per- and polyfluoroalkyl substances and other chemicals — byproducts of its “nonstick” carpet cleaning products Stainmaster and Scotchgard — from a manufacturing plant in Decatur on the banks of the Tennessee River, polluting surface water and groundwater.
3M’s discharges of those chemicals, which have no known environmental breakdown mechanism and which studies have shown if absorbed by humans may cause cancer, thyroid disease, high cholesterol and other health issues, reach levels that exceed the U.S. Environmental Protection Agency’s May 2016 health advisories for their presence in drinking water.
The Tennessee Riverkeeper was represented by in-house counsel Mark Martin and William C. Matsikoudis of Matsikoudis & Fanciullo LLC. This case is Tennessee Riverkeeper Inc. v. 3M Co. et al. (case number 5:16-cv-01029) in the U.S. District Court for the Northern District of Alabama, Northeastern Division.
Parties In Zantac MDL Propose Path To 2023 Bellwether Trials
The parties in the multidistrict litigation over alleged links between the heartburn drug Zantac and various cancers have presented a joint plan for narrowing a field of more than 130,000 potential personal injury claimants to serve as plaintiffs in initial bellwether trials targeted for 2023.
Major pharmaceutical brands Sanofi, Pfizer Inc., Boehringer Ingelheim Pharmaceuticals Inc. and GlaxoSmithKline LLC face claims of false advertising, failure to warn and other claims associated with the alleged discovery of the cancer-causing chemical nitrosodimethylamine (NDMA) in the medication.
West Palm Beach, Florida-based U.S. District Judge Robin L. Rosenberg is presiding over the MDL. Early in October, Judge Rosenberg found the makers of the brand-name drugs could not avoid facing claims from a medical monitoring class, which could cover hundreds of thousands of Zantac users who have not been diagnosed with cancer, but are seeking damages related to the costs of screenings and treatments should they be diagnosed in the future.
The bellwether process is limited to personal injury claims from individuals who allege Zantac use caused their cancer. Plaintiffs’ counsel have compiled a registry of more than 130,000 plaintiffs with filed cases and unfiled claimants whose allegations span 10 different types of cancer.
We will write more in the next issue on this matter. Obviously, there is a great deal that will have to be addressed both by the parties and Judge Rosenberg. The trial date of July 17, 2023 should give ample time for all pretrial activities and for the plan for the trials to be developed and carried out.
The case is In re: Zantac (Ranitidine) Products Liability Litigation (case number 9:20-md-02924) in the U.S. District Court for the Southern District of Florida.
The ONGOING Roundup Litigation
There has been a great deal of activity over the past several weeks in the Roundup Litigation. We will update the part of the litigation being handled by our firm in the December issue. There is a great deal happening in the Beasley Allen cases, but nothing that can be discussed at this juncture. We will have more to say later.
Bayer Will Have To Face Investor Suit Over Roundup Litigation
A California federal judge has declined to dismiss a suit against Bayer AG in which investors claim the company downplayed the significance of litigation related to the weedkiller Roundup that it faced after acquiring Monsanto in 2018.
U.S. District Judge Richard Seeborg denied the dismissal motion in its entirety, but noted in his order that some claims put forth by the investors are not “viable” and suggested they retry those theories with an amended complaint. The City Of Grand Rapids General Retirement System and the Michigan city’s Police & Fire Retirement System sued Bayer in July 2020, alleging it downplayed “the significance of the Roundup cancer lawsuits against Monsanto” when it announced its decision to buy the agrochemicals giant in 2018. The two pension funds say the purchase hasn’t benefited the proposed class and led to artificially inflated stock prices.
The investors are represented by Carol V. Gilden, Steven J. Toll, Susan G. Taylor, Joel P. Laitman, Chris Lometti and Benjamin F. Jackson of Cohen Milstein Sellers & Toll PLLC.
The case is Sheet Metal Workers National Pension Fund et al. v. Bayer AG et al. (case number 3:20-cv-04737) in the U.S. District Court for the Northern District of California.
Beasley Allen Roundup Litigation Team
Beasley Allen lawyers currently represent 3,500 clients who have been exposed to Roundup and developed non-Hodgkin’s lymphoma. Our Roundup Litigation Team is willing to answer any questions you might have concerning the litigation. For more information, contact Rhon Jones, who heads up our Toxic Torts Section and is in charge of this litigation. William Sutton, a lawyer in our Toxic Torts Section, is also a member of team. They can be contacted at 800-898-2034 or by email at [email protected] or [email protected].
Class Action Litigation
Update On USFL, Banner Life, And William Penn COI Class Action Settlements
Below are updates on class action settlements reached by our firm working with other law firms in litigation relating to cost of insurance rate increases on universal life insurance policies. The cases involve U.S. Financial Life Insurance Company (USFL), Banner Life, and William Penn as defendants.
Earlier this year, U.S. Financial Life Insurance Co. (USFL) reached a class action settlement valued over $26 million with the named plaintiff in a settlement class consisting of nearly 12,000 policyholders of USFL universal life insurance policies. Judge Matthew W. McFarland of the Southern District of Ohio granted final approval of this settlement and certified a settlement class on Oct. 25, 2021.
Plaintiff’s class action complaint filed in 2017 asserted claims for breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, conversion, and fraudulent misrepresentation, alleging the insurer unjustifiably increased the cost of insurance charges on certain universal life products in 2015.
The settlement agreement reached with USFL provides the class members with several valuable benefits:
- USFL will create a common settlement fund in the amount of $11.5 million. This fun will be distributed to settlement class members, pro rata, based on the proportion of COI charged to each class policy after the 2015 COI rate increases. No settlement class member will receive less than $100.
- The proposed settlement provides that USFL agrees not to impose any COI rate increases on policies of class members for five years.
- USFL agrees not to seek to void, rescind, cancel, have declared void, or otherwise deny coverage or death claims submitted by settlement class members based on any alleged lack of insurable interest or misrepresentations made in connection with the original application process.
- For class members who have not already availed themselves of this right in 2021, USFL provided in-force illustrations to class members upon request and at no cost to the settlement class member until October 1, 2021.
In total, the collective value of the proposed settlement benefits is between $26,143,000 and $29,071,600. This total value is comprised of the $11.5 million Common Settlement Fund and the valuation of the other relief detailed above, reasonably valued between $14,643,000 and $17,571,600, which is supported by formal and informal discovery as well as valuations by plaintiff’s experts.
The Settlement Administrator mailed notice to the last known address of all reasonably identified potential class members on August 2, 2021. Potential class members had 45 days—until September 15, 2021—to submit Requests for Exclusion or file objections to the settlement. No objections were filed by class members and only a few exclusions were declared. The Final Approval Hearing occurred on Oct. 25, 2021, after which the court entered an order approving the settlement and certifying the settlement class for class-wide relief under the settlement.
“We are pleased that Judge McFarland approved the settlement agreement with very good relief and benefits to class policyholders,” said W. Daniel “Dee” Miles, III, head of the Beasley Allen’s Consumer Fraud Section. He served as lead class counsel along with Beasley Allen’s Rachel Minder and Paul Evans. Local counsel for the class were Jeffrey S. Goldenberg and Todd B. Naylor of Goldenberg Schnieder, L.P.A.
