9/11 – 20 Years Later And Uncertainty Still Remains
Most all Americans recall that September day 20 years ago when the skies were clear and bright blue. They also likely remember exactly where they were and what they were doing when they saw or heard about the tragic series of plane crashes that brought the U.S. to a temporary standstill – the heartbreaking day we remember as 9/11. Last month marked the 20th anniversary of those attacks on our country, attacks like we never experienced before and thankfully haven’t experienced since that fateful day.
The nation mourned the nearly 3,000 people killed on September 11, 2001, in New York City, Washington, D.C. and Shanksville, Pennsylvania. That day, now known as “9/11,” has had lasting effects that helped shape the trajectory of the nation’s foreign policy and other aspects of life, and though we have moved forward as a country, a great deal of uncertainty remains even two decades later.
The Pew Center for Research collected public opinion data days after the attacks and periodically updated its findings over the last two decades. The research details the heartbreak, loss and psychological trauma the country experienced collectively in the days and weeks immediately following the attacks. The research provides insight into how the country faced the tragedy.
In the beginning, we were united “in a spirit of sadness and patriotism.” We even witnessed a setting aside for a time of political differences. Public trust in the federal government was the highest since the 1960s, although that time of increased confidence was brief. A majority supported wars in Afghanistan and Iraq, uniting behind the goal of fighting the war abroad rather than on our soil. We accepted a “new normal,” ceding some of our freedoms in the name of public safety, but only those deemed necessary and, after much debate, calculated to maintain the balance between liberty and security.
The events of 9/11 have left an indelible mark on the collective U.S. and many on an individual basis. In 2016, 15 years after the 9/11 attacks, 76% of survey participants responded to an open-ended question posed by Pew Research that 9/11 was the top historical event, outranking the Obama election (40%), Tech Revolution (22%), President Kennedy’s assassination (21%) and Vietnam War (20%).
Yet, support declined as the Afghanistan and Iraq wars labored on and the costs mounted (more than 2,000 U.S. service members died and trillions of dollars spent fighting the wars). By August 2021, 54% of U.S. adults said it was time to withdraw. That month, President Joe Biden took the controversial step of pulling the U.S. military out of Afghanistan and officially ending the war.
Members of the military and families of fallen service members were shaken by the withdrawal and how it was handled. Most Americans (71%) believe the Biden Administration failed to handle the exit strategy properly. Additionally, 69% of Americans feel the country “failed in achieving its goals in Afghanistan.” This criticism was underscored by images of people risking their lives to flee the country, even clinging to the outside of military aircraft departing the ground.
While the events of 9/11 will not soon be forgotten, Americans have grown weary of the “War on Terror” sparked by those tragic events. The polarization in politics, social justice issues that have largely gone unaddressed in this country, and the overwhelming struggle to combat COVID, have taken center stage in day-to-day media coverage, all of which have driven public discourse. This shift in Americans’ focus, combined with the withdrawal of U.S. troops from Afghanistan, leaves the country facing many questions and a heightened level of uncertainty, not unlike the days, months and years following September 11, 2001.
We have moved forward, but that doesn’t necessarily mean we have made progress. The one certainty, however, is that we badly need unity of purpose in America and for government at every level, but especially in our nation’s capital, to put the interests of the American people first and foremost. That should be our goal as we look forward in our country. It’s my belief that a large majority of Americans want unity and non-partisan cooperation in our nation’s capital and for the problems facing our country to be solved.
Sources: Pew Center for Research
PERSONAL INJURY & PRODUCTS LIABILITY AT BEASLEYALLEN
Beasley Allen’s Personal Injury And Product Liability Section
Our firm has earned the reputation of being one of the country’s most successful personal injury and product liability law firms. Beasley Allen’s team of lawyers handling personal injury and product liability cases, with exceptional skill, diligence, and success, has built a national reputation for handling cases involving serious injuries and deaths caused by defective products.
The lawyers in the firm’s Personal Injury & Products Liability Section are nationally recognized for their success in representing clients throughout the country who have been seriously harmed, whether in a motor vehicle accident, in an on-the-job accident, by a defective product, or in any other multitude of situations. Our lawyers and support staff understand the life-altering physical, psychological, or emotional impact a serious injury can have on a person and their family. They also recognize the need to prevent it from happening to others. This drives the lawyers and support staff to help those suffering from an incident that should have been prevented.
Some of the personal injury and death cases our lawyers handle the most are related to defective automobiles, motor vehicle accidents, workplace accidents, defective or dangerous machinery, improper safety training and procedures, accidents involving defective consumer products, maritime accidents, aviation accidents, and accidents involving traumatic brain injuries (TBI).
The Beasley Allen lawyers who handle defective product cases aren’t just legal experts; they are fierce advocates of consumer safety and rights. We at Beasley Allen don’t just believe in helping those who need it most; we live by that creed. It’s reflected every day in the service our lawyers and support staff provide to those who have been harmed, maimed, or killed by defective products or the unjust and wrongful actions of others.
In addition to guiding our clients’ lawsuits to a successful and just settlement or jury verdict, many of our lawyers have served or continue to serve in leadership positions at some of the nation’s top consumer advocacy groups and law associations. Through our pursuit of justice, by holding wrongdoers accountable, we can play a role in building a better and safer world for everyone.
Lawyers in our Personal Injury & Products Liability Section are led by Cole Portis, the head of this Section, and Greg Allen, our Lead Products Liability Lawyer. Our team of Personal Injury and Product Liability lawyers include Mike Crow, Graham Esdale, LaBarron Boone, Dana Taunton, Ben Baker, Kendall Dunson, Mike Andrews, Ben Locklar, Chris Glover, who manages our Atlanta office, Parker Miller, Evan Allen, Stephanie Monplaisir, Warner Hornsby, Rob Register, Alyssa Baskam, Ben Keen, Tom Willingham, Mary Leah Miller 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.
BIG TRUCK ACCIDENT LITIGATION
The Shortage Of Truck Drivers Creates Dual Problems In America
Truck drivers are important to our nation’s economy, and good, competent drivers are urgently needed. There has been a shortage of truck drivers for a long time. But because of the coronavirus pandemic, an even larger shortage has been created. Currently, there are fewer drivers available to move our nation’s goods at any given time. This creates economic problems for business owners and people generally. The shortage of trained drivers also creates a safety problem on our nation’s highways.
Even before the effects of the pandemic, the safety problems caused by a shortage of drivers existed. It has been reported that the core reason for America’s truck driver shortage issue before the pandemic has been the low retention of current drivers. Among large truck companies, driver turnover rates for long haul drivers are over 90%. For smaller companies, it’s not much better, 72%. In the long haul sector, drivers are regularly leaving companies or leaving the industry altogether. That puts a terrific burden on those drivers remaining. Longer work hours, lack of sleep, and driver fatigue cause major safety problems.
When you consider that about 72% of all goods in America are shipped by truck, it’s very easy to see that a shortage of trained and competent drivers creates dual problems. The driver shortage affects the economy adversely and creates a serious safety problem on our highways.
Driver turnover makes everybody on our highways, including truck drivers, less safe. Studies have shown that drivers who have more experience and stay with the same company are less likely to get into a crash. In 2019, over 5,000 Americans died on our roadways in fatal crashes involving a large truck, a number that has been steadily rising over the past decade.
Trucking companies have a responsibility to hire competent drivers qualified to operate heavy commercial motor vehicles on our highways and roads, and they must have a proven safety record.
The Code of Federal Regulations Title 49 for Transportation specifies the responsibilities prospective employers have when screening applicant drivers. Section 391.23 (49 CFR § 391.21) provides the investigations and inquiries prospective employers must make of their applicant drivers. These rules include a requirement that motor carriers inquire within 30 days of the date the driver’s employment begins to each state where the driver held or holds a motor vehicle operator’s license.
It’s imperative for companies that operate large trucks on our highways to train the drivers they hire properly. Those drivers must also have gone through background checks and evaluation before being hired.
The retention of competent, well-trained drivers by trucking companies is essential. Once hired and trained, the drivers must be paid well, receive adequate benefits, and not be required to work the road for more than reasonable hours. Their jobs are very important in every respect.
Chris Glover Settles Case Pre-Suit Against Trucking Company
On March 31, 2021, Karen Crisp was driving home from her job in her 2020 Honda CRV. Karen was traveling southbound on Fulton Industrial Blvd. SW in Atlanta, Georgia, approaching the intersection of Westgate Pkwy. SW. At that time, Alex Webster was driving a 2005 Peterbilt 385 tractor-trailer eastbound on Westgate Pkwy. SW, approaching the intersection of Fulton Industrial Blvd. SW.
Mr. Webster was operating this vehicle in the scope of his employment with First Choice Freight, LLC. After Mr. Webster stopped at the stop sign, he proceeded into the median of the intersection, completely blocking the two lanes of southbound traffic on Fulton Industrial Blvd. This is in direct violation of widely known industry standards of care. As Mr. Webster approached the median, Karen did not have enough time to stop her vehicle, and she ran underneath the trailer. As a result of this collision, Karen suffered injuries that led to her death. Mr. Webster was cited for Failure to Yield at Intersection and Homicide by Vehicle Second Degree.
Karen was properly seat belted at the time of the collision. According to the Airbag Control Module download in her vehicle, there were steering inputs at two seconds and again at one second before the crash, indicating Karen tried in some manner to avoid striking the truck. She also began braking two seconds before the collision, indicating she tried to stop her vehicle.
Evidence uncovered during our investigation indicated that the truck was moving at the time of the collision and that Karen tried to swerve her vehicle in an attempt to go around the truck as it was approaching the median to avoid the collision. Industry standards are clear that tractor-trailer drivers should not pull out in front of approaching vehicles unless it can be done so safely.
Karen died as a result of the collision. As her vehicle went underneath the trailer, she received extensive head and facial injuries. Sadly she died from blunt force trauma.
The plaintiff was represented by Chris Glover in our firm’s Atlanta office. Chris was able to settle the wrongful death claim without having to file suit. If you need more information, contact Chris at 800-898-2034 or by email at [email protected].
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 is the Lead Products Liability Lawyer for the firm, and he has handled a number of the major truck cases where a defective product issue was involved. We have a team of experienced lawyers making up the Trucking Litigation Team. In addition to Cole and Greg, the team consists of Mike Crow, LaBarron Boone, Ben Baker, Chris Glover, Parker Miller, Evan Allen and Warner Hornsby.
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.
PRODUCT LIABILITY UPDATE
Firm Settled Jeep Fire Case In Georgia
Our firm settled a vehicle fire case in Gwinnett County, Georgia, that involved the death of Erica Scannavino. On July 29, 2017, Erica was driving home when she was involved in an accident while driving her 1996 Jeep Cherokee. Erica was stopped, waiting to turn left onto her street, when a 2011 Volkswagen Jetta, operated by Kareem Fakih, ran into the rear of the Scannavino vehicle. The right front of the Jetta collided with the left rear of the Jeep, causing the Jeep to roll down the shoulder of the roadway. The jeep came to a rest on the passenger side of the vehicle and caught on fire. The Jeep became engulfed in flames, and Erica was unable to exit the vehicle. She died as a result of the fire.
Scene witnesses were shocked that the vehicle caught fire, describing the accident as a minor impact. None of them expected the vehicle to burst into flames. There was no intrusion into the occupant compartment, and Erica would have lived had the vehicle not caught fire and burned. Mr. Fakih was uninjured, and he even attempted to help get Erica out of the vehicle.
The 1996 Jeep Cherokee was equipped with a gas tank mounted in a known crush zone behind the vehicle’s rear axle. This was an area where the automaker knew it could easily be crushed in a rear impact. Chrysler knew of the dangers of locating a gas tank in that crush zone and knew that foreseeable rear impacts with that gas tank location were highly dangerous. Chrysler also knew of the dangers of using certain trailer hitches that may contribute to rupture the 1996 Jeep Cherokee gas tank.
The gas tank on the subject 1996 Jeep Cherokee was totally unprotected from foreseeable rear impacts. Chrysler used the same or a substantially similar gas tank design on particular Jeep Grand Cherokee and Jeep Liberty vehicles. The vehicle tank was placed in a dangerous location behind the rear axle, subjecting it to failure in foreseeable rear collisions.
At the time of the accident, the Scannavino vehicle was equipped with a Reese Towpower Multi-Fit Receiver manufactured by Horizon Global Corporation. As the vehicle was hit, the trailer hitch crushed into the gas tank and punctured it, exacerbating the deformation of the gas tank. Chrysler was aware of the dangers of using the subject Reese trailer hitch with a gas tank mounted behind the rear axle.
Chrysler’s own internal documents going back to the 1960s and 1970s cleary prove that Chrysler knew its vehicles needed to be designed to move the gas tank away from the rear to a “midship” location – ahead of the rear axle and inside the frame rails – to “protect” the gas tank in a crash. The automaker knew that a midship gas tank location was much safer than a rear gas tank location. The Jeep Cherokee was designed in the late 1970s and early 1980s by American Motors Corporation. Chrysler took over the Jeep line and made no safety design improvements to the Jeep Cherokee fuel system through 2001. Despite Dodge and other Chrysler lines moving away from aft-mounted fuel tanks, Jeep continued with the designs. The aft-mounted designs violated Chrysler’s own design guidelines.
In fact, in 2005, Chrysler moved the gas tank away from the rear of the Jeep Grand Cherokee to the much safer midship location. This was only done after the federal government made it clear that the rear impact fuel standards would be upgraded, and Chrysler could not pass the new test with these aft axle fuel tanks. Even then, Jeep was forced to move the tank forward of the axle after Mercedes purchased Chrysler and forced the company to make the safe decision. Chrysler knew of the danger associated with gas tanks mounted behind the rear axle when it warned through the recall of certain Jeep Grand Cherokee and Jeep Liberty vehicles but did not warn through the recall of the 1996 Jeep Cherokee despite it also having a gas tank mounted behind the rear axle.
Chrysler knew of the danger associated with using certain trailer hitches when it warned its service providers and customers to be on the lookout for trailer hitches that may puncture the gas tanks in certain Jeep Grand Cherokee and Jeep Liberty vehicles. Chrysler did not warn its service providers and customers to be on the lookout for trailer hitches that may puncture the gas tanks in the 1996 Jeep Cherokee.
Perhaps the biggest concern with the trailer hitch is its attachment to the vehicle. Chrysler does not provide sufficient attachment space to the already flimsy unibody frame. Chrysler addresses this problem on the Jeep Cherokee Original Equipment Manufacturer (OEM) trailer hitch by beefing up the frame with a full-length backing plate. This plate is the full length of the trailer hitch attachment point and, in essence, makes the frame thicker at that point. Unlike Chrysler, Horizon uses much smaller square backing plates. The problem with the smaller plates is that they cannot keep the trailer hitch attached to the frame during the impact. This failure allowed the trailer hitch to come free from the frame and greatly increased the intrusion of the trailer hitch into the fuel tank.
The case was set for trial, and the Scannavino family settled with Chrysler and the trailer hitch manufacturer for confidential amounts. This was a case that the defendants knew they could never let a judge and jury see how truly bad the defendants’ conduct, and especially that of Chrysler, had been. The defendants knew they had to settle, and they did. Plaintiffs were represented in this case by Chris Glover, Greg Allen, and Alyssa Baskam from our firm. They did a tremendous job in preparing this case for a trial in the circuit court of Gwinnett County, Georgia.
Litigating Tire Defect Cases
Tires are one of the most important components of a vehicle because they are the only point of contact between the vehicle and the roadway, making them critical to safe handling, stability and braking. When a tire failure such as a tread separation or blowout occurs, such a failure can often result in the driver losing control of the vehicle, which in turn can result in the vehicle rolling over, veering into oncoming traffic, leaving the roadway, or some other type of severe crash. As such, a tire failure can often result in catastrophic injuries or death. Being able to recognize early on that your client’s injuries may have been caused by a tire failure is extremely important.