Banner Life & William Penn
On May 19, 2020, Maryland Federal District Court Judge Richard D. Bennett approved the $38.2 million settlement with named Plaintiffs and Defendants Banner Life Insurance Co. and William Penn Life Insurance Co. This settlement consisted of more than 10,750 universal life policyholders.
In both the Banner Life and William Penn class actions, named Plaintiffs brought claims for breach of contract and fraud, alleging the companies unfairly increased the cost of insurance charges on certain universal life insurance policies in 2015.
Prior to the entry of Final Approval, only one policyholder objected to the settlement: the 1988 Trust for Allen Children dated 8/8/88 (Allen Trust), alleging that the settlement releases but provides no compensation for the speculative damages the Allen Trust termed “Deficit Account Harm.” Such “harm” was the basis for a separate class action filed by the Allen Trust after the Banner Life/William Penn settlement was announced.
Named plaintiffs, represented by Beasley Allen lawyers Dee Miles, Rachel Minder, and Paul Evans, as well as co-counsel from other firms, successfully argued before the District Court Judge that the settlement was fair and adequate to all class members, and the so-called “Deficit Account Harm” was nothing more than negative policy account value—an aspect known to and considered by plaintiffs, Banner, and William Penn during settlement discussions and in structuring the settlement ultimately reached.
Nonetheless, the Allen Trust appealed the Final Approval Order to the Fourth Circuit Court of Appeals, essentially asking the court to determine whether the district court abused its discretion in approving the Class and the release language, in light of the claims alleged in the underlying actions. The Allen Trust’s Appellant Brief was filed over a year ago on Aug. 12, 2020, and essentially seeks an opinion from the Fourth Circuit that the claims it raised in a separate lawsuit may proceed in its separate litigation without regard to the overlapping factual predicate between the two suits.
On Sept. 25, 2020, named plaintiffs and defendants filed separate response briefs, asking the Fourth Circuit to affirm the district court’s order. Plaintiffs argued that they met their burden to show the settlement was fair, reasonable, adequate, and met all elements of Rule 23—primarily because it sufficiently compensates all class members for harms actually suffered and releases only those claims “arising out of or relating to . . . claims . . . that were or could have been alleged in the Consolidated Actions Complaints based on the same factual predicate . . . .” Defendants further highlighted that the district court’s findings were clearly not erroneous and were based on the fact that the theory of “damages” raised by the Allen Trust was speculative harm and had been considered in the settlement.
The Allen Trust filed its Reply Brief on November 9, 2020. The Parties have since been waiting on an Order from the Fourth Circuit. Settlement benefits have yet to be distributed to class members as the settlement will not become final until appeals are exhausted. The Fourth Circuit has recently tentatively set oral arguments for the appeal during the December 6-10, 2021 session.
We are pleased the USFL settlement was granted final approval and, hopefully, the settlements in the remaining cases mentioned above will be complete soon with final approval in each. If you need more information on any cases of the above, contact Paul Evans or Rachel Minder at 800-898-2034 or by email at [email protected] or [email protected].
Sources: Farris v. U.S. Financial Life Insurance Co., No. 1:17-cv-417 (S.D. Ohio filed June 19, 2017); Dickman v. Banner, No. 1:16-cv-00192-RDB (D. Md. filed Jan. 19, 2016).
Rich v. William Penn Life Insurance Co. of New York, No. 1:17-cv-02026-GLR (D. Md. filed July 20, 2017); 1988 Trust for Allen Children Dated 8/8/88 v. Banner Life Ins. Co., et al., No. 20-1630 (4th Cir.).
Additional Class Action Settlements
There have been several other significant class action settlements that took place during October. We will give a brief summary of each of those settlements.
$92 Million TikTok Privacy Settlement Gets Early Approval
An Illinois federal judge has given his initial approval to a $92 million settlement resolving biometric and other data privacy claims against TikTok and its parent company. U.S. District Judge John Lee found the agreement to be fair despite several objections over its value to class members.
The judge said in his order that the settlement between TikTok and about 89 million of its users sufficiently resolves accusations the short-form video platform unlawfully collected their biometric and other personal data.
Co-lead counsel for the class told Law360 that their case “is one of the largest privacy settlements of all time, and we expect that companies involved in data collection will pay attention.”
Qualifying class members will also be able to file claims in a similar case seeking settlement approval for accusations that the app collected and shared personally identifiable information about minors without parental consent.
The settling plaintiffs are represented by Carlson Lynch LLP, Fegan Scott LLC, Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow PC, Freed Kanner London & Millen LLC, Susman Godfrey LLP, Bottini & Bottini Inc., Hausfeld LLP, Burns Charest LLP and Clifford Law Offices PC.
The case is In re: TikTok Inc. Consumer Privacy Litigation (case number 1:20-cv-04699) in the U.S. District Court for the Northern District of Illinois.
Apple Settles For $95 Million In AppleCare Class-Action Lawsuit
Apple Inc. has agreed to pay $95 million to settle a class-action lawsuit that accused the company of replacing consumers’ products that were covered with AppleCare and AppleCare+ with remanufactured items, as opposed to brand new products or something equivalent. The class-action lawsuit, filed in 2016, included individuals who purchased AppleCare or AppleCare+ either directly or through the iPhone upgrade program on or after July 20, 2012, and received a remanufactured replacement device.
According to Apple’s AppleCare, when a device is defective or needs to be replaced for accidental damage, Apple will “exchange the [device] with a replacement product that is new or equivalent to new in performance and reliability.” Under AppleCare, that “new” device can be new or remanufactured. But the plaintiffs claimed in the lawsuit that their replaced items did not meet AppleCare’s standards as advertised.
The plaintiffs claim that Apple violated the federal Wiretap Act and California privacy law, among other claims.
Sources: FoxBusiness.com and Reuters
Perrigo To Pay $31.9 Million To Settle Tax Suit With Florida Groups
Two Florida-based pension funds leading a class action accusing drugmaker Perrigo of concealing a €1.6 billion ($1.86 billion) tax bill have asked a New York federal court to approve a $31.9 million settlement they reached with the company. The City of Boca Raton General Employees’ Pension Plan and the Palm Bay Police and Firefighters’ Pension Fund led the class.
The dispute involves the company’s 2013 purchase of Ireland-based Elan Corp. PLC, which allowed Perrigo to establish its tax domicile in Ireland. Shortly before the sale, Elan sold its interests in the multiple sclerosis drug Tysabri for $3.2 billion and royalties. The transaction should have been taxed at 33% instead of 12.5%, resulting in additional tax of €1.6 billion, Ireland’s Office of the Revenue Commissioners told the company in an October 2018 audit letter.
Shareholders claim the firm concealed the letter from investors when filing a quarterly report in November 2018 with the U.S. Securities and Exchange Commission, according to court documents. Perrigo didn’t reveal the extent of its liability until an additional regulatory filing in December 2018, causing the company’s share price to plunge 29%, the investors said. Perrigo settled its tax bill in late October with the Irish government for €297 million. Kessler and former Perrigo chief financial officer Ronald L. Winowiecki were also named in the dispute.