The most common types of tire failures are blowouts and tread separations. A tire blowout is the sudden loss of air pressure in a vehicle’s tire, often causing the tire to break apart and away from the vehicle. In many instances, a blowout can sound and even look like an explosion. A tread separation, often called detreading, is a tire failure that occurs when a tire’s treads detach from the steel belts underpinning them and the casing of the body or carcass of the tire. People often refer to a tread separation as a blowout, but they are not the same failure. However, a tread separation can lead to a blowout from damage following the separation.
Tire blowouts and tread separations can be caused by a design defect or a defect in the manufacturing process. Some typical design defects include, but are not limited to, the failure to include belt wedge or nylon cap plies. A belt wedge is a rubber component placed between the two steel belts to prevent or reduce the ability of the belts to rub against each other, causing the belts to ultimately detach and reduce the durability of the tire shoulder area.
Another alternative design used to reduce belt edge failures is a nylon cap ply made of nylon or other similar material and placed along the tire’s shoulders to increase belt edge integrity and durability. It is possible to include both cap plies and belt wedges to reduce the stress, strain, and heat generated at the belt edges and increase the durability of tire belt edges; however, despite this usefulness, steel-belted radial tires are still sold in the U.S. without this feature.
Other design defects include inadequate rubber compounding, improper curing temperature (the process of binding the rubber components together), and poor inner liner design. This allows the compressed air that inflates the tire to escape and accelerate the degradation of the tire and cause a premature failure.
Manufacturing defects can also cause tire failures. The term “manufacturing defect” typically refers to why a tire does not meet the design or manufacturing specifications of the tire manufacturer. Unlike design defects that would apply to the entire line of tires, manufacturing defects typically are associated with one or a few specific tires. They can be related to human errors, poor quality materials, and/or a lack of quality control in the manufacturing process. Manufacturing defects include liner pattern marks, trapped air, poor belt alignment, premature oxidation, inner liner splicing, porosity indicating inadequate bonding of materials, or contamination of the tire by foreign materials – all of which can result in a catastrophic tire failure.
For a defective tire case to be successful, proper investigation and evidence collection must be done as soon as possible following a crash. It is necessary to have possession of the tire for an expert to evaluate to establish a design or manufacturing defect in a specific tire. It is important to inspect the scene of the wreck to determine if there is any physical tread or tread belt evidence at the scene, as this too can be critical in proving not only that there was a defect but determining the type of defect and failure.
You will also want to locate and obtain the vehicle and preserve it for the case duration. Quite often, you will be able to purchase the vehicle as scrap from the insurance company. Preserving the vehicle is important because, in most catastrophic tread separation tire failure events, there will be claims by the tire manufacturer that the tire failure event was controllable and that the overreaction of the driver was the proximate cause of the wreck. Therefore, vehicle handling and movements during the tread separation will become relevant. Retaining an accident reconstructionist who can inspect the scene of the event, the tire and the vehicle, will be able to help you determine important factors such as the vehicle’s movements before, during and after the tire failure; the vehicle’s speeds before, during and after the tread separation; and the vehicle’s response to the tread separation event.
In addition to retaining an accident reconstructionist, you will also need to retain an expert in the field of tire design and manufacturing defects, injury causation and biomechanical issues, occupant kinematics, as well as an expert in the field of vehicle handling and stability who can explain why the driver lost control during the tire failure event. You may also need to buy multiple exemplar products for testing. The costs of proving a tire defect case can quickly rise to $250,000 and up to $500,000.
The lawyers in Beasley Allen’s Personal Injury & Products Liability Section have the experience and resources required to investigate, prepare, and prove a tire defect case at trial. If you have a client who has been catastrophically injured or killed in a wreck involving a tire failure, contact Cole Portis, Ben Baker, LaBarron Boone or Tom Willingham at 800-898-2304 or by email at [email protected], [email protected], [email protected], or [email protected].
30 Million More Vehicles Being Investigated In Huge Takata Airbag Recall
The National Highway Traffic Safety Administration (NHTSA) has confirmed that it has opened an investigation into another 30 million vehicles that could be on the highways with possibly defective airbag inflators made by the Takata Corporation. The vehicles were described as “ticking time bombs.” The concern is that the inflators can explode and, in rare instances, send deadly metal fragments flying, with deadly consequences.
The worldwide Takata recalls taken together were already the largest safety recall in automotive history, involving more than 67 million Takata airbag inflators recalled in the United States and more than 100 million worldwide. Millions of those vehicles are still on the highways with potentially dangerous airbags.
The defective inflators have killed at least 28 people worldwide, including 19 in the United States, and have caused more than 400 injuries. In the U.S., 16 of those deaths were in Honda vehicles, two in Fords and one in a BMW. Overseas, nine other Honda deaths occurred in Malaysia, Brazil and Mexico. NHTSA said the additional 30 million vehicles were manufactured by two dozen automakers between 2001 and 2019 — and comprise 1,384 different vehicle models in all. They include vehicles from Honda, Ford, Toyota, General Motors, Nissan, Subaru, Tesla, Ferrari, Mazda, Daimler, BMW, Chrysler, Porsche, Jaguar, Land Rover and others.
This new investigation is an engineering analysis — meaning that this new round of vehicles is not yet part of the greater recall. NHTSA said that “while no present safety risk has been identified, further work is needed to evaluate the future risk of non-recalled” inflators. The agency says it “is not aware at this time of any ruptures, injuries or fatalities due to propellant degradation in these inflators, and the driving public does not need to take any action.”
The inflators in the new investigation contain a desiccant or drying agent that is supposed to keep moisture from degrading the device. In the previous Takata recalls, the propellant designed to inflate the airbag in an accident could break down after long-term exposure to large fluctuations in temperature and humidity. Those airbags did not contain a drying agent.
John Deere Recalls Tractor And Cites Concerns Over Wheel Falling Off
The U.S. Consumer Product Safety Commission (CPSC) has issued a recall for about 200 John Deere compact utility tractor units. According to the recall, the rear wheel spacer bolts were torqued incorrectly during manufacturing which could cause the wheel to fall off during operation. The tractor could potentially roll over and injure the operator.
The models recalled will affect the John Deere 4M and 4R compact utility tractor with model numbers 4044M, 4044R, 4052M, 4052R, 4066M, or 4066R. The model number can be found printed on the hood, located on the front right side of the machine near the engine and begins with 1LV. The compact utility tractors come in the classic green and yellow color scheme, along with both open operator station and cab configurations. It’s stated further in the recall:
Consumers should immediately stop using the recalled tractors and contact an authorized John Deere dealer for a free inspection and repair of the wheel mounting bolts. John Deere is contacting all known purchasers directly.
So far, the company has not reported any injuries. The affected models were sold nationwide from December 2020 through June 2021 at John Deere dealers. A full list of serial numbers included in the recall is available at deere.com.
AN UPDATE ON MOTOR VEHICLE LITIGATION
U.S Solicitor General Supports Counties Claims Against VW
The federal government told the U.S. Supreme Court that the Clean Air Act (CAA) does not bar two counties from pursuing claims that Volkswagen owes them additional penalties for flouting local anti-tampering laws in connection with its 2015 “clean diesel” emissions-cheating scandal.
In response to the justices’ request for the U.S. government to weigh in on the dispute, acting U.S. Solicitor General Brian H. Fletcher said in an amicus brief on Sept. 26 that while the CAA expressly preempts state and local laws enforcing “any standard relating to the control of emissions from new motor vehicles,” it doesn’t bar states and localities from imposing civil penalties for post-sale changes reducing the effectiveness of emission-control systems in vehicles that are already in use.
Ultimately, nothing in the CAA suggests there was any congressional intent to broadly displace state and local anti-tampering laws, and Volkswagen’s largely hypothetical fears that enforcing those laws against car manufacturers would interfere with the U.S. Environmental Protection Agency’s regulation of manufacturers’ post-sale conduct haven’t come to pass, according to Fletcher, who is serving as acting U.S. solicitor general while Elizabeth Prelogar awaits Senate confirmation as President Joe Biden’s pick for the role. Fletcher said in the government’s amicus brief:
Petitioners speculate that states or municipalities might seek to hold manufacturers liable for software updates that EPA has ordered or approved. But because EPA never directed or approved the updates at issue here, this case would be an unsuitable vehicle for clarifying the preemption rules that would apply in the circumstances that petitioners posit. The petition for a writ of certiorari should be denied.
Contrary to Volkswagen’s arguments, the government said there is no special preemption rule for manufacturers. That’s very important. The government said further on that point:
Neither Section 209(a) itself, nor any other Clean Air Act provision, suggests that the express-preemption inquiry — i.e. the determination whether a state or local anti-tampering rule ‘relates to the control of emissions from new motor vehicles’ — turns on the identity of the alleged tamperer. The act’s own anti-tampering provision groups all potential violators together, making it unlawful for ‘any person’ to tamper with an emission-control system. There is no textual basis for reading Section 209(a) to confer a broad, manufacturer-specific immunity from otherwise valid state and local anti-tampering laws.
The federal government’s take on the CAA preemption should definitely impact whether the Supreme Court grants a certiorari petition from Volkswagen Group of America Inc. and Audi of America LLC. The companies are challenging the Ninth Circuit’s June 2020 decision reviving lawsuits from Salt Lake County, Utah, and our client, the Environmental Protection Commission of Hillsborough County, Florida, over post-sale updates made to vehicles’ emissions controls. Porsche Cars North America Inc. and auto parts maker Robert Bosch LLC, co-defendants in the underlying litigation, also signed on to the certiorari petition.
Volkswagen contends that the Ninth Circuit misinterpreted Section 209(a) of the CAA to draw a bright line between “new” and “used” cars to mean that preemption ends at the point of initial sale. In the process, the Ninth Circuit trampled on the CAA’s uniform federal framework, exposing global automakers to potentially billions in pile-on penalties and staggering liability from a patchwork of conflicting state and local regulations, according to Volkswagen.
The Ninth Circuit panel agreed with U.S. District Judge Charles Breyer’s 2018 finding that the CAA expressly preempted the counties’ claims based on the factory-installed software in new vehicles, but said the judge incorrectly held that the CAA impliedly preempted claims that the automakers tampered with the emissions-control devices after vehicles had been sold. So the panel revived the counties’ claims related to post-sale updates to cars.
Salt Lake and Hillsborough counties have stated in court documents that they are well within their authority to enforce their air pollution control laws and that Volkswagen’s fears of regulatory turmoil are unfounded and overblown. The counties, in a March 18 opposition brief, explained that they aren’t even trying to penalize anything the EPA approved — as Volkswagen keeps arguing — because Volkswagen “deceive[d] the EPA and evaded the very regulatory approval process it invokes.”
In fact, the counties argued that the Ninth Circuit’s actual holding is “unremarkable legally and practically,” and represents a “straightforward application” of well-settled preemption principles to Volkswagen’s “unexpected and aberrant conduct.”
Now that the federal government has weighed in with its position on the CAA preemption issue, lawyers for the counties said on Sept. 27 that they are confident that Volkswagen’s petition will be denied. A spokesperson for Stris & Maher LLP, the counties’ appellate counsel, said in a statement:
We’re pleased that the government viewed Volkswagen’s petition our way. The Ninth Circuit’s decision was correct and persuasive, and our clients’ lawsuits are fully consistent with the Clean Air Act’s goal of reducing air pollution. We’re hopeful that the court will agree and deny the petition.
Dee Miles from our firm, who is lead trial counsel in the case for Hillsborough County, is confident the Ninth Circuit was precisely correct when it ruled that the counties and municipalities are not preempted by the Clean Air Act with regard to how local environmental laws and ordinances apply to post-sale vehicles. Dee said further:
The VW “cheat devices” were egregious corporate misconduct that caused harm to the Tampa area and is a good example of why local governments should have their own particular laws and ordinances to protect their local environment. We don’t anticipate certiorari being granted in these cases, and the solicitor general for the United States has now agreed with our position that certiorari is due to be denied in this case. We welcome the support and expect our high court will act accordingly. The Hillsborough County EPC is anxious to get to trial to present our case to a jury.
Paul M. Simmons of Dewsnup King Olsen Worel Havas Mortensen, a lawyer for Salt Lake County, said in a statement that the county “was pleased to see the EPA uphold, as did the Ninth Circuit, the system of ‘cooperative federalism’ that Congress put in place when it enacted the Clean Air Act.” He added:
The act makes states, local governments, and the federal government ‘partners in the struggle against air pollution. The act expressly allows state and local governments to impose civil penalties for post-sale tampering with emission-control systems of vehicles driven on their roads when that tampering reduces the systems’ effectiveness and increases air pollution. This issue is particularly significant to Salt Lake County, which has had some of the worst air pollution in the country. As the EPA correctly concluded, there is simply no reason for the Supreme Court to review the Ninth Circuit’s decision, which allows Salt Lake and Hillsborough counties’ claims based on post-sale tampering to go forward.
Volkswagen, meanwhile, has another certiorari petition pending before the U.S. Supreme Court that similarly seeks clarification on the CAA preemption question. Volkswagen recently asked the justices to review an Ohio Supreme Court ruling clearing the way for the Buckeye State to sue Volkswagen for state anti-tampering law violations related to its 2015 “clean diesel” emissions-cheating scandal.
The lawsuits all stem from the EPA’s investigation into Volkswagen’s 2015 admission that it rigged more than 500,000 “clean diesel” vehicles in the U.S. with emissions-cheating software known as “defeat devices.” Volkswagen has accused the states and counties of “piggybacking” on the federal probe to demand pile-on penalties for conduct the EPA already redressed nationwide. But the counties have argued that in enacting the CAA, Congress never said it intended for only the EPA to regulate “model-wide” changes to in-use vehicles, according to court documents.
Dee Miles, Lance Gould, Clay Barnett, Ali Hawthorne, Lauren Miles, Tyner Helms and Mitch Williams are working on this case along with local counsel and are also handling several other “defeat device” cases.
We will continue to update our readers on the progress of this appeal in the United States Supreme Court.
Graco Must Face Suit Involving Safety Of Car Booster Seats
A suit filed by consumers who allege that Graco Inc. improperly marketed its car booster seats can move forward with most of a consolidated proposed class action because the company made express representations about the effectiveness of the seats. This was the ruling by a Georgia federal judge. The proposed class alleged that representations by Graco about how the seats work in side-impact collisions at least partly informed their purchasing decisions. U.S. District Judge Leigh Martin May said is there enough evidence to let the case move forward at this stage of the litigation.
Atlanta-based Graco labeled, marketed and sold its booster seats as though they were safe for children as small as 30 pounds and as young as 3 years old and suggested that they met federal standards and offered more safety in side-impact collisions, the judge wrote. The court rejected argument from Graco that it wasn’t enough for consumers to claim they would have either purchased another type of seat or paid less for the Graco seat if they’d known that the marketing campaign wasn’t true. It can reasonably be inferred that the sales pitch played a role in their purchasing decisions, Judge May said.
Judge May did dismiss a request for an injunction to stop Graco from marketing the booster seats as safe from side-impact collisions. Judge May said that none of the plaintiffs said they would buy the seat in the future, and their lack of intent to make future purchases deprives them of standing to pursue the injunction. Instead, the plaintiffs only claim that they wouldn’t have bought the booster seat or would have paid less for them if they had known how the seat actually performed, Judge May said.
The 21 plaintiffs from 15 different states alleged they were misled by Graco’s assertions that its booster seats are safe for children weighing as little as 30 pounds, and that they are “side-impact tested.” Graco is arguing in its defense that 30 pounds is the regulatory minimum standard for booster seats, and that there is no federal requirement for side-impact testing and nothing wrong with its own testing.