The investors are represented by Steven B. Singer, Kyla Grant, Joshua H. Saltzman, Maya Saxena, Joseph E. White III, Lester R. Hooker and Brandon T. Grzandziel of Saxena White PA.
The case is In Re Perrigo Co. PLC Securities Litigation (case number 1:19-cv-00070) in the U.S. District Court for the Southern District of New York.
Patterson Cos. Inc. Will Pay $63 Million To Settle Investors’ Price-Fixing Suit
Patterson Cos. Inc. has agreed to pay $63 million to end investors’ class action in Minnesota federal court accusing the dental supply company of working with competitors to fix prices. The investors’ unopposed request for preliminary approval of the settlement was filed on Oct. 14. If approved, the settlement would rank in the top 10 largest securities class action settlements ever in the District of Minnesota.”
The investors’ suit said Patterson worked with Benco Dental Supply Co. and Henry Schein Inc., which were not named as defendants in the suit, in a scheme to boycott so-called group purchasing organizations, which the suit said are small dental practice groups working together to negotiate lower prices. The investors said that as a result of the scheme, Patterson’s financial situation was inflated and investors were misled about its business situation.
When the Federal Trade Commission (FTC) launched its own complaint against the three companies, the investors said Patterson’s stock took a hit. In that case, the FTC proved Patterson and Benco violated antitrust law as part of the scheme. The claims against Henry Schein were dismissed.
The plaintiffs, which included the Plymouth County Retirement System, the Pembroke Pines Pension Fund for Firefighters and Police Officers, and others said the FTC’s probe into Patterson and others unearthed a host of evidence, such as emails and phone records, that showed the company fixed prices.
In September 2020, U.S. District Judge Michael J. Davis certified a class of more than 1,100 investors who bought Patterson stock between June 2013 and February 2018.
Along with the FTC’s allegations brought in 2018, the distributors have faced a host of cases over similar antitrust allegations. The distributors reached an $80 million settlement in August 2018 with a group of dentists who also alleged a price-fixing conspiracy on dental products.
The investors are represented by Lucas F. Olts and Heather G. Schlesier of Robbins Geller Rudman & Dowd LLP, Maya Saxena, Joseph E. White III, Lester R. Hooker and Steven B. Singer of Saxena White PA, and Garrett D. Blanchfield and Brant D. Penney of Reinhardt Wendorf & Blanchfield.
The case is Plymouth County Retirement System v. Patterson Cos. Inc. et al. (case number 0:18-cv-00871) in the U.S. District Court for the District of Minnesota.
Dignity Health $100 Million ERISA Settlements Is Approved
A California federal judge has granted preliminary approval to a class action settlement he had twice rejected as defective. The settlement requires Dignity Health to pay over $100 million to workers who claim the health system underfunded its pension plan by $1.8 billion via erroneous use of ERISA’s church-plan exemption.
Under the revised settlement, the vesting subclass would receive $950,000 — an increase of $290,000 — and that money would be distributed in proportion to members’ previously accrued benefits under the Dignity Health pension plan. The judge gave his preliminary approval to the settlement agreement and provisionally certified a settlement class and a vesting subclass.
The case, which began in 2013, centered on the use of an ERISA exemption intended for churches and their affiliates. The exemption gives those that qualify the ability to ignore ERISA’s requirements for benefit plans, including its funding rules.
Dignity Health claimed the exemption, saying it was affiliated with the Catholic Church. Its workers, however, argued that the hospital system was not closely enough associated with the church to qualify, but that Dignity used the exemption anyway and then underfunded its plan by more than $1 billion.
The main settlement class consists of more than 91,000 participants and beneficiaries of the plan, and the vesting subclass includes more than 3,200 former participants in the cash balance portion of the plan who terminated employment between April 1, 2013, and March 27, 2019, and who completed at least three but less than five years of vesting service.
The plan participants are represented by Juli E. Farris, Ron Kilgard, Lynn Lincoln Sarko, Christopher Graver, and Matthew M. Gerend of Keller Rohrback LLP, and Karen L. Handorf and Michelle C. Yau of Cohen Milstein Sellers & Toll PLLC.
The vesting subclass is represented by Mark P. Kindall of Izard Kindall & Raabe LLP. Dignity Health, its retirement plan committee and two executives are represented by Barry S. Landsberg and Harvey L. Rochman of Manatt Phelps & Phillips LLP.
The case is Rollins et al. v. Dignity Health et al., case number 3:13-cv-01450, in the U.S. District Court for the Northern District of California.
Novo Nordisk To Pay $100 Million To Settle Investor Class Action
On Sept. 24, 2021, Novo Nordisk announced that it has reached a $100 million settlement in an investor class action alleging the Danish pharmaceutical giant boasted about its finances while concealing a scheme to pay kickbacks to pharmacy benefit managers to get its insulin drugs on stores’ recommended product lists.
The retirement funds filed the suit in 2017, alleging Novo Nordisk executives, such as former CEO Lars Rebien Sørensen, misled investors holding its ADRs. ADRs (American Depository Receipts) enable American investors to purchase stock in foreign corporations that would not otherwise be available on U.S. stock markets. The proposed class would have been U.S. investors who purchased the ADRs between Feb. 3, 2015, and Feb. 2, 2017. The company told investors it would meet modest sales goals and issued glowing financial reports when, in fact, the insulin maker knew the revenue numbers were propped up by a scheme to collude with its competitors to raise prices.
Novo Nordisk is a global healthcare company that derives roughly 80% of its revenue from insulin-based medications and roughly 54% of its revenue from the U.S. insulin market. Insulin sales in the U.S. healthcare market are subject to pressures from Pharmacy Benefit Managers (PBMs) who contract with insurance companies, health plans, and pharmacies to negotiate drug pricing.
The funds claimed Novo Nordisk misled investors about using PBM rebates to bolster sales of its drug Tresiba. The company allegedly paid the rebates to PBMs to ensure that the medicine appeared on drug stores’ lists of recommended products, known as formularies. Since the PBMs do not disclose the manufacturer rebates they retain, the suit claimed they were essentially “kickbacks” that kept Novo Nordisk drugs on the shelf and inflated prices for consumers.
In an amended complaint, investors said the company revealed it had to pay out higher-than-anticipated rebates to PBMs, which the company attributed to an increase in pharmacy marketplace consolidation that bolstered PBMs’ negotiating power, as well as rising competition in the increasingly crowded insulin marketplace.
The case is Lehigh County Employees’ Retirement System v. Novo Nordisk A/S et al. (case number 3:17-cv-00209) in the U.S. District Court for the District of New Jersey.
Our firm is now handling these types of cases. Feel free to contact Dee Miles, James Eubank or Demet Basar at 800-898-2304 or by email at [email protected], [email protected] or [email protected] concerning securities litigation.
Endo Investors Reach $63 Million Settlement In Generics Stock Inflation Suit
Endo International and a class of investors have reached a $63.4 million settlement to resolve claims Endo inflated its stock price by hiking its generic drug prices in tandem with competitors and then lied to investors about how it had increased its profits. In a joint stipulation of settlement filed with the court, the parties said the settlement would be paid entirely by Endo’s insurance carriers and not by any of the defendants themselves or from any of their assets or property.