Cases were brought nationwide against Graco in the first half of 2020 and consolidated in Georgia, where the company is based. The plaintiffs are hoping to get class certification, with sub-classes for plaintiffs in different states. Graco’s parent company, Newell Brands DTC Inc., was dismissed as a defendant in the case in December. Graco faces claims of violating the federal Magnuson–Moss Warranty Act, fraud, unjust enrichment, negligent misrepresentation, breach of express and implied warranties, violating state fair trade and business acts and false advertising.
The case is Carder v. Graco Children’s Products Inc. et al. (case number 2:20-cv-00137) in the U.S. District Court for the Northern District of Georgia. The plaintiffs are represented by a large number of law firms.
Volkswagen Reaches $42 Million Settlement In Takata Air Bag MDL
Volkswagen has agreed to a $42 million settlement to resolve consumer lawsuits over the use of defective Takata Corp. air bag inflators in its vehicles. A motion was filed by the plaintiffs seeking preliminary approval of the agreement from a Miami federal court.
The proposed settlement with Volkswagen Group of America Inc., Audi of America LLC and their affiliates covers 1.35 million vehicles. The agreement is modeled on settlements previously approved with seven other automakers in the widespread multidistrict litigation. Consumers are also pursuing claims against General Motors, Mercedes-Benz and Stellantis. The settlement will provide relief to more than a million class members, according to plaintiffs’ lead counsel Peter Prieto of Podhurst Orseck, who said in a statement:
This agreement will not only expand awareness of the Takata recalls and improve driver safety by accelerating the removal of defective airbags from our roads but will provide compensation to affected VW and Audi consumers.
The value of the agreement is based on Volkswagen paying $33.6 million in cash into a nonreversionary common fund over a four-year period, with the remaining 20% coming in the form of its funding an “enhanced rental car program.”
The terms of the settlement include:
- The funds will go in part toward an outreach program overseen by an independent settlement special administrator, which will expand upon Volkswagen and Audi’s existing outreach efforts with the goal of increasing recall completion rates among the estimated hundreds of thousands of class members who remain exposed to the danger of rupturing inflators.
- The program will involve innovative outreach methods, including in-person visits, social media, telephone calls, email and text messaging as well as multimedia ad campaigns.
- The settlement will also provide reimbursement for “uncapped but reasonable” out-of-pocket claims, such as for taxi fare and towing expenses as well as lost wages and child-care costs.
- Because the funds will not return to Volkswagen, class members can also apply to receive residual payments of up to $250 from funds remaining at the end of each program year.
- Class members will be eligible to receive up to $500 in residual payments over the four-year settlement term. Volkswagen will also provide free rental or loaner vehicles to class members who request one while awaiting repair of their recalled vehicles.
- The automaker will also provide prospective coverage for repairs and adjustments of current and replacement inflators, including parts and labor, for an extended period.
The MDL arose from consumer suits, first filed in 2014, that alleged the cheap but volatile ammonium nitrate that inflates air bags made by Takata can misfire, especially in humid conditions, blasting chemicals and metal fragments at vehicle occupants. Takata’s air bag inflators have been linked to at least 11 deaths in the U.S., and the company has faced massive global recalls.
Takata pled guilty to wire fraud in January 2017. It agreed to pay $1 billion in fines and restitution and acknowledged that it ran a scheme to use false reports and other misrepresentations to convince automakers to buy air bag systems that contained faulty, inferior or otherwise defective inflators. Takata’s main U.S. subsidiary, TK Holdings Inc., filed for bankruptcy in Delaware and the parent company filed for bankruptcy in Japan in June 2017.
Ford became the seventh automaker to reach a settlement in the MDL in September 2018, agreeing to pay $300 million. Honda agreed to a $605 million deal in September 2017, Nissan settled for $98 million in August 2017, and Toyota, Subaru, Mazda and BMW agreed to pay a combined $553.6 million in May 2017. The claims against Volkswagen, Mercedes-Benz, GM and Stellantis, which was previously known as FCA, were filed in 2018.
In 2019, U.S. District Judge Federico A. Moreno of the Southern District of Florida dismissed claims against Volkswagen and Audi’s Germany-based parent companies, Volkswagen AG and Audi AG, as well as Mercedes parent Daimler AG, for lack of personal jurisdiction.
The parties are in the midst of expert discovery with GM, Mercedes and Stellantis, which should be completed in the next six months. The consumers will then file motions for class certification.
The class is represented by Peter Prieto, Aaron S. Podhurst, Stephen F. Rosenthal, John Gravante, Matthew P. Weinshall and Alissa Del Riego of Podhurst Orseck PA. Parts of the suit are being handled by Boies Schiller Flexner LLP, Colson Hicks Eidson, Power Rogers & Smith LLP, Lieff Cabraser Heimann & Bernstein LLP, Carella Byrne Cecchi Olstein Brody & Agnello PC and Baron & Budd PC.
The MDL is In re: Takata Airbag Products Liability Litigation (case number 1:15-md-02599) in the U.S. District Court for the Southern District of Florida.
Nissan Drivers Seek Approval OF $277 Million Transmission Settlement
A proposed class of drivers have asked a Tennessee federal court to approve a settlement that would resolve claims that Nissan of North America Inc. shipped Rogue and Pathfinder vehicles with defective transmissions. The drivers estimate the settlement is worth more than $277 million. In a motion for preliminary approval, the drivers, led by named plaintiff Teresa Stringer, said the proposal, which does not cap Nissan’s contribution, includes an extension to the vehicles’ warranty, reimbursement for previous repairs and a $1,000 voucher for class members to buy or lease a new vehicle.
According to the motion, the plaintiffs’ valuation expert, Lee M. Bowron, an actuary who specializes in pricing and valuing extended service contracts and warranty extensions, “conservatively” estimated that the warranty extension — which extends the existing warranty by two years or 24,000 miles — and reimbursement are worth $277.7 million, before going into the attorney fees, the vouchers and administrative costs.
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 the motion, plaintiff Stringer asked the court to conditionally certify 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 drivers said relating to the relief:
- The reimbursement scheme effectively makes the warranty extension retroactive, as 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 company will also grant reimbursement to drivers who had the issue diagnosed during the extension period, but who didn’t get the repairs done until after it expired, so long as the repairs are done within 90 days of the settlement’s notice date or 95,000 miles.
- The settlement offers drivers who received two or more transmission repairs a $1,000 voucher to buy or lease a new vehicle.
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.
Beasley Allen Hired By Family Of Man Who Suffered Fatal Chemical Exposure At Daikin America Plant In Decatur, Alabama
Will Delashaw, an employee at Daikin America Inc.’s Decatur, Alabama, plant, received severe lung injuries after being exposed to a mysterious chemical while on the job at the fluorochemicals manufacturing plant. Will clung to life for nearly three months before succumbing to his injuries due to the chemical exposure. His family hired Kendall Dunson from our firm to investigate and handle the case. Kendall had this to say:
Mr. Delashaw’s passing is tragic. He was fortunate to be surrounded by his loving family. We will do whatever is necessary to find out exactly what happened to him. We will honor his memory and the memory of others who died from exposures at Daiken.”
Two other workers were with Will on July 2 when the toxic exposure occurred. All three were hospitalized with severe lung injuries despite wearing personal protective equipment (PPE) and respirators. One of the workers died from his injuries on Aug. 10. The chemical that caused Will and the other workers to fall ill remains a mystery. So far, Daikin has offered few clues as to how or why the toxic exposure occurred. The lawsuit, which is now a death case, will enable Kendall to engage in discovery to better understand what chemical or chemicals caused the workers’ injuries and deaths.
According to Occupational Safety and Health Administration (OSHA) records, the July 2 incident isn’t the only toxic exposure incident at Daikin America’s Decatur plant. In 2019, a worker died after being exposed to an unknown chemical. Alabama workers injured on the job are automatically entitled to workers’ compensation benefits.
In the Delashaw lawsuit, Daikin America is charged with not ensuring its employees are safe. But Kendall is investigating to see if negligence on the chemical manufacturer or PPE maker may have contributed to the workers’ injuries.
Design Defect Versus Employer Conduct
Every on-the-job injury implicates workers’ compensation laws. When these injuries are perpetrated by industrial equipment, third parties like the equipment manufacturer/designer, installers or even product modifiers may be implicated. In addition to third parties, the injured client’s employer and / or co-employees could be liable for removing a safety device if the forum state’s Workers’ Compensation laws allow direct actions against the offending employer or co-employees. Whether or not a third-party claim is viable will be instrumental in determining whether a worker will be fully compensated for injuries received on the job.
Kendall Dunson, a lawyer in our Personal Injury & Products Liability Section, has been handling workplace-related litigation for a long time. He has recently filed suit on behalf of a worker injured on the job involving an industrial conveyor. While Kendall hasn’t been able to inspect the equipment, he has obtained the Occupational Safety and Health Administration (OSHA) report that includes photographs of the subject conveyor along with photographs of other conveyors on site. The OSHA report indicates inadequate guarding; however, an inspection and consultation with a mechanical engineer are still necessary to determine all the available claims. Our client sustained his injury in July 2020. Our OSHA search revealed a death on the same premises just 20 days earlier. That death also involved industrial machinery. Discovery in our case will reveal if the same piece of equipment was involved in both incidents.
On the day of our client’s unfortunate interaction with the conveyor, his lower leg was entrapped in the conveyor resulting in a traumatic partial amputation of his right foot. Medical providers were forced to amputate his leg further, leaving him with a below-the-knee amputation. Our client must live and work the remainder of his life with a prosthesis that carries maintenance, adjustments, and replacements. His life is forever changed.
Nothing we can do will replace our client’s leg; however, it is our goal and responsibility to use the litigation to fully compensate him for what he has lost and use this case to force the wrongdoers to take safety as seriously as they take profits and losses. Lives and limbs depend on the conditions in the workplace that are beyond the control of employees like our client. If you have any questions or comments, contact Kendall Dunson at 800-898-2034 or by email at [email protected].
On-The-Job Injuries: Willful Removal Of Safety Devices
Employees injured on the job are often entitled to workers’ compensation benefits. Workers’ compensation is often referred to as an exclusive remedy, meaning that it is an injured employee’s only option for recovering damages due to their accident. However, under Alabama’s dated workers’ compensation laws, what an injured worker can expect as compensation is almost always woefully inadequate. This is especially true when the worker suffers a severe or life-altering injury. Because of this, it is extremely important to thoroughly investigate catastrophic on-the-job injuries to ensure that workers’ compensation is, in fact, the only remedy available. Our experience is that there are other options available.
Under Alabama’s Workers’ Compensation laws, the injured employee will receive benefits for lost wages, medical care, and rehabilitation, even if the worker plays some role in causing the injuries. This is often referred to as the “no-fault” principle associated with workers’ compensation benefits. Under Alabama law, an injured employee is not entitled to the full value of their lost wages. Instead, the employee’s weekly earned wages are averaged out for the past year, and they are paid two-thirds of that amount.
The injured employee can also expect all medical expenses, including doctors’ appointments, prescriptions, medical devices, and physical therapy, to be paid for by workers’ compensation. The workers’ compensation laws in Alabama do not account for overtime hours. These laws certainly don’t adequately compensate an individual who is hurt so severely that they cannot return to work.
Despite the bright-line rule that workers’ compensation is the exclusive remedy, there are several possibilities to get around this principle. One of the most common exceptions in catastrophic injury cases is when the injured worker’s employer willfully removes a safety device from a machine. Under Ala. Code § 25-5-11(c)(2), an injured employee may bring an action in tort if a safety device is intentionally removed from a machine. These cases are very common and are easily overlooked unless a careful and detailed investigation is conducted. Often, the only way to determine whether a safety device is removed is to conduct an onsite inspection.
In other instances, filing the workers’ compensation claim and conducting discovery related to the machine in question can also determine that a guard was removed.
All too often, Beasley Allen lawyers see that an employer has removed a necessary safety device incorporated on industrial equipment by the manufacturer. Safety devices are often removed to increase productivity. Additionally, safety devices are often not maintained properly and, as a result, are inoperable. Our firm has handled cases involving removing safety devices such as physical barrier guards from saws, planers, conveyors, and rollers. There have also been situations where light curtains, two palm press buttons, pressure sensing mats, and other less obvious safety guards have been removed or altered.
It is imperative to carefully and diligently investigate all catastrophic on-the-job injuries to bring a claim outside of workers’ compensation. Because Alabama’s Workers’ Compensation laws and pay schedules have not been updated in decades, the available damages for a given injury under worker’s compensation are alarmingly low.
If you have any questions or have a case you would like for our firm to help with, contact Evan Allen, a lawyer in our Mobile office, at 800-898-2034 or by email at [email protected]. Evan handles workplace accident litigation for the firm.
PREMISES LIABILITY LITIGATION
A Look At Negligent Security Cases In Georgia
In the Atlanta metro area, apartment complexes are quite often sites of gun violence. Rarely, a week goes by without the local news reporting at least one such incident. This is just one facet of the issue of gun violence in the city. When Beasley Allen lawyers investigate this type of shooting, there are many considerations involved.
The Beasley Allen Atlanta office recently received a referral for an apartment complex shooting incident that we are investigating regarding negligent security issues. The incident took place on July 2, 2021, at Kristopher Woods Apartments in Clarkston, Georgia, to the east of downtown Atlanta. Our client, Mr. Ibrahim Mahamat, had parked his vehicle in the apartment complex, his place of residence. As he was exiting his vehicle in the early morning hours of July 2, he was approached by two individuals and was shot multiple times. Our client sustained gunshot wounds to the leg and ear. His injuries, which include a fractured femur, caused him to be hospitalized for 11 days. He is currently unable to walk or bear weight on his right leg and is also experiencing memory loss.
When Beasley Allen lawyers investigate a possible negligent security case at an apartment complex, it is very important to examine the measures put in place by the apartment management, or lack thereof, to ensure the safety of its residents. Many complexes in the Atlanta metro area are gated, but a gated community does not necessarily prevent gun violence. Beasley Allen must ascertain if the barrier around the complex’s property is continuous and unscalable or if there are gaps or other means of entry for any stranger off the street. If the complex is accessed through a gate or multiple gates, do those gates work properly? Are tenants provided with security codes or key fobs, and how often are these entry procedures updated and examined for efficacy?
Additionally, does the apartment complex retain security personnel to monitor who is coming and going? If so, are personnel provided with weapons and proper training? What are their criteria for noticing and addressing suspicious activity, and how do they appropriately respond to incident reports within the complex’s apartment units and common areas of the complex. Are security cameras outfitted throughout the complex, and are there any areas that might contain blind spots?
These are just a few of the many questions Beasley Allen lawyers must ask when investigating a negligent security claim at an apartment complex. In doing so, we hope that we will be able to bring Ibrahim’s assailants to justice, hold the apartment management accountable, and compensate Ibrahim for the damages he incurred due to this incident. Parker Miller and Chris Glover of our Atlanta Office are the lead Beasley Allen lawyers handling these cases. If you or a loved one was seriously injured due to a criminal act, or if you have any questions about these cases, contact Parker or Chris at 800-898-2034 or by email at [email protected] or [email protected].
Settlements In Canyon Gas Leak Claim
Southern California Gas and its parent, Sempra Energy, have agreed to pay up to $1.8 billion to settle personal injury and property damage claims by more than 35,000 victims of the 2015 Aliso Canyon gas leak. This follows roughly $5.7 million in discovery sanctions levied against SoCalGas in the civil litigation that started in 2015.
If approved, the settlements would resolve claims by tens of thousands of property owners who sued the utility after one of SoCalGas’ natural gas storage wells leaked nearly 100,000 tons of methane and other substances into the atmosphere over 118 days in late 2015. The Aliso Canyon blowout remains the biggest natural gas leak in U.S. history.
The leak was discovered in October 2015 and lasted until February 2016, ultimately releasing 109,000 metric tons of methane into the atmosphere, according to the California Air Resource Board, and displacing thousands of nearby residents — many who said they experienced nausea, dizziness, vomiting, shortness of breath, nosebleeds and headaches.
The incident sparked a wave of civil and criminal litigation against the utility, including civil litigation by property owners, which were coordinated in a proceeding in Los Angeles County Superior Court.
This proposed settlement is the latest of multiple settlements agreed to by the utility in the wake of the leak. In September 2016, SoCalGas agreed to pay $4 million to settle criminal charges brought by Los Angeles County over the alleged lack of proper notification about the leak, and the utility reached an $8.5 million settlement with local air pollution control agency the South Coast Air Quality Management District over claims stemming from the leak. In August 2018, the parties announced a proposed $119.5 million deal to settle the city and state’s lawsuit, and after a public comment period, it was signed off on in early 2019.
The residents and homeowners are represented by Brian J. Panish and Jesse Creed of Panish Shea & Boyle LLP, Ray Boucher and Cathy Kim of Boucher LLP, Frank Pitre, Gary Praglin and Kelly Weil of Cotchett Pitre & McCarthy LLP, Michael Kelly and Lindsey Bayman of Kirtland Packard LLP, Mariana McConnell and Paul Kiesel of Kiesel Law LLP, Frank Petosa of Morgan & Morgan, R. Rex Parris and Patricia K. Oliver of Parris Law Firm, Devin Bolton and Robin L. Greenwald of Weitz & Luxenberg and Roland Tellis and Evan Zucker of Baron & Budd PC.
The suits by the residents and homeowners are consolidated under Southern California Gas Leak Cases, case number JCCP4861, in California Superior Court for Los Angeles County. The civil cases that were settled in 2019 are People of the State of California v. Southern California Gas Co. (case number BC602973) and William Gandsey v. Southern California Gas Co. et al. (case number BC601844) in the Superior Court of the State of California, County of Los Angeles.
Endo Agrees To $50 Million Opioid Settlement In New York Trial
Endo Pharmaceuticals has agreed to a $50 million settlement in the ongoing New York opioid trial. As reported in the last issue, the trial had been thrown into disarray because of allegations that the drugmaker and it’s Arnold & Porter lawyers had concealed “damning evidence” of improper marketing involving narcotic painkillers. The settlement will earmark $22.3 million for New York state, which is litigating the case along with the Long Island counties of Nassau and Suffolk. The countries will get $27.7 million and will divide the money evenly.
The settlement renders moot a pending motion to have Endo deemed liable by default for alleged discovery violations. But it doesn’t negate another pending motion to have Arnold & Porter held in contempt for its role in Endo’s alleged failures to fulfill discovery obligations. It will be most interesting to see what happens in that motion.
Endo is still trying to negotiate a global settlement of opioid lawsuits filed against it by state and local governments across the country. The company said that it was also “currently exploring other strategic alternatives and may seek to implement one or more of those alternatives in the event it is unable to achieve a global settlement.” It was not known at press time what those strategic alternatives are or the status of the global settlement.
The New York trial is part of consolidated opioid litigation in the State of New York and is somewhat akin to a bellwether for cases filed by other New York counties. The settlement reached does not resolve suits against Endo by counties other than the two counties involved in the settlement.
Originally expected to include 12 families of corporate defendants, the New York trial has experienced a string of settlements that has gradually reduced the number of defendants down to three corporate families: drugmakers Allergan and Teva Pharmaceuticals, as well as drug distributor Anda Inc. Those remaining defendants, are still in the trial.
The cases are In re: Opioid Litigation (case number 400000/2017) County of Suffolk v. Purdue Pharma LP et al. (case number 400001/2017) County of Nassau v. Purdue Pharma LP et al. (case number 400008/2017) and State of New York v. Purdue Pharma LP et al. (case number 400016/2018) all in the Supreme Court of the State of New York, County of Suffolk.
Ohio Reaches $808 Million Opioid Distributor Settlement
The nation’s three largest drug distributors have reached an $808 million settlement with Ohio and agreed to pay $42.4 million in legal fees and implement reforms to end the State’s claims in the opioid litigation. Ohio Attorney General Dave Yost, who announced the settlement on Sept. 16, said the settlement with Cardinal Health Inc., AmerisourceBergen Corp. and McKesson Corp. is better than the national settlement. He says that’s because this settlement includes the payment of legal fees. Ohio used in-house counsel and outside lawyers to handle the litigation. Attorney General Yost said in a news release:
With this resolution, we have some important controls and monitoring provisions in place to help protect Ohioans and its communities from the reckless distribution and over-prescriptions that we have seen in previous years.
The settlement will start providing Ohio cities and counties with payments as early as November as part of an 18-year payment schedule, and the cash is guaranteed even if the national agreement falls apart.
Endo Agrees To $7.5 Million Opioid Settlement With Louisiana Attorney General
Endo Pharmaceuticals on Sept. 27 announced it had reached a $7.5 million settlement with the Louisiana attorney general to end all opioid claims in the state. The drugmaker said it had reached a settlement in principle with Louisiana Attorney General Jeff Landry’s office to end all cases and claims related to opioids brought by the state and its political subdivisions. The agreement requires full participation by those subdivisions.
Cherokee Nation Reaches $75 Million Opioid Settlement With Distributors
The Cherokee Nation announced on Sept. 27 that it had reached a $75 million settlement with AmerisourceBergen Corp., Cardinal Health Inc. and McKesson Corp. over claims that the companies contributed to the opioid epidemic. According to a statement by the Cherokee Nation, the settlement agreement will see the funds distributed over 6½ years, and it represents the largest settlement in the nation’s history. Cherokee Nation Attorney General Sara Hill said the settlement would go toward helping to reduce and prevent opioid addiction and its consequences within the reservation.
The Cherokee Nation’s pending lawsuit also includes claims against major pharmacy chains; like drug distributors and manufacturers, pharmacies are facing thousands of lawsuits accusing them of contributing to a deadly plague of narcotic abuse. This settlement does not affect those claims, the Cherokee Nation said and that it intends to “vigorously pursue” those claims through trial, which is expected to be held next fall.
The Cherokee Nation is represented by its attorney general’s office, Boies Schiller Flexner LLP, Fields PLLC, and Whitten Burrage.
The case is Cherokee Nation v. McKesson Corp. et al. (case number 6:18-cv-00056) in the U.S. District Court for the Eastern District of Oklahoma. The MDL is In re: National Prescription Opiate Litigation (case number 1:17-md-02804) in the U.S. District Court for the Northern District of Ohio.
Purdue Bankruptcy Gets Court Approval
U.S. Bankruptcy Judge Robert Drain has approved Purdue’s Chapter 11 bankruptcy plan, including a release from civil liability for the Sackler family that controlled the company and profited from its sale of opioids to the tune of billions of dollars. The judge said the plan was a better result than liquidating Purdue’s assets. As previously reported, Purdue entered bankruptcy in September 2019 while facing civil litigation filed by virtually every State and thousands of municipalities for its role in creating the U.S. opioid crisis through the promotion and sale of OxyContin.
Members of the Sackler family did not file for bankruptcy, but in exchange for their ownership stakes in the company and a $4.5 billion contribution, they will be released from civil liability for their role in running Purdue and profiting from Purdue and affiliated companies’ sale of brand name and generic opioids.
The U.S. Trustee, several states, and the Department of Justice have questioned the authority of Judge Drain to release third parties like the Sacklers from liability without unanimous consent. Their concern was that they would be unable to hold the Sacklers accountable for their role in perpetuating the opioid crisis. However, the amount of potential claims far exceeds the combined net worth of Purdue and the Sackler family, making the Chapter 11 plan, in the view of Judge Drain and what appears to be a large majority of the creditors, the only way to fairly compensate victims. It’s estimated that liquidation of Purdue would likely lead to less than a $600 million recovery for creditors.
Judge Drain cautioned that he only had the authority to release liability connected to Purdue and that before he gave final approval, the releases would have to be revised to make it clear he was not releasing the Sacklers from opioid liability unrelated to their roles in the company. The judge also made it clear that he was not releasing the Sacklers from criminal liability.
On Sept. 15, the U.S. trustee filed a motion of its intent to appeal the confirmation order, alongside notices from Maryland and a group of local Canadian governments. The District of Columbia and the state of Washington had filed appeal notices on the day Judge Drain ruled. The trustee’s motion was accompanied by one asking the court to stay enforcement of the confirmation order pending appeal. It argued the Bankruptcy Code does not allow the release of non-debtor claims against non-debtor parties and that the involuntary releases violated the due process rights of parties with opioid claims against the Sacklers. The U.S. Trustee had this to say about the plan:
The confirmed plan erodes the public’s confidence in the bankruptcy system by giving the appearance that individuals and their affiliates can use the bankruptcy case of another entity to evade responsibility for their misconduct without filing bankruptcy themselves and submitting to the transparency required in the bankruptcy process.
The case is In re: Purdue Pharma LP (case number 7:19-bk-23649) in the U.S. Bankruptcy Court for the Southern District of New York.
The Beasley Allen Opioid Litigation Team
Beasley Allen’s Opioid Litigation Team continues to work on existing cases. As stated last month, activity in the opioid litigation will depend largely on what happens relating to the announced global settlement and further negotiating efforts. We will write more on the upcoming Alabama case in Montgomery and discuss the settlement picture next month.
As stated, Beasley Allen lawyers represent the State of Alabama, the State of Georgia, and numerous local governments and other entities and handle individual claims on behalf of victims in this litigation.
Our Opioid Litigation Team includes Rhon Jones ( [email protected]), Parker Miller ( [email protected]), Ken Wilson ( [email protected]), David Diab ( [email protected]), Rick Stratton ( [email protected]), Will Sutton ( [email protected]), Jeff Price ( [email protected]), Gavin King ( [email protected]), Tucker Osborne ( [email protected]), Elliott Bienenfeld ( [email protected]) and Matt Griffith ( [email protected]).
If you need more information on any phase of the opioid litigation, contact one of the lawyers on the team listed above at 800-898-2034 or by email.
The ONGOING Roundup Litigation
An Update On The Roundup Litigation
The fourth Roundup trial in the country began in California at the end of July. However, due to an outbreak of COVID-19 from persons within the courtroom, the trial had to transition to a virtual and remote trial. Unfortunately, the remote trial was plagued with technical difficulties that have led to long, slow days of trial.
Another Roundup trial began in Los Angeles County, California, on September 13. This case involves a young boy diagnosed with a form of non-Hodgkin’s’ lymphoma when he was four years of age. The youngster was often exposed to Roundup when he accompanied his mother while she sprayed Roundup to kill weeds around the family’s residential property.
Recently in the MDL, counsel for defendant Bayer requested that Judge Vince Chhabria reduce the volume of cases in the fourth wave of the Roundup MDL to no more than 150 cases instead of the proposed 200 to 300 cases. This request was due, in part, to the “disproportionate” burden that counsel for defendant claimed was placed on the defendant to work up the cases for trial as compared to the plaintiff’s burden.
Judge Chhabria disagreed and pointed out that cases are not being settled until they are on the verge of being sent to trial – at a point after which the burdensome workup has already been completed. The Judge’s advice to Bayer AG was simple, as he stated: “[I]t seems to me that if Monsanto prefers not to undergo the expense and burden of working the cases up for trial, Monsanto can settle the cases early.”
Beasley Allen’s Toxic Tort Section lawyers have been working to protect their clients’ best interests and seek a fair and reasonable resolution for their clients. Some areas of the litigation can’t be discussed at this point. Contact Rhon Jones ( [email protected]), Will Sutton ( [email protected]), or Matt Pettit ( [email protected]) for more information on the Roundup litigation.
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. For more information, contact one of the members of the Roundup Litigation Team. Rhon Jones, who heads up our Toxic Torts Section, is now in charge of this litigation. Other members of the team are Michael Dunphy and William Sutton, lawyers in our Toxic Torts Section, at 800-898-2034 or by email at [email protected], [email protected] and [email protected].
THE TALC LITIGATION
September Talc Litigation Update
Beasley Allen’s Talc Litigation Team has been extremely busy over the last few months, with multiple trials in state courts being tried. In Illinois, a motion for a new trial has been filed in the Cadagin case. Our team has several other cases getting prepared for trials, likely to be set in 2022.
The St. Louis trial of the three-plaintiff case began during the first week of September and resulted in a defense verdict. In Georgia, the Brower retrial is still being reset, with plans to retry this case as soon as it is safe to do so. Another trial started in Augusta, Georgia, on September 16 involving asbestos in J&J Baby Powder that caused the death of a retired school teacher. The Kleiner case in Pennsylvania ended on Sept. 24 with a defense verdict after a five-week trial. More will be written on this case in the next issue.
While these trials in state court have been occurring, the MDL has continued moving forward with several additional liability depositions taking place along with the depositions of the experts that will likely be used in the bellwether trials starting next Spring.
Additional trials have already been set in Missouri, Illinois, and Pennsylvania for 2021 and into 2022. The team is also moving forward with the Carl and Balderrama trials in Atlantic City, with potential trial dates in Early 2022. The team is also continuing to explore South Florida as a potential venue for additional trials in 2021 and 2022. It has been working on discovery efforts against various retailers of talcum powder throughout the states.
Beasley Allen Talc Litigation Team
The talc litigation around the country is ongoing. Even with the problems caused by COVID, this litigation continues around the country at a record pace. The lawyers on our Talc Litigation Team continue to prepare for the upcoming trials and are still taking in new cases.
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.
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]).
THE JUUL LITIGATION
FDA Says More Time Is Needed To Complete Review Of JUUL; Rejects Other Flavored Vaping Products Premarket Applications
On Sept. 9, the U.S. Food and Drug Administration (FDA) delayed deciding the Premarket Tobacco Product Application (PMTA) of e-cigarette industry leader JUUL Labs, Inc. But the FDA rejected almost 950,000 flavored vaping products because their PMTA’s did not include sufficient evidence that the alleged benefit to adult smokers outweighed the public health risk to youth users.
The FDA released information showing that more than 80% of e-cigarette users ages 12-17 use vaping products with flavor. Over the past year, the agency said it has reviewed applications for more than 6.5 million vaping products. Yet, the FDA said in a statement:
There’s more work to be done to complete our remaining reviews and ensure that we continue taking appropriate action to protect our nation’s youth from the dangers of all tobacco products, including e-cigarettes, which remain the most commonly used tobacco product by youth in the United States[.]
The FDA continues to review and rule on PMTA applications. Companies had to submit their applications by Sept. 9, 2020. The agency previously said it was prioritizing applications for products based on market share size. In deciding whether to let companies keep products on the market, the FDA said it would balance how a vaping product may affect youth and whether the product could help adult smokers switch from combustible cigarettes.
In August 2021, the agency decided that about 55,000 vaping products should be taken off the market because of the risk of youth use. Apple Crumble, Dr. Cola, and Cinnamon Toast Cereal were flavors implicated by the FDA’s August 2021 decision.
According to the FDA, more than 80% of e-cigarette users ages 12-17 use flavored vaping products. The vaping industry has ballooned in recent years. The court-ordered deadline resulted from a lawsuit brought by public health groups to speed up the FDA’s regulation of e-cigarettes under the Tobacco Control Act.
The FDA did state that, while there is no set release date for future decisions, the remaining applications are in the last stages of review. Beasley Allen’s JUUL litigation team will continue to monitor FDA activity and provide updates as reviews by the agency are completed.