The investors originally filed suit in November 2017 with claims Endo had colluded with its competitors to simultaneously increase the prices of 13 drugs, while not disclosing to investors the true reasons for the $620 million in profits the company reaped. U.S. District Judge Michael M. Baylson dismissed antitrust claims in 2020, but granted class certification for the rest of the claims in May 2021.
Should the settlement fail to get approval by the court or fails to become effective, both parties will be restored to their respective positions as of Aug. 5, according to the joint filing.
The Bucks County pension fund is represented by Lawrence F. Stengel of Saxton & Stump, Chad Johnson, Noam Mandel, Desiree Cummings, Jonathan Zweig, Daniel S. Drosman, Kevin Lavelle and Sean C. McGuire of Robbins Geller Rudman & Dowd LLP and Joseph J. Khan and Amy M. Fitzpatrick of the Bucks County solicitor’s office. Co-lead plaintiffs Alexandre Pelletier and Nathan Dole are represented by Jeremy A. Lieberman, Michael Grunfeld and Patrick V. Dahlstrom of Pomerantz LLP.
The case is Alexandre Pelletier et al. v. Endo International PLC et al. (case number 2:17-cv-05114) in the U.S. District Court for the Eastern District of Pennsylvania.
$93.5 Million Settlements In Chicken Price-Fixing Case Get Initial Approval
An Illinois federal judge granted early approval on Oct. 15 to three settlements totaling $93.5 million that commercial and institutional indirect purchasers reached with Tyson Foods Inc., Pilgrim’s Pride Corp. and Mar-Jac Poultry Inc. to settle claims they conspired with competitors to fix the price of broiler chicken. U.S. District Judge Thomas Durkin said during a preliminary approval hearing that the settlement is a “significant one,” and said the companies’ willingness to cooperate as the class pursues claims against remaining defendants in the sprawling antitrust litigation has considerable value.
Under the deals, first filed in court in early October, Tyson will pay $42.5 million, Pilgrim’s Pride will pay $44 million, with an additional $1 million for notice and settlement administration, and Mar-Jac will pay roughly $6 million to the indirect purchasers, making nearly $105 million recovered for the indirect purchaser class to date combined with other settlements in the long-running litigation, which dates back to September 2016.
In September, direct purchasers won an initial sign-off to a nearly $8 million settlement with Mar-Jac Poultry and a $3.3 million settlement with Harrison Poultry to resolve their claims. The poultry companies were first sued by private plaintiffs claiming the nation’s largest broiler chicken producers coordinated and limited chicken production with the goal to raise prices and exchanged detailed information about prices, capacity and sales volume through data compiler Agri Stats Inc.
The U.S. Department of Justice also looked into anti-competitive conduct in the broiler-chicken industry and revealed its investigation in 2019, when it obtained a discovery stay from the court overseeing the private litigation. The DOJ’s ongoing probe has resulted in the indictment of four poultry executives last year, including the sitting president and CEO of Pilgrim’s Pride and the president of Claxton Poultry, over allegations they participated in a scheme to rig bids and fix prices for broiler chickens.
Tyson then disclosed its cooperation with the investigation and said it is applying for leniency. The department indicted six more individuals four months later, including former Tyson Foods sales executive Timothy R. Mulrenin and a few individuals connected to Pilgrim’s Pride. The federal enforcers and Pilgrim’s Pride reached a settlement shortly thereafter, specifying that the producer must pay a penalty of more than $110.5 million and cooperate with the investigation.
The indirect purchasers were represented by Daniel E. Gustafson, Daniel C. Hedlund, Michelle J. Looby, Joshua R. Rissman and Brittany N. Resch of Gustafson Gluek PLLC, and Adam J. Zapala, Tamarah P. Prevost and James G. Dallal of Cotchett Pitre & McCarthy LLP.
The MDL is In re: Broiler Chicken Antitrust Litigation (case number 1:16-cv-08637) in the U.S. District Court for the Northern District of Illinois.
PHARMACY BENEFITS MANAGER (PBM) LITIGATION
The Detrimental Impact Of PBM Rebate Walls
Congress directed the Federal Trade Commission (FTC) to report to the Committees on Appropriations of the House and Senate regarding the FTC’s efforts to address what Congress refers to as “an increasingly common anti-competitive behavior potentially distorting the U.S. biopharmaceutical market known as rebate walls.” The head of the FTC, Commissioner Rohit Chopra, recently issued the Report on Rebate Walls, explaining that rebate walls refer to a situation in which “a dominant pharmaceutical manufacturer uses rebate strategies in its contracts with third-party payors to maintain market power, by giving its products preferred status in drug formularies, and to prevent sales of competing products.” These so-called “rebate walls” impact drug spending, patient care, and competition.
Pharmacy Benefit Managers (PBMs) are incentivized to select higher-priced drugs instead of lower-priced drugs for their formularies so they can collect a higher rebate on the drug from pharmaceutical manufacturers. The FTC report explained that “[s]ome industry analysts and academics have observed that rebates can become a ‘trap’ for payers and providers, causing them to make decisions about coverage and utilization for their beneficiaries due to the financial incentives created by the rebate structure.” The official report added that a drug manufacturer may stop paying rebates — or even “claw back” previously paid rebates — if a rival drug is granted formulary access, thus forcing the third-party payer to pay a higher drug price. Therefore, according to the FTC report, if the third-party payer is unable to switch enough patients to the lower-priced rival drug, then granting that drug access on the formulary is not worth losing the original drug rebates. The FTC explained that this “rebate wall” may give payers strong incentives to block patient access to lower-priced medicines, whereas absent rebates, a lower-priced equally effective product, would tend to take sales away from the higher-priced incumbent product. Thus, some rebates are actually operating to increase overall drug spending and are negatively affecting patients’ access to medications.
The report also provided an antitrust analysis, stating antitrust concerns relating to pharmaceutical manufacturers’ rebate practices and “their potential to create or maintain the market power of an incumbent pharmaceutical product.” A number of antitrust suits have already been brought by plaintiffs across the country and can be expected to continue as long as rebates are continued to be allowed to pad the pockets of PBMs and drug manufacturers while costing consumers high drug prices. Additionally, the Acting Chairwoman for the FTC announced the creation of a group to consider rulemaking, including competition rules concerning pharmaceutical industry practices, which could result in more litigation by the FTC.
Contact Dee Miles, Ali Hawthorne, James Eubank, or Rebecca Gilliland, lawyers in our Consumer Fraud & Commercial Litigation Section, if you have any questions about these unlawful practices or our firm’s healthcare litigation 800-898-2034 or by email at [email protected], [email protected], [email protected] or [email protected].
Source: Federal Trade Commission Report on Rebate Walls; and Benefits Pro
THE CONSUMER CORNER
EPA Sets Toxicity Guideline For Newer “Forever Chemicals”
The U.S. Environmental Protection Agency on Oct. 25 said substances originally marketed as newer and safer types of “forever chemicals” could still be a risk to human health. The agency clarified how much exposure is dangerous based on the potential for liver damage and other health-related issues.