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 SUNSCREEN LITIGATION
The Sunscreen Litigation: The Judicial Panel On Multi-District Litigation Will Consider Centralizing Johnson & Johnson Sunscreen Lawsuits In One Federal District Court
On Sept. 30, the U.S. Judicial Panel on Multidistrict Litigation (JPML) heard arguments on a motion to consolidate all federal lawsuits against Johnson & Johnson (J&J) over the company’s benzene-tainted Neutrogena and Aveeno sunscreen products. If the motion is granted, the federal litigation will be consolidated before one judge in multidistrict litigation (MDL) for coordinated pretrial proceedings.
Over the past several months, a growing number of sunscreen lawsuits have been filed against Johnson & Johnson – including two federal class action lawsuits filed by David Byrne, a product safety lawyer at the Beasley Allen law firm. The first lawsuit, Johanna Dominguez and Sharron Meijer et al. v. Johnson & Johnson Consumer Inc., is filed in the U.S. District Court for the Northern District of California, No. 3:21-CV-05419. The second Class action suit, Christine Goodwin and Christina Geloso et al. v. Johnson & Johnson Consumer Inc., is filed in the U.S. District Court for the Southern District of Florida, No. 21-CV-61890.
Andy Birchfield, who heads up the firm’s Mass Torts Section, will also be involved in this important litigation. In addition to these Beasley Allen lawyers, the legal team includes Alex Walsh and Kimberly Channick from Walsh Law PLLC and Seth Meyer, Alex Dravillas and Warren Postman from Keller Lenkner LLC.
The lawsuits allege that J&J endangered consumers’ health by not warning them of the presence of benzene in brands of Neutrogena and Aveeno spray sunscreen, which could increase their risk of cancer. Benzene is an industrial chemical that has been associated with the development of several fatal forms of cancer, leukemia and other conditions, such as AML, Chronic Myelogenous Leukemia (CML), Acute Lymphocytic Leukemia (ALL), Chronic Lymphocytic Leukemia (CLL), Non-Hodgkin’s Lymphoma, Multiple Myeloma, and Myelodysplastic Syndrome (MDL). For this reason, the FDA has stated that benzene should not be included in drug or consumer products if avoidable. If benzene is not avoidable, it should be restricted to 2 parts per million (ppm), according to the FDA. However, in this case, testing suggests that the amount of benzene found in a number of Neutrogena and Aveeno sunscreen products substantially exceeds this 2ppm level.
If you or a loved one has experienced harm or financial loss due to sunscreen products, you may contact Melissa Prickett or David Byrne at (800) 898-2034 or by email at [email protected] or [email protected].
THE PARAQUAT LITIGATION
Paraquat MDL Status Update
The Paraquat Products Liability Litigation MDL was formed on June 8, 2021 (Case No. 3:21-MD-3004). Currently, there are slightly over 300 lawsuits that have been consolidated before the MDL, and that number continues to grow. Chief Judge Nancy J. Rosenstengel of the Southern District of Illinois, nominated to the bench by President Obama in 2014, has been assigned to the Paraquat MDL. The Court has shown great initiative to move the MDL quickly and efficiently by already setting a trial date for Nov. 15, 2022.
Within the first month of being assigned to the Paraquat MDL, Judge Rosenstengel appointed Lead Counsel, a Plaintiffs’ Executive Committee, and Randi Ellis as special master to work with the parties during the discovery process. Randi Ellis has been appointed special master in several other MDLs, including the Depakote litigation, where she served under Judge Rosenstengel. The special master has weekly communication with leadership in the Paraquat MDL.
Judge Rosenstengel is holding monthly status conferences via Zoom that are open to the public. The status conferences were set for Sept. 24, 2021, Oct. 29, 2021, and Dec. 3, 2021, at 10:00 a.m. Central Daylight Time.
On Sept. 3, 2021, the Court entered Case Management Order No. 7, which set out the form and application of the Plaintiff’s Assessment Questionnaire and the Plaintiff’s Fact Sheet. These documents are available on the docket and will be key in providing an overview of each plaintiff’s exposure to paraquat and assisting the parties in potential selection of bellwether cases. At press time, an implementing order had not been issued by the court.
Before the Paraquat MDL was formed, similar cases involving paraquat were pending for several years in St. Clair County, Illinois, before the Honorable Kevin Hoerner. Hoffmann, et. All v. Syngenta Crop Protection, LLC et al., Case No. 17-L-517 is one St. Clair County paraquat case. The Hoffman case was set for trial in May 2021 but was stayed after creating the Paraquat MDL.
Judge Rosenstengel was aware of the status and history of the Hoffman case soon after receiving the assignment of the MDL, and in the interest of expediting the MDL, ordered the production of certain Hoffman materials in the MDL.
On Sept. 3, 2021, Judge Rosenstengel ordered that the following documents in the Hoffman case be produced in the MDL:
- all written discovery requests and responses;
- all deposition transcripts;
- all expert reports, and
- all pleadings not filed under seal pursuant to a protective order in the MDL.
This Hoffman document production will assist all parties in the MDL to further the litigation without duplicating work that had already been completed.
Beasley Allen lawyer, Julia A. Merritt, is a member of the Plaintiffs’ Executive Committee on the Paraquat MDL. She heads up our firm’s involvement in the litigation, and she will be happy to answer any questions about the status of this litigation. Beasley Allen is continuing to accept cases where clients applied paraquat and have Parkinson’s Disease or Parkinson’s-like symptoms. Contact Julia at 800-898-2034 or by email at [email protected] if you have questions about the MDL or if we can be of assistance to you in your paraquat applicator cases.
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]), 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.
THE WHISTLEBLOWER LITIGATION
Sutter Health To Pay $60 Million To End Whistleblower Case
California health-care giant Sutter Health and several affiliates (Sutter) have agreed to pay $60 million to settle a False Claims Act (FCA) suit alleging that Sutter knowingly inflated how sick Medicare Advantage beneficiaries were to boost reimbursements. The federal program makes larger payments for patients with more severe diagnoses. The government claimed that Sutter knowingly submitted unsupported diagnosis codes for certain patient encounters for beneficiaries under its care. And even once Sutter realized what was happening, it failed to correct the problem, according to the Government.
Sutter said in a statement the dispute was partially resolved in April 2019 for $30 million, and it will pay an additional $60 million to resolve the litigation fully. This will bring the total settlement to $90 million. This is the second-largest reported Medicare Advantage fraud settlement ever, according to the whistleblower’s legal team.
Also, as part of the settlement, Sutter entered into a five-year corporate integrity agreement with the U.S. Department of Health and Human Services. That agreement requires Sutter Health to implement a centralized risk assessment program and to conduct annual reviews of its Medicare Advantage patients’ medical records and associated diagnoses data, according to the Justice Department.
The settlement resolves claims brought under the qui tam or whistleblower provision of the FCA by Kathy Ormsby, a former Palo Alto Medical Foundation employee. The FCA allows private individuals with knowledge of fraud against the government to bring a lawsuit on its behalf and share in the recovery. Ms. Ormsby, the whistleblower, can receive anywhere from 15% to 30% of the overall settlement – some $13.5 million to $30 million.
The settlement comes on the heels of an important D.C. Circuit decision finding that a Medicare Advantage overpayment rule doesn’t improperly hold private insurers to higher standards. At issue was whether the Centers for Medicare and Medicaid Services must ensure “actuarial equivalence” between payments in Medicare Advantage and traditional government-run Medicare. The appeals court found that “actuarial equivalence does not apply to the overpayment rule or the statutory overpayment-refund obligation under which it was promulgated.”
Medicare Advantage, or the Medicare Part C program, gives Medicare beneficiaries the option of enrolling in managed health care insurance plans that are paid by a per-person amount to provide benefits to beneficiaries, according to the government. Those payments are based on demographic information and the health statuses of beneficiaries. Sutter Health contracted to provide care to beneficiaries enrolled in certain plans, the government said.
The case is U.S. ex rel. Ormsby v. Sutter Health et al. (case number 15-cv-01062) in the U.S. District Court for the Northern District of California.
Source: Law 360.com
Defense Contractor Hit With More Than $100 Million Damages In Fraud Case
A federal court jury verdict last month could result in MD Helicopters, a defense contractor, having to pay more than $100 million to whistleblowers and the federal government. This came after jurors in Huntsville, Alabama, found the company fraudulently induced the U.S. Army into contracts with Saudi Arabia, El Salvador and Costa Rica.
The lawsuit from 2013 was originally filed under the False Claims Act by two former employees of MD Helicopters. The plaintiffs and the U.S. government stand to receive triple the damages awarded by the jury. The jury found the company liable in three claims, awarding baseline penalties of nearly $3.8 million in one claim, $29.7 million in the second, and $3.3 million in the third. The suit against the company was filed in federal district court by Philip Marsteller and Robert Swisher.
The trial offered a look inside the world of defense contracts at Redstone Arsenal in Huntsville. In this case, the Army wanted to buy military helicopters to sell under its Foreign Military Sales program to three American allies: Saudi Arabia, El Salvador and Costa Rica.
The lawsuit alleged that MD Helicopters didn’t follow the Army contract code and that the company was improperly involved with an army contracting officer in Huntsville who later went to work with the defense contractor. The former officer, Norbert Vergez, served from 2010 to 2012 as the program manager for “Non-Standard Rotary Wing Aircraft” (NSRWA), an Army office at Redstone Arsenal responsible for contracts involving certain “non-standard” helicopters.
Tony Mastano and Josh Russ represented the whistleblowers in the case, and they did an outstanding job.
New Jersey Home Health Agency To Pay $17 Million In FCA Case
Home health care agencies operator Bayada will pay $17 million to settle a False Claims Act case, alleging Bayada bought two agencies in Arizona from a retirement home business as part of a kickback scheme to secure referrals of Medicare beneficiaries from that entity. As part of a qui tam lawsuit by former company executive David Freedman, the settlement covers allegations that the Moorestown, New Jersey-based Bayada submitted false claims to Medicare over more than six years for services provided to patients referred to the company as a result of the purportedly illicit arrangement.
Freedman, who served as the company’s director of strategic growth between 2009 and 2016, will receive about $3 million of the settlement, according to the settlement agreement. Bayada also is expected to pay $695,000 to Freedman’s counsel at Goldberg Kohn for expenses, attorney fees and costs, according to the agreement.
The allegations in the lawsuit involve around Bayada’s 2014 purchase of two home health care agencies in Arizona from the retirement home operator. The government claimed Bayada acquired those agencies in order to “induce” the seller to refer Medicare beneficiaries living in its other retirement homes to agencies operated by Bayada. For services provided to such patients, prosecutors said that Bayada allegedly submitted “false claims for payment” to Medicare between Jan. 1, 2014, and Oct. 31, 2020.
Freedman filed his initial complaint in August 2017 and ultimately a second amended complaint on June 30, 2021, according to the settlement agreement. The government partially intervened “in the civil action for the purpose of this settlement.” Prosecutors said that the case “remains under seal as to allegations against entities other than the Bayada companies.”
The government is represented by Assistant U.S. Attorney Daniel Meyler of the U.S. Attorney’s Office and Trial Attorney Samson Asiyanbi of the DOJ’s civil division. Freedman is represented by David Chizewer and David Morrison of Goldberg Kohn. The case is United States ex rel. Freedman v. Bayada Home Health Care Inc. (case number 17-cv-6267) in the U.S. District Court for the District of New Jersey.
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, and that has proved to be an accurate appraisal. Fraud against the federal government is being committed by all too many industries in this country, especially in the health care field. That has been and continues to be a huge problem. The effect of the pandemic has 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 important 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.
Boeing Board Of Directors Must Face Safety Neglect Claims
Boeing Inc.’s board of directors will have to face safety neglect claims relating to the deadly crashes of 737 MAX jetliners in late 2018 and early 2019. Delaware’s Chancery Court found that stockholders have adequately pled that the board failed to establish a needed reporting system and had turned a blind eye to safety concerns.
Vice-Chancellor Morgan T. Zurn granted in part and denied in part a motion to dismiss the derivative suit, ruling that the shareholders had successfully pled with particularity that a majority of its board of directors may be liable for oversight failures. The directors failed to establish a reporting system for airplane safety. It appears they also turned a blind eye to a red flag representing airplane safety problems. The Vice-Chancellor said in the ruling that “I conclude the stockholders have pled both sources of board liability. The stockholders may pursue the company’s oversight claim against the board.”
As we have previously reported in prior issues, the crashes took the lives of 346 passengers and crew and led to the extended grounding of Boeing’s 737 MAX fleet, $20 billion in nonlitigation costs, more than $2.5 billion in litigation costs and damning allegations about the company’s safety culture. It also put the company in the middle of a battle over the reach of Delaware’s “Caremark” corporate law standards for judging both director and officer liability for the most egregious types of duty failures.
The stockholders’ derivative suit names 13 current and former Boeing directors and eight current or former officers. Both groups were accused of consciously breaching their fiduciary duties and acting with gross negligence in connection with the 737’s problems.
In January, Boeing agreed to enter into a $2.5 billion deferred prosecution agreement with the U.S. Department of Justice over lack of candor and conspiracy to defraud the Federal Aviation Administration’s Aircraft Evaluation Group regarding the 737 Max.
The stockholders are represented by Joel Friedlander, Jeffrey M. Gorris and Christopher M. Foulds of Friedlander & Gorris PA and Richard M. Heimann, Katherine Lubin Benson, Steven E. Fineman, Nicholas Diamand, Sean Petterson, Rhea Ghosh and Kartik S. Madiraju of Lieff Cabraser Heimann & Bernstein LLP.
The case is In re: The Boeing Co. Derivative Litigation (case number 2019-0907) in the Court of Chancery of the State of Delaware.
737 Max Flyers Win Class Certification In RICO Suit Against Boeing And Southwest
A Texas federal judge has certified four classes of passengers accusing Southwest Airlines of colluding with Boeing to shore up public confidence in faulty 737 MAX 8 jets and inflate ticket prices. This allows thousands of customers to collectively go to trial in the cases claiming damages.
U.S. District Judge Amos L. Mazzant granted the plaintiffs’ request to certify two classes in the Racketeer Influenced and Corrupt Organizations Act (RICO) lawsuit: one class of customers who bought Southwest Airlines tickets and another class comprising customers who bought tickets from American Airlines, which also flew Boeing 737 MAX 8 jets, but is not named as a party in the suit.
Judge Mazzant went further by dividing each class in two based on whether the class members bought the plane ticket themselves or were later reimbursed. The judge explained that who paid for the ticket is needed to determine who bore the ultimate economic burden and suffered a RICO injury. Therefore, according to the order, there will be a Southwest purchasing class, a Southwest reimbursing class, an American Airlines purchasing class, and an American Airlines reimbursing class.
The passengers filed the RICO action in July 2019 accusing Southwest — which is one of Boeing’s biggest domestic customers and whose entire fleet is made up of variations of Boeing’s 737 line of jets — of collaborating with Boeing to put out a false and misleading narrative indicating that the 737 MAX 8 jets were designed with the utmost safety standards and operated seamlessly when flown by experienced and well-trained pilots. But in reality, the jets had many design flaws and pilots were left in the dark about critical features impacting their overall safety. The plaintiffs allege that customers ended up overpaying for tickets on MAX 8 flights.
The class period spans from Aug. 29, 2017, which is when Southwest first took delivery of the MAX 8, to March 13, 2019, which is when the FAA grounded all Max series jets. Bathaee Dunne LLP and Dovel & Luner LLP will serve as co-lead class counsel, according to the judge’s order.
The plaintiffs leading this lawsuit allege that in the weeks and months following the 2018 Lion Air crash, Boeing and Southwest began a joint campaign to ensure regulators, the media and members of the public that, despite the crash, the MAX 8 was safe to operate. The judge wrote in detail about the joint efforts of the two companies and the various aspects of the RICO claims.