We believe a brief review may be helpful. As previously reported, GenX chemicals were created by manufacturers such as The Chemours Co. to replace perfluorooctanoic acid, (PFOA) which is among a family of thousands of chemicals called per- and polyfluoroalkyl substances (PFAS), that are known as “forever chemicals” due to their tendency to linger in the human body and the environment for many years.
The EPA said people exposed to GenX chemicals, which are also PFAS, are at risk of possible health issues as well. The EPA said in a statement on Oct. 25:
Animal studies following oral exposure have shown health effects including on the liver, kidneys, the immune system, development of offspring, and an association with cancer. Based on available information across studies of different sexes, life stages and durations of exposure, the liver appears to be particularly sensitive from oral exposure to GenX chemicals.
The findings were released in the EPA’s human health toxicity assessment for hexafluoropropylene oxide (HFPO) dimer acid and its ammonium salt. These GenX chemicals are a processing aid technology used to make high-performance fluoropolymers without the use of PFOA, the EPA said.
The agency said regulators can use the GenX chemicals’ toxicity assessment and other information to decide whether to act to reduce people’s exposure, such as by setting drinking water standards. The EPA has said it will develop drinking water health advisories for PFAS chemicals that have final EPA toxicity assessments, including for GenX chemicals, in spring 2022.
The EPA said it doesn’t know exactly which commercial products rely on GenX chemicals, but noted they have been found in surface water, groundwater, drinking water, rainwater and air emissions. In general, PFAS are used in firefighting foams, coatings for clothes and furniture, and food contact substances. They can also be used in industrial processes and applications, such as manufacturing other chemicals and products, the EPA said.
The final chronic oral reference dose — the amount a person could ingest safely, orally — for GenX chemicals is 0.000003 mg/kg per day. That limit is much lower than the agency’s 2018 draft assessment, which considered a limit of 0.00008 mg/kg per day.
The EPA’s limit is lower than the current standards for PFOA and perfluorooctane sulfonate (PFOS), the two best known PFAS. But the EPA said in the settlement that it is currently reevaluating those limits, so they could change in the future. EPA Assistant Administrator for Water Radhika Fox said in a statement:
Research establishes a foundation for informed decision-making and it is one of the central strategies of EPA’s PFAS Roadmap. This science-based final assessment marks a critical step in the process of establishing a national drinking water health advisory for GenX chemicals and provides important information to our partners that can be used to protect communities where these chemicals are found.
The agency has already published health assessments for PFOA, PFOS and perfluorobutane sulfonic acid, and related compound potassium perfluorobutane sulfonate.
Melanie Benesh, a lawyer at the Environmental Working Group, said the EPA should do more, saying in a statement:
The EPA should use this toxicity value to require polluters to report all GenX releases, create enforceable limits on GenX emissions, get GenX out of drinking water and require cleanup of GenX at contaminated sites.
HelloFresh Gets Court Approval For Record $14 Million TCPA Settlement
A Massachusetts federal judge has approved a $14 million settlement in a class action accusing HelloFresh of making telemarketing calls to people on the National Do Not Call Registry. This is being called the largest in state history for a lawsuit under the Telephone Consumer Protection Act (TCPA).
The order from U.S. District Judge William G. Young directs the meal-kit delivery service to establish a settlement fund. Individuals who filed a claim as part of the class action will receive at least $89 each.
The lawsuit was filed as a putative class action in late 2019 by former Hello Fresh customers who said they were inundated with telemarketing calls. Although the class action was never certified, Judge Young said the proposed class met “all of the legal requirements for class certification, for settlement purposes only.” The certified class members who qualify for the settlement are U.S. residents who received one or more calls from HelloFresh or one of its vendors from Sept. 5, 2015 to Dec. 31, 2019. There had been 4.8 million class members who were notified, and of those, 100,433 filed timely claims. Only three objected.
Judge Young also awarded service payments of $10,000 for the two named plaintiffs who brought the class action forward. Another seven named plaintiffs received service awards ranging from $2,000 to $5,000. The person who administers the settlement fund will receive $450,000.
Plaintiffs are represented by Anthony I. Paronich of Paronich Law P.C., Samuel J. Strauss of Turke & Strauss LLP, and Stacey Slaughter and Brenda L. Joly of Robins Kaplan LLP.
The case is Murray v. Grocery Delivery E-Services USA Inc. (case number 1:19-cv-12608) in the U.S. District Court for the District of Massachusetts.
CURRENT CASE ACTIVITY AT BEASLEY ALLEN
A New Look At Case Activity At Beasley Allen
Our BeasleyAllen.com website provides all the latest information on all the current case activity at Beasley Allen. The list can be found on our homepage, top navigation, or our Practices page of the website ( BeasleyAllen.com/Practices/). The following are the current case activity listings for the Beasley Allen sections.
- Business Litigation
- Class Actions
- Consumer Protection
- Employment Law
- Medical Devices
- Personal Injury
- Product Liability
- Retirement Plans
- Toxic Exposure
The cases in the categories listed below are handled by lawyers in the appropriate section at Beasley Allen. The list can be found on our homepage, top navigation, or our Cases page of the website (BeasleyAllen.com/recent-cases/).
- Auto Products
- Aviation Accidents
- Benzene in Sunscreen
- Defective Tires
- J&J COVID Vaccine
- Talcum Powder
- Trucking Accidents
Resources to Help Your Law Practice
As I have repeatedly said, all of us at Beasley Allen are honored and privileged to have long been recognized as one of the country’s leading law firms representing only claimants involved in complex civil litigation. Our firm has truly been blessed, and we understand the importance of sharing resources and teaming with peers in our profession. The firm is committed to investing in resources that will help our fellow lawyers in their work. For those looking to work with Beasley Allen or simply seek information that will help their law firm with a case, the following are among our most popular resources. Some of the available resources are set out below.
Beasley Allen sends out a Co-Counsel E-Newsletter, which is specifically tailored with lawyers in mind. It is emailed monthly to subscribers. Co-Counsel provides updates about the different cases the firm is handling, highlights key victories achieved for our clients, and keeps readers informed about the latest resources offered by the firm.
Aviation Litigation & Accident Investigation
Beasley Allen lawyer Mike Andrews discusses the complexities of aviation crash investigation and litigation. The veteran litigator offers an overview to the practitioner of the more glaring and important issues to be aware of early in the litigation based on years of handling aviation cases. He provides basic instruction on investigating an accident, preserving evidence, and insight into legal issues associated with aviation claims while weaving in anecdotal instances of military and civilian crashes.
The Jere Beasley Report
We also consider The Jere Beasley Report to be a service to lawyers and the general public. We provide the Report at no cost monthly, both in print form and online. You can get it online by going to https://www.beasleyallen.com/the-jere-beasley-report/.
You can reach Beasley Allen lawyers in the four sections of our firm by phone toll-free at 800-898-2034 to discuss any cases of interest or to get more information about the resources available to help lawyers in their law practice. To obtain copies of any of our publications, visit our website at beasleyallen.com/publications/.
A large number of safety-related recalls were issued during October. Significant recalls are available on our website, https://www.beasleyallen.com/recalls/. We currently try to put the latest and most important product recalls on our site throughout the month. You are encouraged to contact Shanna Malone, the Executive Editor of the Report, at [email protected] if you have any questions or let her know your thoughts on recalls. We would also like to know if we have missed any significant recalls over the past several weeks.