The plaintiffs are represented by Yavar Bathaee, Brian Dunne, Edward M. Grauman and Andrew Wolinsky of Bathaee Dunne LLP, Elizabeth L. DeRieux and S. Calvin Capshaw of Capshaw DeRieux LLP and John Jeffrey Eichmann, Gregory S. Dovel, Simon Franzini, Julien A. Adams, Jonas Jacobson, Christin Cho and Rick Lyon of Dovel & Luner LLP.
The case is Earl et al. v. The Boeing Co. et al. (case number 4:19-cv-00507) in the U.S. District Court for the Eastern District of Texas.
“Air Rage” Incidents Spike Raising Concern Over Crewmember And The Traveling Public’s Safety
Throwing objects at fellow passengers, lying on the floor of an aisle on an airplane and refusing to get up, grabbing a flight attendant around the ankles. All these actions sound like those of a child. Sadly, an adult (indicated only by the person’s birth year) was the culprit behind these actions, forcing a flight to divert and make an emergency landing. It is just one of the hundreds of unruly passengers or “air rage” incidents the Federal Aviation Administration (FAA) has been investigating from the first seven months of this year. Skyrocketing “air rage” incidents and concerns over the safety of airplane crew members and the traveling public encouraged new FAA enforcement policies, including zero-tolerance for violent or threatening outbursts.
In January, just days after the U.S. Capitol attack by pro-Trump rioters, FAA Administrator Steve Dickson signed an order strengthening the agency’s enforcement policy against unruly air travelers. The order, now known as the zero-tolerance policy, bars passengers from interfering with, physically assaulting, or threatening to assault aircraft crew or anyone else on an aircraft physically. Passengers who violate this law could face stiff penalties, fines of up to $35,000 and imprisonment.
According to the New York Times, “airlines, flight attendant unions and passengers reported disruptive and threatening behavior from supporters of President Trump on flights to and from Washington and in airports” and that “such behavior began on flights into Washington in the days before the Jan. 6 attack on the Capitol… .” CNBC reported that the events prompted flight attendant unions to urge the FAA to adopt the zero-tolerance policy to crack down on threatening and violent passengers.
The order implementing the zero-tolerance policy was initially in effect until March 30, but Dickson extended the order indefinitely by mid-March. CNBC reported that the FAA received 500 unruly air passenger incidents from late December 2020 until Dickson’s announcement in mid-March. The news outlet said that “[m]ost of the cases involve[d] passengers’ failure to follow airline and federal mask mandates.” Dickson explained that the extension would help the agency “continue to do everything we can to confront the pandemic,” referring to enforcing the federal mask mandate to help prevent or slow the transmission of the coronavirus.
The number of incidents has increased dramatically in 2021. The FAA initiated 146 investigations of potential violations by unruly passengers in 2019, while it has initiated 727 investigations during only the first half of 2021. By August, the FAA had imposed over $1 million in civil penalties on unruly passengers for the year. Passengers refusing to wear masks are hit with a $9,000 fine, while passengers exhibiting more violent behavior and also typically maskless face higher penalties.
The incidents have also grown in intensity, and flight attendants and cabin crew members are on the front lines. Enraged passengers have attacked flight attendants. Reuters reported that one Frontier Airlines passenger attempted to breach the flight deck by attacking two flight attendants and threatening to kill one if they didn’t open the door. The passenger was fined $30,000.
While they hope the higher monetary fines will deter violent outbursts, many flight attendants fear for their safety while on the job. Survey findings released by the Association of Flight Attendants in July found that 84% of flight attendants have handled unruly passengers this year alone, and 17% of them have experienced a physical incident.
One of the higher-profile incidents occurred in May. A passenger punched a Southwest flight attendant in the face, knocking out two teeth and leaving her with other facial injuries.
It’s a sad state of affairs when flight attendants have to learn how to defend themselves from attacks while in flight. It was reported that flight attendants have enrolled in self-defense classes through the Transportation Safety Administration (TSA) to strengthen their ability to fend off an attacker. Airlines have employed more undercover air marshals and increased other proactive safety measures.
Mitra Amirzadeh, who works for a low-cost U.S. airline as a flight attendant, told CNN that the concern isn’t just about the crew’s safety. Other passengers are at risk, too. She explained that when flight attendants must handle unruly passengers, they are prevented from addressing other issues on the aircraft. Amirzadeh said:
We are the people that are going to give you CPR, we’re the people that are going to give you the Heimlich maneuver, we are the people that are going to put out the fire. But we might miss those things if we’re too busy arguing with someone else about putting their mask on.
It is too soon to know how effective the zero-tolerance policy is at deterring future incidents. Still, the agency and flight attendants are hopeful that the historic fines issued this year will effectively help passengers better control their impulsive actions that put everyone at risk when adults misbehave at 30,000 feet.
Sources: Federal Aviation Administration, New York Times, CNBC, Reuters, Association of Flight Attendants, CNN
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 ASBESTOS LITIGATION
Proving Your Asbestos Case: Utilizing Industrial Hygienists
In asbestos litigation, there are two fundamental issues that every plaintiff faces from the outset of a case. Those are the issues of product identification and exposure.
Product identification is simply providing evidence that the individual worked with and / or around a particular asbestos-containing product. This can be done through various methods, but it is most often achieved via firsthand testimony of the plaintiff, the plaintiff’s co-workers and / or site-specific documentary evidence.
The question of exposure to asbestos from those products relies upon that very same evidence, but it can also be supported by expert testimony by an industrial hygienist. In the field, industrial hygiene is the science of protecting and enhancing the health and safety of people at work and in their communities. Essentially, they work to ensure worker safety. In the litigation context, the industrial hygienist can assemble an exposure history that addresses the locations and activities that may have contributed to the asbestos-related disease.
An industrial hygienist relies upon various disciplines, including epidemiology and toxicology, in conjunction with historical and / or lab-created studies that look at different exposure levels from different products, with different work activities, and in different settings. By evaluating described exposures in a specific case based on comparing them to similar known exposure levels, an industrial hygienist can articulate what exposures an individual plaintiff may have experienced. This is not to say that a “dose reconstruction” or a particular level of exposure is necessary or even helpful in most cases. Still, by synthesizing these various disciplines, plaintiffs can provide courts with a better understanding of the exposures suffered and how those exposures contributed to overall risk and a plaintiff’s cumulative exposure history.
At Beasley Allen, we work with and have longstanding relationships with experts, such as industrial hygienists, who have the skill and knowledge to assist in these very difficult cases effectively. Our asbestos litigation team, led by Charlie Stern, works with those experts and maintains those vital relationships to ensure our clients’ cases are positioned for success.
South Carolina Jury Awards $32 Million In Kraft Heinz Asbestos Death Suit
A South Carolina jury returned a $32 million verdict in a case against Kraft Heinz Co. and Metal Masters Inc. The suit, by a worker, alleged that his wife died of mesothelioma as a result of asbestos exposure through his work at a facility Kraft Heinz owned in the state. At the close of the trial on September 24, the jury found that Kraft and Metal Masters had been negligent in failing to alert Robert Dee Weist about the dangers of asbestos that he encountered at the Kraft facility, leading to his wife, Kathy, becoming ill with mesothelioma and later dying.
The jury awarded Robert Weist $11 million for survival damages, $10 million in wrongful death damages and $1 million for loss of consortium, all to be paid by both Kraft and Metal Masters, and an additional $10 million in punitive damages against Kraft.
While the complaint names a number of other defendants, including Honeywell International Inc., the trial focused on Kraft and Metal Masters because some defendants were dismissed by stipulation and others have motions for summary judgment pending.
Weist is represented by Fritz Jekel of The Jekel Doolittle Firm and Daniel J. Wasserberg of Meirowitz & Wasserberg LLP. The case is Weist v. The Kraft Heinz Co. et al. (case number 2020-CP-40-01597) in the South Carolina Court of Common Pleas for the Fifth Judicial Circuit.
The Asbestos Litigation Team
Asbestos Litigation has intensified nationwide over the past year. Because of its importance, our firm created an Asbestos Litigation Team 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].
MASS TORTS LITIGATION
Belviq Update: JPML Denied But Lawsuits Continue
On Aug. 10, the Judicial Panel on Multidistrict Litigation (JPML) denied consolidation of proceedings against the weight-loss drug Belviq. The panel’s decision was mainly due to only 20 cases having been filed since Belviq’s voluntary recall in February 2020. The panel determined that petitioners failed to establish that consolidation was the most efficient path and that informal coordination would be impracticable. Despite the panel’s denial, individual Belviq lawsuits continue to progress across the country in various state and federal courts.
Belviq, also known as Belviq XR or lorcaserin hydrochloride, was collectively developed, marketed, and distributed by Eisai, Inc., and Arena Pharmaceuticals, Inc. Belviq was originally FDA approved in 2012 as a first-in-class drug for chronic weight management. From January 2014 to June 2018, Arena Pharmaceuticals conducted a post-marketing clinical trial that ultimately indicated an imbalance of cancer in patients taking Belviq that increased with treatment duration. The most prominent cancers found were pancreatic, colorectal, and lung cancer.
Based on this data, the FDA issued a safety communication regarding Belviq on January 14, 2020. Less than a month later, on Feb. 13, 2020, Eisai and Arena issued a voluntary recall of Belviq throughout the United States.
Currently, Beasley Allen has seven lawsuits filed in various state and federal courts on behalf of clients diagnosed with cancer after taking Belviq, including pancreatic cancer, colorectal cancer, and breast cancer. Most of our cases are currently filed in New Jersey state court, where Eisai, Inc. is located. The Beasley Allen lawyers involved in this litigation anticipate filing several more cases over the coming months and exploring other venue options.
Our lawyers and support staff continue to investigate cases on behalf of individuals who were prescribed Belviq and were subsequently diagnosed with cancer, including but not limited to pancreatic cancer, colorectal cancer, thyroid cancer, and breast cancer. For more information, contact Melissa Prickett at [email protected] or Roger Smith at [email protected].
Update On Zantac Litigation
Beasley Allen lawyers are pursuing claims against the manufacturers of Zantac, which was initially a prescription medication for “heartburn.” Zantac was ultimately approved for over-the-counter sales. Over the history of the sale of Zantac, it has been manufactured and sold as a brand name medication by Glaxo-Smith-Kline (GSK), Pfizer, Boehringer Ingelheim and Sanofi. Zantac was also sold in various generic formulations by several different generic manufacturers.
In 2019, the FDA issued a notice requesting Zantac manufacturers to test their Zantac products for NDMA, a known carcinogen chemical. In 2020 the FDA issued a notice requesting that all manufacturers remove their Zantac products from the market.
The Zantac Litigation is currently centralized in federal court in southern Florida in multidistrict litigation (MDL) proceeding. In an MDL, cases filed in federal court across the country are sent to one court to resolve preliminary matters, including some “bellwether” trials. In the MDL proceeding, the parties engage in preliminary discovery and depositions, expert preparation, and evaluation and ultimately one or more bellwether trials. The Zantac MDL is currently in the final stages of liability depositions of the various defendants, which manufactured and sold the brand name Zantac. As part of the preliminary process, the federal court has entered an order dismissing all claims against manufacturers of generic formulations of Zantac.
The MDL cases are currently pursuing claims for injuries arising from the following forms of cancers believed to be caused by the use of Zantac: prostate, pancreatic, esophageal, stomach, breast (ductal only), liver, bladder, colorectal, kidney and lung.
The next important milestone in the Zantac MDL is identifying experts and producing expert reports by the lawyers representing the plaintiffs. Those reports are due in December 2021. After the reports are produced, the court will consider motions to determine whether the experts are qualified and whether their respective reports are allowable under applicable federal rules and law. The court will also consider whether the expert reports would support causation for the cancers discussed above. In this process, claims for injuries caused by one or more cancers could be removed from the litigation.
Once the plaintiffs’ expert reports are produced, the remaining defendants will have to produce reports of any experts they intend on using to testify, and the same evaluation process will occur. After all expert issues are resolved, one or more cases will likely be set for trial sometime in 2022.
Vaccinations Needed Against Covid-19, But J&J Vaccine Raises Questions
Almost 14 million people in the United States received the single-dose Johnson and Johnson (J&J) COVID-19 vaccine. Amid the latest COVID-19 surge, specifically the highly infectious delta variant, questions arose about how well the three vaccines authorized in the United States are holding up against this deadly variant. While public health officials have debated the need for booster shots in the coming months, J&J vaccine recipients are left frustrated and concerned about how few answers exist about the J&J vaccine.
“People who have received the J&J vaccine should be confident they have a high level of protection against hospitalization and severe disease,” according to Erika Reategui Schwarz, MD, an infectious disease specialist and assistant professor of medicine and hospital medicine at Icahn School of Medicine at Mount Sinai in New York City. Dr. Schwarz was also an investigator at the initial J&J clinical trial. Despite these assurances from an individual with a personal stake in J&J, more questions remain, and none of them have been fully answered so far.
As the delta variant continues to spread rapidly, breakthrough infections are increasing among recipients of the J&J and mRNA vaccines, Dr. Schwarz explains. “Right now, all the vaccines are still effective against the variants,” she explains. “We haven’t seen a variant that can fully escape immunity.”
Although the J&J vaccine can be effective, its uptake in the U.S. has been choppy. When the Food and Drug Administration (FDA) approved it for emergency use in February, the vaccine was lauded as a game-changer in the fight against COVID-19 because public health experts believed a single-dose regimen with easy storage requirements would make it more accessible than the two-dose mRNA vaccines (Pfizer and Moderna) that had already been approved.
In just the six months since then, the J&J vaccine has faced hurdle after hurdle. It has shown a lower rate of preventing COVID-19 symptoms, and the FDA and Center for Disease Control and Prevention (CDC) briefly paused its use in April to investigate the rare and serious blood disorders they thought were possibly linked to the vaccine. The FDA subsequently required a warning on the J&J vaccine. Since then, the FDA has continued to require more warnings to the J&J vaccine, including a rare but serious side effect: a neurological reaction known as Guillain- Barre.
Beasley Allen lawyers are investigating cases on behalf of people injured by the Johnson & Johnson Covid-19 vaccine. For more information, contact Chad Cook or Melissa Prickett at 800-898-2034 or by email at [email protected] or [email protected].
Sources: AAMC.org and Washington Post
INSURANCE INDUSTRY LITIGATION
Update ON The BSCS Antitrust Litigation
Blue Cross Blue Shield says the government shouldn’t worry that the insurance giant’s planned $2.67 billion agreement to settle subscribers’ antitrust claims in Alabama federal court could lead employers to mishandle assets in their workers’ health plans.
The U.S. Department of Labor wrote to the court in July with multiple legal concerns related to the pending settlement, which aims to clear up part of massive litigation accusing the insurer of dividing up markets to the detriment of members and providers. A group of plaintiffs comprising health plan subscribers — including both employer plans and individuals who buy health insurance — moved Aug. 3 for the court to override any objections, approve the settlement agreement and appoint a settlement administrator.
But the DOL only days before had sent a letter to lawyers on both sides of the antitrust battle with concerns about plans covered by the Employee Retirement Income Security Act (ERISA), a DOL-enforced law passed in 1974. Mainly the agency worries that the fund allocation could benefit employers at the expense of ERISA plan participants, or employees. BCBS said in an Aug. 3 filing in support of the plaintiffs’ move to finalize the settlement:
DOL’s concerns have already been fully addressed through the settlement negotiation and approval process, and they do not warrant any delay or provide any grounds to prevent the Court’s final approval of the settlement.
U.S. District Judge R. David Proctor gave the settlement initial approval in November in what would be one of the largest class payouts in history and affect tens of millions of insured members. The suit started in 2013 and accuses the nation’s 36 BCBS organizations of carving up the nation into service areas and, as a result, limiting competition among member insurers and non-BCBS insurers as well. Settlement negotiations began in 2015, with one expert estimating average overcharge damages to class members at 3.4% to 5.5%. BCBS also faces litigation from providers.