Ryan Beattie joined Beasley Allen Law Firm in January 2016 as a lawyer in the Mass Torts Section. His practice has concentrated primarily on litigation surrounding the link between talcum powder products and ovarian cancer.
Ryan is part of the litigation team taking talcum powder cases to trial. He has been part of five trials that resulted in verdicts against Johnson & Johnson totaling $725 million. Juries in the five trials Ryan has helped litigate found consumer health care products giant Johnson & Johnson liable for injuries or wrongful death resulting from the use of its talc-containing products, including its Baby Powder and Shower-to-Shower body powder for feminine hygiene. The juries found the company knew of the cancer risks associated with the talc products but failed to warn consumers.
Growing up, Ryan says he always enjoyed helping people and was fascinated by the law from an early age. He could envision himself as a lawyer when watching legal television shows like “Perry Mason” and “Boston Legal” and when reading legal fiction by lawyer-turned-author John Grisham. However, Ryan further explains that two of his family’s friends who are lawyers had a stronger influence on his decision to practice law, and even now, how he practices law. Ralph Chapman, primarily a plaintiff lawyer and Scot Spragins, primarily a defense lawyer, both practice in Mississippi. Ryan had the opportunity in law school to clerk with both of these men he has known for most of his life. He said he has “always been very impressed with their demeanor and the way they handled themselves both in a legal setting and throughout their lives.” He learned a lot about himself and practicing law while clerking in the two firms and his experiences even helped him narrow his focus on the type of law he wanted to practice. Ryan says:
Being involved in litigation and really feeling like you were helping people and making a difference helped show me how a single attorney or a group of attorneys can have a drastic difference on the outcome of countless lives. This has really been reinforced through my work on the talcum powder litigation, as it has ultimately led to Johnson & Johnson removing talc-based baby powder from the market.
The award-winning lawyer has been selected to the Midsouth Super Lawyers “Rising Stars” list since 2019, which recognizes the top up-and-coming lawyers – those who are 40 years old or younger or who have been practicing 10 years or less. Ryan is a member of the Alabama State Bar Young Lawyers Section and the American Association for Justice. After practicing for a few years, Ryan had this to say:
While I love to be in the courtroom, my favorite part of practicing law is feeling that we are really making a difference after we get results for our clients.
Ryan and his wife, Heidi, make their home in Montgomery. They enjoy spending time with their twins, Ryker and Layla, and their three dogs, Max, Bentley and Peyton. They attend St. James United Methodist Church, and Ryan also serves on the Executive Board for the March of Dimes for the State of Alabama. In addition to spending time with his family, Ryan also enjoys golfing, hunting, fishing, sports—especially following the Nebraska Huskers—and anything else outdoors. He is also a member of Ducks Unlimited and Delta Upsilon fraternity.
Ryan described how the firm has grown, even expanding to new office locations in other cities, but he is encouraged that some things have remained consistent. He said that “the firm’s integrity and an overall innate sense of goodness that is led from the top down through faith” has allowed us “to be sure we are on the right side and handling things in a manner in which everyone can be proud.” Ryan says that practicing law over the last couple of years during the pandemic, the firm has continued to experience record success when many firms struggled. He believes that speaks to the close-knit, family type of culture at the firm and how each employee is dedicated to the mission of “helping those who need it most” despite challenges such as needing to work remotely or work from home. The employees remained united in achieving results for our clients.
Ryan is a hard-working lawyer who is dedicated to carrying out the firm’s mission. We are blessed to have Ryan in the firm.
Suzanne Clark serves as a Discovery Counsel for our Mass Torts Section. In that role, she assists with discovery, especially discovery of electronically stored information (ESI). After graduating law school in 2002, Suzanne practiced in the area of commercial litigation, and in 2013 she entered the field of eDiscovery. Since 2017, Suzanne has focused her eDiscovery legal practice on the Plaintiff’s side, serving as Discovery Co-counsel assisting merits counsel with discovery advocacy and evidence management in mass torts litigation. She has also taught eDiscovery at Samford University, Cumberland School of Law, through the fully online Master of Studies in Law program.
Suzanne says: “My favorite part about practicing as discovery counsel is being able to use my skills at managing evidence to support merits counsel so they can have the evidence they need at their fingertips as they advocate for our clients.”
In 2014, Suzanne earned her accreditation as a Certified eDiscovery Specialist (CEDS) and has been a Relativity Review Management Specialist since 2019. That year, she also received her Mass Tort MDL Certificate from the Bolch Judicial Institute at Duke University School of Law. In 2015, she was selected ACEDS Outstanding Local Leader.
Suzanne regularly presents individually and as a panelist for eDiscovery and legal technology-related conferences, seminars and webinars nationwide. Most recently, she spoke about eDiscovery at the ALAJ Virtual Midwinter Conference and was a panelist on “Ethics in E-Discovery” as part of the Jacksonville Bar Association’s Legal Technology Committee CLE. She also was a panelist on the topic, “Leveraging Search During Review” as part of the University of Florida, Levin College of Law, E-Discovery Conference, as well as a panelist at LegalWeek New York, in the “Emerging Technology Session: Modernizing Legal Practices (Automation, Analytics, and Artificial Intelligence).” Additionally, Suzanne contributed to the E-Discovery Institute Judges’ Guide to Discovery, 4th Edition, as co-author for a chapter on “Discovery About Discovery,” to be published soon.
At 13-years-old Suzanne says she witnessed an injustice that left a big impression on her. She spoke to her mother about the situation because she couldn’t see a way to do anything to make it better. Suzanne recalls:
My mother said, “you could become a lawyer, like your grandfather, and then you might be able to do something about it.” So, I decided when I was 13 that I wanted to be an attorney.
Suzanne graduated from the University of Florida Warrington College of Business with a Bachelor of Science in Business Administration (B.S.B.A.) in finance. During undergraduate school, she was a member of the Delta Sigma Pi, co-ed Business Fraternity and University of Florida Lady Gator Water Polo Team. She graduated from the University of Florida Fredric G. Levin College of Law. During law school, Suzanne was Articles Editor of the Florida Journal of Technology Law and Policy, competed in the International Environmental Moot Court Competition, and studied abroad at Universidad de Costa Rica, participating in a joint Environmental Law and Policy program. While studying abroad in Costa Rica, Suzanne took Spanish classes and enjoyed Spanish language immersion while living with a host family. She earned a Pro Bono Certificate during law school after serving as Guardian ad Litem and as a member of Gator Teamchild.
Suzanne is a member of the Florida Bar and the Business Law Section, where she is on the Electronic Discovery and Digital Evidence Committee. Suzanne says she finds it rewarding to volunteer professionally in the eDiscovery industry. She is a member of the Association of Certified eDiscovery Specialists (ACEDS) and serves as the Director-at-Large for ACEDS Jacksonville and previously as President and Vice President of the chapter. She also serves on the Electronic Discovery Reference Model (EDRM) Advisory Council. Suzanne is a member of the Jacksonville Bar Association and is Past Chair of the Legal Technology Committee. Suzanne is also a member of the Jacksonville Women Lawyers Association, where she previously served as a board member.
Suzanne, who says she considers herself a child of the Southeast, was born in Charlotte, North Carolina and grew up in Jacksonville, Florida. She now lives in Florida with her two sons, one in the ninth grade and the younger in the sixth grade, their golden retriever, Dallas, and two cats, Cocoa and Keowee.
Away from the office, Suzanne says she enjoys being involved with her church, her kids’ sports (football, lacrosse and baseball), and watching SEC football (Go Gators!). She and her sons attend Access Church in Saint Johns, Florida, which is affiliated with North Point Community Church in Alpharetta, Georgia. Since 2019, Suzanne has served as a member of the Board of Directors of Creeks Youth Lacrosse, a Sports Board under Creeks Athletic Association in Saint Johns, Florida. The purpose of Creeks Youth Lacrosse is to foster and encourage interest and participation in recreational lacrosse, focusing on the age groups of Kindergarten through Middle School, at all levels of core competencies and skill. Fun, fundamentals and friendship are hallmarks of CYL.
Suzanne expresses great respect for our firm’s commitment to its mission. She says:
The fact that Beasley Allen, as a firm, embraces the Christian faith is very special. The firm’s motto, “helping those who need it most…,” stems from Christian principles and is a mission that aligns with my faith and belief system and that I stand behind. Knowing my colleagues at the firm also upholds this principle is meaningful and sets the firm apart.
Suzanne has a very important position in the Mass Torts Section. She does a tremendous job in her role as Discovery Counsel. We are blessed to have her with the firm in that capacity.
Dylan Martin is a lawyer in the Consumer Fraud & Commercial Litigation Section, where he handles consumer protection class actions, concentrating on vehicle defect class action litigation. Dylan began working for the firm in the same section as a clerical assistant in undergraduate school and later as a law clerk while in law school.
Dylan explains that his aspirations to become a lawyer began when he started working at Beasley Allen in 2015 as a clerical assistant. He says:
I always wanted to be in a career field that would enable me to help people daily, and as an attorney, you are able to help people in such a unique way. I immediately saw the tremendous impact the attorneys at Beasley Allen had on their clients’ lives, and I quickly subscribed to the firm motto of ‘helping those who need it most.
Dylan graduated from Samford University Cumberland School of Law. While in law school, he made the dean’s list, served as Director of Negotiation for the Cumberland Trial Board, and competed as part of Cumberland’s National Negotiation Team. Dylan and his National Negotiation Team partner won the 2020 ABA Regional Competition and were quarter-finalists in the ABA National Negotiation Competition. He won both intra-school negotiation competitions, the 1L Negotiation Competition and the Henry C. Strickland Negotiation Competition, receiving Best Advocate in both. Dylan also served as a member and Associate Editor of External Relations on the American Journal of Trial Advocacy. He also graduated from Huntingdon College, earning a B.A. in political science and a minor in communications. He is currently a member of the Alabama State Bar.
Dylan is married to Mary Frances Martin, a legal assistant for another law firm in Birmingham, Alabama. They have two dogs, a black lab/golden retriever mix named Beau and Heidi, a miniature labradoodle. They also have a ragdoll cat named Mishka. The couple enjoys beach trips with family and friends and going to Auburn Football games. Dylan and Mary Frances attend Holy Spirit Catholic Church.
Dylan is a very good lawyer who has been involved in a good number of important cases. He is dedicated to his work and the clients he helps receive justice. We are fortunate to have Dylan with the firm.
Charles Myrick has been a loyal employee of the firm for 20 years. As Mailroom Clerk, Charles’ responsibilities include distributing a heavy volume of incoming and outgoing mail, including Fed-Ex and UPS, and posting mail for company-wide pickup. He also assists with other tasks at the firm whenever he is needed.
Charles has been married to his wife, Shelia, for 19 years. Shelia worked as a neo-natal nurse in the intensive care unit at Baptist South Hospital and is now retired. Their stepson, Keith, serves in the National Guard and has completed multiple deployments to Afghanistan. They also have a daughter-in-law, Jennifer, a three-year-old granddaughter, Leighton, and two dogs, Emmie and Drake. Charles enjoys attending church at Christ Community Church, where he and his family are faithful members. Charles says he also enjoys baseball, Alabama Football, and his wife’s cooking.
Charles says that his job and the people at Beasley Allen are his favorite thing about working at Beasley Allen. He is a dedicated, valuable employee who works hard and inspires so many people. We are blessed and quite fortunate to have Charles with us.
Clinton Richardson, a lawyer in the firm’s Mass Torts Section, is working on the JUUL litigation and assisting with investigating the viability of other prospective Mass Torts actions. Before joining Beasley Allen, Clinton worked for other law firms, handling cases involving employment litigation defense, federal criminal defense, and 42 USC § 1983 litigation. He also worked for the U.S. Attorney’s office in the Northern District of Alabama, where he handled cases involving the False Claims Act, the Federal Torts Claims Act, and various habeas matters.
Clinton earned his law degree from Faulkner University Thomas Goode Jones School of Law. During law school, he served on the school’s Law Review and the advocate’s board. Clinton competed in moot court competitions and worked as a teaching assistant. He finished his undergraduate work at the University of Alabama, earning a B.A. in criminal justice with a minor in psychology.
The persistent intellectual rigor of the legal profession, driven, in part, by the challenge of developing and articulating arguments to address dynamic fact patterns that implicate complex areas of the law, is why Clinton says he became a lawyer. He says these things are what he continues to enjoy the most about practicing law.
Clinton is a member of the Alabama State Bar and has been recognized for his accomplishments in practice. In 2017, he was selected to the Midsouth Super Lawyers Rising Stars list and was a finalist for the 2014 Montgomery Volunteer Lawyers Program Lawyer of the Year award.
Clinton and his wife Quin have two beautiful daughters and live in Birmingham. Quin is a State Farm Insurance Agent. Clinton and Quin are avid fans of the Alabama Crimson Tide. They are members of The Worship Center Christian Church.
Clinton says he feels blessed to be part of a firm with a stellar reputation for integrity and legal expertise. We are blessed to have him with the firm.
LaTarsha Ellison-Shepherd joined Beasley Allen as an Accounting Clerk in the Toxic Torts Section in 2012. She now works in our Accounting Department as an Accountant II and has been a dedicated, hard-working employee for nine years. In her current role, LaTarsha is responsible for depositing all incoming funds, reviewing bank reconciliations, researching outstanding items, preparing and maintaining accounting spreadsheets.
LaTarsha and her husband, Richard, have been married for 15 years. They have two daughters, Kylie (12 years old) and Morgan (8 years old). LaTarsha attended Auburn University, where she graduated with a bachelor’s degree in International Business with French as the Secondary language. She says her hobbies include reading a good book and having a “girl’s day” with her daughters, where they take trips to the spa, nail salon, Starbucks, and go shopping.
LaTarsha says her favorite thing about working at Beasley Allen is her interaction with every area of the firm. She says those interactions allow her a small glimpse into the firm’s work that helps our clients. LaTarsha is a good, hard-working employee who is a definite asset to the firm. We are fortunate to have LaTarsha with us.