In a July 28 letter to the parties, the DOL Solicitor’s Office shared multiple concerns with how the planned settlement could set up conflicts between benefit plans and employers who sponsor health insurance. The DOL said:
The Secretary is concerned that the proposed settlement does not account for the specific legal interests of class-member ERISA plans, the potential for conflicts between ERISA plans and other class members, e.g., sponsoring employers, and the potential for the assets of ERISA plans to improperly flow to their employer sponsors. These failures threaten the interests of participants and beneficiaries in ERISA plans and expose sponsoring employers to litigation and liability for steps taken in connection with the settlement. Employers have an interest in monetary recovery, based on alleged overpayments in the form of contributions to ERISA plans. The plans they sponsor have an interest in monetary recovery too, based on the premiums or administrative fees they paid to settling defendants. The problem is that both claims assert an injury over the same overcharge. And because the net settlement fund is finite, paying both claims may reduce the ERISA plan’s total recovery.
It should be noted that the DOL did not oppose the settlement agreement. But the settling defendants responded in their own filing that the parties have already dealt with that issue, saying, among other things, that any possible conflicts between employers and ERISA plans have already been ironed out. Those defendants said:
DOL’s concern is unfounded. In the context of this settlement, the interests of the ERISA plans have been and are adequately represented, and there is no conflict between the employer class members and ERISA plan[s]. Additionally, the ERISA plans’ interests were also adequately represented by employer class representatives in the negotiation process. Employers frequently serve in a dual capacity as both the plan sponsor of the health plan and a plan fiduciary, a feature recognized and authorized by ERISA without identifying the dual role as an impermissible conflict. DOL’s concerns present no impediment to approval of the settlement.
The subscribers are represented by our friends at Boies Schiller Flexner LLP, Hausfeld LLP, Cooper & Kirk PLLC, Pittman Dutton Hellums PC and others.
As we have reported many times previously, Beasley Allen lawyers, led by Dee Miles, working along with other law firms, represent the providers in the litigation. That track of the case continues to move forward. We will continue to report the progress of both the Subscriber Track settlement and the continued litigation of the Provider Track until its conclusion. The case is In re: Blue Cross Blue Shield Antitrust Litigation (case number 2:13-cv-20000) in the U.S. District Court for the Northern District of Alabama.
SEC Penalizes Kraft / Heinz Abusive Over “Cost Savings Gap” Accounting
On Sept. 3, the Securities and Exchange Commission (SEC) charged the Kraft Heinz Company (KHC) with engaging in a long-running expense management scheme that resulted in the restatement of several years of financial reporting. From the last quarter of 2015 to the end of 2018, KHC engaged in various types of accounting misconduct and employed a number of expense management strategies that “misrepresented the true nature of transactions” and improperly inflated key earnings for investors.
The SEC contends KHC’s sham reporting was designed to recompense for unrealized expectations the 2015 KHC merger both reported to and anticipated by investors and interested parties. The SEC reports the alleged misconduct began as a “cost-savings gap” leading up to Heinz’s merger with Kraft and that it continued for years amid pressure to “deliver on certain cost savings.”
The accounting improprieties resulted in KHC improperly recognizing $208 million in cost savings arising out of nearly 300 transactions. The SEC found that KHC violated the negligence-based anti-fraud provisions of the Securities Act, the periodic and current reporting requirements of the Exchange Act, and the books and records and internal accounting controls provisions of the Exchange Act. KHC consented to cease and desist from future violations and pay a civil penalty of $62 million.
It was reported that SEC Commissioner Caroline Crenshaw has already used the KHC settlement to explain how agency evolution toward penalties more heavily focused on other factors like punishing misconduct and deterring future violations is imperative. The federal securities laws are based on a straightforward concept that everyone should be treated fairly and have access to certain facts about investments and those who sell them. The SEC’s primary purpose is to enforce these laws to protect investors. Because the only interest in conflict between investors and wrongdoers is monetary, enforcing the federal securities laws to hold wrongdoers accountable and deter future misconduct must prioritize monetary penalty.
The SEC has express authority to seek monetary penalties in civil enforcement cases under the 1990 Securities Enforcement Remedies and Penny Stock Reform Act, and the provisions that authorize the SEC to impose civil monetary penalties on corporations give the Commission considerable latitude to determine the amount of a penalty. Stronger enforcement will have ripple effects, and investors of all financial positions benefit when the federal securities laws are enforced.
While we anticipate the SEC to evolve eventually, our firm presently engages the courts with federal private actions available under the Securities and Exchange Act, as well as filing securities claims under related state laws on behalf of injured investors. Our firm is proud to work mutually with the SEC, particularly as representation for whistleblowers, and autonomously in private securities litigation on behalf of our clients.
The cases are In the Matter of the Kraft Heinz Co. et al., case number 3-20523, before the Securities and Exchange Commission, and SEC v. Hofmann, case number 1:21-cv-07407, in the U.S. District Court for the Southern District of New York.
$810 Million Settlement Ends Twitter Securities Suit On Eve Of Trial
As Twitter Inc. was set to face trial on Sept. 20 in a certified securities class action in a California federal court, the social media giant agreed to pay $809.5 million to settle and end claims it overstated user engagement in 2015 and caused shares to fall almost 15% in one day.
Twitter and counsel for the investors announced the settlement before jury selection started in the securities class action trial. In the investors’ statement, co-lead counsel Robbins Geller Rudman & Dowd LLP called the proposed settlement record-breaking and noted that it represents the largest securities fraud class action recovery in the last 20 years in the Ninth Circuit.
If approved, the settlement will end a 2016 lawsuit led by Doris Shenwick, who claims Twitter fraudulently changed how it tracked and reported use and engagement on its social network in 2015 to deceive shareholders and inflate its stock value in violation of multiple provisions of the Securities Exchange Act. The suit takes issue with statements made in press releases and public filings about Twitter’s monthly active users (MAU) and timeline views, claiming that the company abruptly switched its performance metrics to focus instead on daily active users (DAU) without disclosing it to investors.
The alleged misrepresentations sent Twitter’s stock up more than $50 per share in early 2015, only for it to drop under $26 per share later that year, according to the complaint. In July 2018, Judge Jon S. Tigar certified a class of investors who bought shares of the company between Feb. 6, 2015 — when Twitter allegedly indicated that user growth was going to accelerate — and July 28, 2015.
Judge Tigar appointed investment funds KBC Asset Management NV and National Elevator Industry Pension Fund as class representatives, and Motley Rice LLC and Robbins Geller Rudman & Dowd as the investors’ co-counsel.
The investors are represented by Robbins Geller Rudman & Dowd LLP and Motley Rice LLC. The case is In re: Twitter Inc. Securities Litigation (case number 3:16-cv-05314) in the U.S. District Court for the Northern District of California.
Beasley Allen Securities Litigation Team
Our firm has experience working with the SEC over the years in our handling of whistleblower actions: Assistance and information from a whistleblower who knows of possible securities law violations can be among the most powerful weapons in the SEC law enforcement arsenal. Through their knowledge of the circumstances and individuals involved, whistleblowers can identify possible fraud and other violations much earlier than might otherwise have been possible, allowing the SEC to minimize the harm to investors, better preserve the integrity of the United States’ capital markets, and more swiftly hold accountable those responsible for unlawful conduct.
Moreover, high-quality original information that leads to an SEC enforcement action in which over $1,000,000 in sanctions is ordered allows for ranged awards between 10% and 30% of the money collected. Our firm proudly pursues securities litigation, including but not limited to actions for specific violations and fraudulent actions and conspiracies. Our lawyers welcome any opportunity to investigate suspected illegal practices.
Lawyers in our firm’s Consumer Fraud & Commercial Litigation Section welcome any opportunity to investigate suspected practices and are excited to engage with both new and established colleagues in federal securities law and state securities litigation. Contact Dee Miles, James Eubank, Demet Basar or Paul Evans in the Section concerning any securities issues or if you have any questions. They can be reached at 800-898-2034 or by email at [email protected], [email protected], [email protected] or [email protected].
We encourage our readers to contact one of these lawyers if there are questions or more information is needed on securities litigation. You can reach them by phone at 800-898-2034 or by email [email protected], [email protected], [email protected] and [email protected].
EMPLOYMENT AND FLSA LITIGATION
Highly Paid Rig Worker Eligible For Overtime Pay
The full Fifth Circuit Court of Appeals, on a 12-6 vote, determined that a highly paid rig worker, making more than $200,000 a year, is entitled to overtime compensation. Michael Hewitt was a tool pusher responsible for overseeing workers during long periods on an offshore oil rig. The decision vacates a summary judgment ruling in favor of Helix Energy Solutions Group Inc. (Helix) that had ended Hewitt’s lawsuit seeking overtime pay that he said was being wrongly denied.
The court’s majority wrote that Congress has repeatedly rejected efforts to exempt all highly paid employees from overtime requirements, and the labor secretary, the U.S. Supreme Court and the Fifth Circuit have all determined that employees can’t be denied overtime simply because they are well paid. To be exempt from overtime under the Fair Labor Standards Act (FLSA), the highly paid employee must also be paid on a salary basis and perform certain duties. The court held:
The parties agree that Hewitt meets both the duties requirements and income thresholds of both exemptions. The company admits, however, that Hewitt’s pay is “computed on a daily basis,” rather than on a weekly, monthly, or annual basis.
The dispute before the court was whether a flat daily rate could be equivalent to a weekly salary and prevent certain workers from earning overtime pay. Hewitt argued that his day rate was not tantamount to a salary because his pay was contingent on the number of days he worked. The Department of Labor has defined “salary basis” to mean a worker regularly received a “predetermined amount” that is calculated on a “weekly or less frequent” pay period and that the individual is paid “without regard to the number of days or hours worked.”
U.S. Circuit Judge James C. Ho wrote a concurrence saying the “implicit message” of the dissenters and industry groups that filed amicus briefs in support of Helix is that it’s absurd to hold that employees as well paid as Hewitt are entitled to overtime. Judge Ho wrote:
As judges, however, we follow the law without regard to popularity. We ignore the booing of the crowd. In this case, the unhappy crowd happens to be the oil and gas industry. But it does not matter which crowd is booing. We apply the law as written — not as the industry would have written it.
Unfortunately, labor abuses occur every day in our country. The law provides protections for these types of wage and hour violations, but it requires courageous employees to come forward and challenge their employers who are violating the labor laws. Our firm has dedicated a part of our law practice to helping victims of labor law abuse. For more information, contact our lead labor lawyers Lance Gould or Larry Golston at 800-898-2034 or by email at [email protected] or [email protected].
Source Law 360.com
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 bestow 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].
TOXIC TORT LITIGATION
3m Earplug Litigation Picks Up Speed
U.S. District Judge Casey Rodgers in the Northern District of Florida recently issued a series of orders designed to accelerate the multidistrict litigation (MDL) regarding the 3M earplugs. Judge Rodgers cited the “unprecedented backlog” of more than 250,000 cases regarding the need for the orders. Judge Rodgers orders provided:
- Plaintiffs must move tens of thousands of cases from the administrative docket to the active docket.
- Additionally, the court will be entering “wave orders” requiring plaintiffs to work up cases for trial in waves of 500 cases each. Each wave will have eight months for discovery, and the court will issue a new wave order every three months.
Judge Rodgers also scheduled five more bellwether trials in November and December, each involving a single plaintiff. Four will be tried by other judges in Judge Rodgers’ district (the Northern District of Florida), and a fifth will be tried in Pensacola by a judge from the Northern District of Alabama. Judge Rodgers will continue to preside over the two Bellwether trials set in September and October.
The MDL is In re: 3M Combat Arms Earplug Products Liability Litigation (case number 3:19-md-02885) in the U.S. District Court for the Northern District of Florida. The service members and veterans are represented by a team led by Bryan Aylstock of Aylstock Witkin Kreis & Overholtz, Shelley Hutson of Clark Love & Hutson, and Christopher Seeger of Seeger Weiss LLP.
The cases typically involve allegations that the design defects with the 3M earplugs left military service members without adequate hearing protection, resulting in permanent hearing loss and tinnitus. In July 2018, 3M reached a $9.1 million settlement over the Combat Arms earplug problems with the Department of Justice, resolving claims that it defrauded the government by knowingly selling the defective earplugs. If you need more information, contact Will Sutton at 800-898-2034 or by email at [email protected].
New Study Indicates That Exposure To PFAS In The Home May Be Harmful
PFAS (forever chemicals) have been linked to a number of health problems. As we have previously explained, PFAS are a class of nearly 10,000 individual chemical compounds used in things like nonstick cookware, stain-resistant carpet, and other consumer goods. PFAS have been linked to increased cholesterol levels, blood pressure, low birth weights, liver damage, kidney and testicular cancer.
One recent study concluded that PFAS compounds have contaminated indoor air quality. These compounds break off household goods like carpets and attach to dust or freely float in the air. Scientists have known for some time that drinking water and food were two major routes of exposure to PFAS, but this new study indicates that inhalation may be a significant exposure route as well.
This new study used a new method for detecting PFAS in the air. Scientists analyzed the air in homes, offices, clothing stores, and even classrooms. One previous study found that kindergarten children were exposed to more PFAS through the air than through ingestion. As scientists continue to study PFAS, they learn more about previously unknown compounds and the risks associated with the broad range of manmade toxic chemicals.
Class Action Litigation
Revamped Data Breach Suit To Proceed Against Robinhood
A California magistrate judge has again refused to dismiss a proposed class action brought by Robinhood customers who say their accounts were hacked. U.S. Magistrate Judge Susan Van Keulen found that the customers had adequately alleged claims under the state’s novel privacy law. The judge also gave them another chance to revise several other allegations.
Judge Keulen in May dismissed about half of the claims facing Robinhood Financial LLC and Robinhood Securities LLC in the dispute. The suit accuses the popular stock-trading platform of failing to maintain industry-standard security measures that could have thwarted third parties from accessing about 2,000 customers’ funds and personal information without authorization. The platform is also accused of doing little to help its customers upon discovering the breach.
The order permitted the customers to replead what the magistrate judge found to be deficient claims for breach of contract and violations of the Customer Records Act, Consumers Legal Remedies Act, the fraudulent prong of the Unfair Competition Law, and the False Advertising Law. The customers subsequently filed a second amended complaint alleging these claims and four others that survived the first round of dismissal, including claims for negligence and for violations of the California Consumer Privacy Act (CCPA), which allows consumers to seek statutory damages for data breaches that result from a company’s alleged failure to implement reasonable security procedures.
In the order on Robinhood’s motion to dismiss the amended complaint, Judge Van Keulen again held that the customers had adequately alleged claims for negligence as well as violations of the CCPA, the constitutional right to privacy and the unlawful and unfairness prongs of the UCL, rejecting Robinhood’s contention that the customers had failed to show that a breach had even occurred. Judge Van Keulen wrote:
The court disagrees with defendants’ argument that plaintiffs’ allegations are inconsistent or implausible. As stated in the previous order, ‘at this stage of the proceedings, plaintiffs’ allegations that unauthorized third parties were able to access approximately 2,000 Robinhood customers’ accounts and deplete their funds due to Robinhood’s security measures are sufficient.
Judge Van Keulen also found that the changes that the plaintiffs had made to their breach of contract and Customer Records Act allegations were enough to support these previously insufficient claims. In so doing, the judge rejected Robinhood’s contentions that the customers hadn’t shown the stock-trading platform had failed to honor commitments to reimburse them for losses from unauthorized account activity or put the company on adequate notice of the specific conduct at issue in their complaint. The judge wrote:
The court finds that plaintiffs’ allegations are sufficient to give defendants notice of the particular misconduct so that they can defend against the charge and not simply deny that they have done anything wrong.