Stephanie Wall began her career with Beasley Allen in 2010 as a Legal Secretary in our Personal Injury & Products Liability Section. After leaving the firm for a short while, Stephanie returned last year and is now a Paralegal in our Toxic Torts Section. Stephanie works on various assignments, including nursing home litigation and the paraquat litigation. She also serves as a trial team member for the ongoing opioid litigation.
Stephanie has been married to her husband, Todd, for 14 years. They have two wonderful sons, Alex and Casey, two beautiful daughters-in-law, Ashley and Kellie, and one beautiful 15-year-old granddaughter, Shelby. They also have two rambunctious boxers, Bentley and Thor, who are loving, spoiled, and certainly a part of their family.
When asked what her favorite thing is about working at Beasley Allen, Stephanie said that it is working alongside all of the staff and lawyers in the firm. Stephanie says she takes pride in all of the great work everyone does each day to help our clients. We are blessed to have Stephanie on the Beasley Allen Team!
From Law To Cutting Horse Competition
Julie Beasley has retired from the active practice of law and is now in the cutting horse business. She is a partner in Double B Ranch located in Montgomery. The following is an article written on Julie and her horse Jenna that appeared in The Montgomery Independent last month.
Julie And Jenna Make A Team ‘Cut’ From A Different Cloth
Many things are important in the sport of cutting but having a well balanced, quick horse with cow smarts is probably at the top of the list. The first thing that Julie Beasley will impress on you when she is talking about her horse, CR Dualin Out Tuff, AKA, Jenna, is that she is blessed to own this one-of-a-kind outstanding athlete.
Jenna was purchased in November of 2018 by Beasley from her breeder, Central Ranch. Out of ARC Catty Dual and by Woody Be Tuff this mare makes an impression right out of the gate. Cutting is an equestrian sport in the western riding style where a horse and rider are judged on their ability to separate a single animal away from a cattle herd and keep it away for a short period of time. However, you need not know a single thing about the sport of cutting to watch this horse work and see that she has an intensity and precision that takes her right to the top.
Jenna has racked up an impressive collection of awards competing across the country. She make a splash first at the NCHA Championship Futurity which can only be entered if it is the horse’s first competition of its career. Jenna was top 10 in the non pro purity and also was a finalist in the limited non pro. Basically says, “That was a huge accomplishment and we won nearly $24,000 combined in both classes. It was an amazing blessing to own such an athletic horse and to make two finals in the 1st and biggest show of her career. It was a dream come true!”
Every Great athlete has a team working with them and Jenna’s team includes not only Beasley but their trainer, Austin Shepherd. Shepherd, who rides professionally, has shown Jenna in open classes and has much success with her at many major events. Shepherd also keeps Jenna in fighting shape and ready to go compete.
What’s next for Julie and Jenna? “When she turns 7 years old next year, I look forward to showing her at weekend events.” Motherhood is also in the cards as Beasley also hopes to get her mare pregnant and have a successful embryo transfer to a recipient mare “so we can have some of her babies and Jenna can keep going and showing.”
Beasley says, “I give God all the glory for any success I have had with showing my horse, Jenna. I thank God every day for creating horses for us to enjoy and to connect our hearts with for such a special relationship.”
FAVORITE BIBLE VERSES
Mary Causey, who serves as a Media Specialist in our firm, sent in her favorite Bible Verse for this issue. She says Psalms 121 has always calmed her anxious heart when she didn’t know what to do. According to Mary, verses 1 and 2 sum it up. She says:
When I find myself spiraling with negative thoughts, God says, “be still, child, and just look to me.” It’s incredible how healthier our mindset is when we put away the toxic thoughts and turn our eyes to Jesus. It’s such a simple practice that can make a difference in how we respond to stressful situations. Let’s practice looking upward, rather than inward!
I lift up my eyes to the mountains – where does my help come from? My help comes from the Lord, the Maker of heaven and earth. Psalms 121
Ben Locklar, a lawyer in our firm, sent in his favorite Bible verse for this issue. He says:
This is the message we have heard from him and declare to you: God is light; in him there is no darkness at all. If we claim to have fellowship with him and yet walk in the darkness, we lie and do not live out the truth. But if we walk in the light, as he is in the light, we have fellowship with one another, and the blood of Jesus, his Son, purifies us from all sin. I John 1:5-7
For the word of God is alive and active. Sharper than any double-edged sword, it penetrates even to dividing soul and spirit, joints and marrow; it judges the thoughts and attitudes of the heart. Nothing in all creation is hidden from God’s sight. Everything is uncovered and laid bare before the eyes of him to whom we must give account. Hebrews 4:12-13
From time-to-time, I try to take inventory of my life. James compares this to looking in the mirror. (James 1:23-24) John tells us that we should not walk in darkness. But how can I know what darkness is? The only way is the word of God. Hebrews tells us that God’s word literally separates my soul and spirit and my joints and marrows. The word reveals to me what truth is and allows me to see more clearly if I am walking and living in line with that word. Nothing is hidden from God, so I might as well lay before him any part of my life that is contrary to His word. He knows anyway! When I do so, “the blood of Jesus, his Son, purifies [me] from all sin.” This is self-examination, confession and repentance. I am so thankful the Lord’s word guides me in this.
OUR MONTHLY REMINDERS
If my people, who are called by my name, will humble themselves and pray and seek my face and turn from their wicked ways, then will I hear from heaven and will forgive their sin and will heal their land.
2 Chron 7:14
All that is necessary for the triumph of evil is that good men do nothing.
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
The opposite of poverty is not wealth; the opposite of poverty is justice.
Bryan Stevenson, 2019
Get in good trouble, necessary trouble, and help redeem the soul of America.
Rep. John Lewis speaking on the Edmund Pettus Bridge in Selma, Alabama, on March 1, 2020
Ours is not the struggle of one day, one week, or one year. Ours is not the struggle of one judicial appointment or presidential term. Ours is the struggle of a lifetime, or maybe even many lifetimes, and each one of us in every generation must do our part.
Rep. John Lewis on movement building in Across That Bridge: A Vision for Change and the Future of America
All of us in America are still dealing with the trials and tribulations brought about by the COVID-19 pandemic. As we know all too well, COVID-19 has been a deadly killer. It is quite disturbing that vaccines made to save lives have become a hot political issue in our country. Nationally, the current death count caused by COVID-19 is now over 800,000 deaths. At least, that is how many deaths have been reported. I suspect the actual number is much higher.
Our political leaders, as well as our spiritual leaders, should be leading the charge to get people vaccinated. Fortunately, some are. Simply put; it’s a matter of “life” or “death” for the very people they lead and serve. Unfortunately, self-interest and personal political gain are top priorities for far too many politicians. There are also the anti-vaccine groups that add fuel to the “political fire.”
Sadly, science and good, solid medical information are being ignored by far too many Americans. Instead, false and misleading statements constantly being put out on social media are believed as gospel truth by many folks. That has had a definite effect resulting in many well-meaning people not getting vaccinated.
We are at a crossroads in the pandemic battle. The battle is far from over. My prayer is that all persons will take the vaccines, follow masking and social distancing requirements, and make America safe again.