Judge Keulen also denied Robinhood’s bid to dismiss of the customers’ claims for relief for alleged noneconomic losses tied to their breach of contract and CRA claims, concluding that “allegations regarding future expenses and time, lost time, loss of sensitive personal information, and loss of control over plaintiffs’ identity are sufficient to allege cognizable harm” necessary to move forward. The judge added:
Given the allegations and the lost time and expenses plaintiffs allege that they have already incurred due to the data breach, the court finds that future expenses and time is not too speculative to constitute cognizable injuries at the pleading stage.
However, Judge Van Keulen found the plaintiffs hadn’t completely fixed the CLRA, fraud-based UCL and FAL claims that the judge ruled to be insufficient in her May decision. Noting that it was a “close call,” the judge ultimately sided with Robinhood’s argument that the plaintiffs had failed to provide enough specifics to support their claim that they had relied to their detriment on Robinhood’s representations about the strength of its data security and its customer reimbursement policies. The judge said:
Plaintiffs do not allege which documents or statements plaintiffs may have seen while setting up their accounts or what they may have come across while browsing Robinhood’s website, adding that while plaintiffs don’t need to “recall and specify precisely” which statements they saw or relied upon, their allegations still fell short.
However, Judge Van Keulen did gave the plaintiffs another opportunity to save these claims, granting them leave to amend “in order to further elaborate on plaintiffs’ use of Robinhood’s website” in order to better “satisfy the balancing requirements of providing sufficient notice to defendants” about the allegations they are facing.
The customers are represented by Kevin Osborne, Julie Erickson and Elizabeth Kramer of Erickson Kramer Osborne LLP. The case is Siddharth Mehta et al. v. Robinhood Financial LLC et al. (case number 5:21-cv-01013) in the U.S. District Court for the Northern District of California.
There are several other class lawsuits pending against Robinhood for various other issues, one of which Beasley Allen lawyers are handling as part of the leadership of the class case involving Robinhood’s failure to provide an adequate platform for its trading customers, causing Robinhood’s trading system to fail locking out its customers stock trades on one of the busiest days in stock trading history. James Eubank, in our Consumer Fraud & Commercial Litigation Section, is handling that case, along with other firms across the country in California Federal Court. We will keep our readers posted on this case and others involving Robinhood. Stay tuned!
Class Action Settlements
There have been a large number of settlements recently in the ongoing class action litigation. We will mention several of the more significant ones below.
$95 Million Settlement Ends Investors’ Bribery Lawsuit
A proposed class of Cognizant investors have asked a New Jersey federal judge to preliminarily approve a $95 million settlement that would resolve claims that the company and certain executives bribed officials in India for permits to build a facility in an area where they had enjoyed tax breaks and labor benefits.
The U.S. Securities and Exchange Commission and federal prosecutors in their own suit have said one-time executives authorized a contractor to pay a senior government official in Tamil Nadu, India, to secure a planning permit needed for construction of Cognizant’s 2.7 million-square-foot office campus in Chennai, India.
Cognizant’s investors claim in their suit that the company’s stock price fell by more than 13%, or $7.29 per share, when the company told them it was investigating whether it violated the federal Foreign Corrupt Practices Act in connection with its facilities in India.
Federal prosecutors had also filed criminal charges relating to the alleged bribery scheme. The SEC action has been paused until the criminal case is resolved, and a limited stay of discovery in the investors’ suit was granted in July pending the resolution of criminal charges. U.S. District Judge Esther Salas in June 2020 denied three separate motions to dismiss the proposed securities class action against the firm and the two individual defendants, ex-Cognizant Technology Solutions Corp. president Gordon Coburn and the company’s erstwhile chief legal and corporate affairs officer Steven E. Schwartz.
The investors are represented by John Rizio-Hamilton, Abe Alexander and Jesse Jensen of Bernstein Litowitz Berger & Grossmann LLP, and Michael B. Himmel and Michael T.G. Long of Lowenstein Sandler LLP.
The case is In re: Cognizant Technology Solutions Corporation Securities Litigation (case number 2:16-cv-06509) in the U.S. District Court for the District of New Jersey.
Investors $54 Million Settlement With Comerica
U.S. District Judge Dolly M. Gee has given initial approval to the $54.2 million settlement that a proposed class of investors reached with Comerica Bank. The investors in a suit accused the bank of turning a blind eye to an alleged Ponzi scheme by Woodbridge Group.
The multimillion-dollar settlement resolves claims for nearly 8,000 Woodbridge investors. About 61% of the class are members of the Woodbridge Liquidation Trust, and the rest are individual investors, according to the motion for approval. Judge Gee found that the class claims all arise from Comerica’s alleged conduct in aiding and abetting the Ponzi scheme and seeks redress for lost investments.
The agreement includes payouts to investors based on a formula that includes the investor’s outstanding unpaid principal minus all pre-bankruptcy distributions, and would cover a period from July 1, 2012, to Dec. 4, 2017, which was just before Woodbridge filed for bankruptcy. The settlement is for the limits of Comerica’s insurance coverage.
The investors moved for class certification in April and accused Comerica of aiding and abetting the Woodbridge scheme by ignoring Woodbridge principal Robert Shapiro’s history of fraud, notice of investigations by regulators and alerts by its own fraud detection system in order to hang on to the nearly $1.7 billion in business the alleged scheme brought to the bank.
The investors are represented by Daniel C. Girard, Jordan Elias, Trevor T. Tan and Makenna Cox of Girard Sharp LLP; Michael C. Dell’Angelo and Barbara A. Podell of Berger Montague; Steven J. Toll of Cohen Milstein Sellers & Toll PLLC; Harley S. Tropin of Kozyak Tropin & Throckmorton; Jeffrey C. Schneider, Lawrence A. Kellogg and Jason Kellogg of Levine Kellogg Lehman Schneider & Grossman LLP; Jeffrey R. Sonn of Sonn Law Group and Betsy C. Manifold of Wolf Haldenstein Adler Freeman & Herz LLP.
The case is In Re: Woodbridge Investments Litigation (case number 2:18-cv-00103) in the U.S. District Court for the Central District of California.
$66.4 Million CannTrust Shareholder Settlement
A New York federal judge has given preliminary approval to a CA$83 million ($66.4 million) settlement agreement in a class action accusing cannabis company CannTrust Holdings Inc. of keeping shareholders in the dark about compliance issues with its facilities.
U.S. District Judge J. Paul Oetken said in his order that the court would likely be able to approve eight proposed settlements as they relate to a consolidated investor class action as fair and reasonable under the Federal Rules of Civil Procedure. He scheduled a settlement hearing for Dec. 2.
Judge Oetken also preliminarily certified a settlement class consisting of people and entities that purchased publicly traded common stock of CannTrust Holdings Inc. on any U.S.-based trading platform from June 1, 2018, through March 31, 2020. It also includes those who acquired the stock because of offering materials connected to the company’s second public offering in May 2019.
CannTrust’s plan under Canada’s Companies’ Creditors Arrangement Act, under which the proposed settlements will be implemented, provides for the restructuring of CannTrust, so it can exit its insolvency proceedings. The plan also provides for the handling of unsettled claims related to the alleged wrongdoing in the litigation, according to the investors’ memo.
The lawsuits were filed against CannTrust after Canadian health regulators revoked its marijuana licenses, which have since been reinstated. Investors sued CannTrust in July 2019 after the company revealed it was facing a possible regulatory death sentence from Health Canada, which found marijuana being grown in unlicensed rooms at its facilities.
Investors in the consolidated suits are represented by James W. Johnson, Michael H. Rogers, David J. Schwartz and James T. Christie of Labaton Sucharow LLP. The case is In re: Canntrust Holdings Inc. Securities Litigation (case number 1:19-cv-06396) in the U.S. District Court for the Southern District of New York.
$27.5 Million Settlement In Insurance Scam Suit
A Florida federal judge has granted preliminary approval to a $27.5 million settlement ending a class suit accusing a Tampa-based health carrier of running a $150 million scam to get consumers to buy shoddy insurance policies.
Defendant Health Insurance Innovations has announced that it will be almost entirely discontinuing the sale of limited benefit indemnity plans like those at issue in this suit, which the plaintiffs claim cost hundreds of dollars a month in premiums but covered almost none of their medical expenses.
Under the terms of the settlement, Health Insurance Innovations will require agents to record and maintain all sales calls; engage outside vendors to conduct secret shopper investigations to detect deceptive or fraudulent sales practices; place conspicuous disclaimers on its website stating that the limited benefit indemnity products are not major medical insurance and are not compliant with the Affordable Care Act; and develop a disciplinary process for agents who mislead customers about coverage.
Judge Singhal set a final approval hearing for the settlement for March 31, 2022. The suit filed in June 2019 targets Health Insurance Innovations, its subsidiary Health Plan Intermediaries Holdings LLC, and their founder and former President Michael Kosloske. All three defendants are included in the settlement.
The customers allege the defendants either directed or at least aided a conspiracy with Simple Health Plans LLC, which misled them and tens of thousands of other customers into buying useless insurance plans. Simple Health is not named as a defendant. The consumers allege the defendants violated multiple provisions of the Racketeer Influenced and Corrupt Organizations Act, and they assert common law counts alleging breach of fiduciary duty and unjust enrichment.
The plaintiffs are represented by Jason K. Kellogg, Jeffrey C. Schneider, Lawrence A. Kellogg and Victoria J. Wilson of Levine Kellogg Lehman Schneider & Grossman LLP and Jason R. Doss of The Doss Firm LLC.
The case is Elizabeth E. Belin et al. v. Health Insurance Innovations Inc. et al. (case number 0:19-cv-61430) in the U.S. District Court for the Southern District of Florida.
Novo Nordisk To Pay $100 Million To Settle Investor Class Action
Novo Nordisk 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 suit was brought by a group of pension funds in New Jersey federal court. The funds claimed Novo Nordisk misled them about using pharmacy benefit manager, or PBM, rebates to bolster sales of its drug Tresiba.
The company allegedly paid the rebates to ensure that the medicine appeared on drug stores’ lists of recommended products, known as formularies.
The plaintiffs sought to represent a class of those who bought Novo Nordisk’s American depositary receipts — essentially, stock in a non-U.S. company — between Feb. 3, 2015, and Feb. 2, 2017. U.S. District Judge Brian R. Martinotti certified a class of investors.
The retirement funds filed the suit in 2017, saying Novo Nordisk executives, such as former CEO Lars Rebien Sørensen, misled investors holding its ADRs, telling them the company would meet modest sales goals and issuing glowing financial reports when the insulin maker knew the revenue numbers were propped up by a scheme to collude with its competitors to raise prices.
The retirement funds are represented by Bernstein Litowitz Berger & Grossmann LLP, Carella Byrne Cecchi Olstein Brody & Agnello PC, Seeger Weiss LLP, Robbins Geller Rudman & Dowd LLP and Saxena White PA.
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.
THE CONSUMER CORNER
Consumer Reports Attributes 7 Infant Deaths To Improper Use Of Boppy Pillows
A new Consumer Reports analysis has revealed that improper use of Boppy nursing pillows and infant loungers have led to seven infant deaths. The deaths and one injury have all occurred since the federal Consumer Products Safety Commission (CPSC) warned caregivers not to let infants sleep unattended on pillow-like products a year ago, Consumer Reports said. The lounging pads are for babies to sit or lie on while awake while nursing pillows ease breastfeeding. But babies can roll over, or their heads could fall in a way that blocks their airway, suffocating them. And Consumer Reports found that’s exactly what happened to seven infants in the recent past.
The Consumer Products Safety Commission’s warning back in October 2020 had involved at least 28 infant deaths between 2021 and 2018 of all brands. But that Consumer Reports said deaths since then had all been with Boppy products. The CPSC told ABC News that it’s considering legal action. Oriene Shin, policy counsel for Consumer Reports, in a statement, said:
It’s been 10 months since the CPSC’s warning. Clearly, whatever steps the company is taking for safety are insufficient. Infants continue to die, and every day that passes without stronger action is another day a terrible tragedy could happen.
Boppy has often emphasized that babies should not be put down to sleep or be unattended in one of their pillows or loungers. In June the company reiterated that message as part of National Safety Month, calling on parents and caregivers to take the “Boppy Pledge,” promising to use the products for “adult-supervised awake time only and to ask others to do the same by sharing the pledge with their peers, family members, child-care providers and others,” the company said in a statement. A company spokesperson also responded directly to Consumer Reports. Boppy marketing vice president Amy St. Germain told Consumer Reports:
We have long provided clear and unequivocal warnings and instructions for safe usage on all products. We have always stressed that our products are for awake time only. And, as clearly noted on all products, packaging and promotional materials, infants should not be unattended or left to sleep on or with any Boppy product.
But Consumer Reports’ believes more concrete action and steps were clearly needed. In that regard, Shin said:
Parents and caregivers — Boppy’s customers — need answers. What concrete steps will Boppy take to keep babies safe? Will Boppy make design changes to prevent the unimaginable from happening? Right now, Boppy isn’t saying, even in light of the recent infant deaths. If the company won’t take action on its own, the CPSC should require it.
The company is working with the CPSC “to find a solution that helps make babies safer,” St. Germain told Consumer Reports. “Of course, even one infant death is too many, and we are devastated to hear of these tragedies.”
Source: Consumer Reports
Terminix Can’t Vacate $2.7 Million Award
The Eleventh Circuit Court of Appeals has upheld a $2.7 million arbitration award against Terminix, finding that the company failed to properly respond to a motion to confirm the award by a couple whose Alabama home was infested by termites.
Two days after winning the arbitration in 2019, Ann McLaurin and Lynne Fitzgerald filed a complaint to confirm the award. According to the panel’s ruling, issued on September 17, Terminix didn’t respond to substantively by the judge’s deadline. While Terminix argued that it had 90 days to file its motion to vacate the award under the Federal Arbitration Act (FAA), the panel found that the law doesn’t restrict judges from setting a faster schedule or ruling on a competing motion to confirm an arbitration award. The appeals court panel wrote:
The statutory deadline for giving notice of a motion to vacate sets an outer bound; it does not impose a three-month delay for the benefit of an arbitration’s loser.
The FAA gives an arbitration winner up to a year to file a motion to confirm the award and the loser up to three months to challenge it, the panel said. In this case, a complaint was filed by the winners to confirm the amount, and Terminix didn’t respond to the complaint substantively by the district judge’s deadline, according to the panel’s ruling. Instead, Terminix filed a four-page response that the panel called “baffling.” In that regard, the panel wrote:
Rather than make substantive objections to the motion to confirm, seek an extension to oppose it or ask the district court to wait to rule on it, Terminix filed a four-page brief, arguing only that the motion to confirm was filed too soon.
Terminix later filed its substantive motion to vacate, and it argued that the statute’s three-month deadline applied. But the district court judge confirmed the award and struck Terminix’s motion to vacate.
U.S. District Judge Jeffrey U. Beaverstock properly confirmed the award and rejected the motion to vacate it, the panel concluded, as “a district court is the master of its own docket, and the parties ignore its orders at their peril.” However, the panel urged district judges to set clear deadlines for responses and the motion to vacate when faced with similar situations in which a motion to confirm is filed first.
In the underlying case, McLaurin and Fitzgerald, retired educators, sued Terminix after termites were discovered in a house the couple had bought on Dauphin Island, Alabama. An arbitrator awarded the couple more than $2.7 million after Terminix couldn’t provide evidence that it conducted the initial inspection and annual follow-up inspections it had agreed to provide.
Lynne Fitzgerald and Ann McLaurin are represented by Thomas F. Campbell and J. Christopher Cochran of Campbell Law PC and Adam Matthew Milam of Milam & Milam LLC. These lawyers did their usual outstanding work in this matter.
The case is Lynne Fitzgerald et al. v. Terminix International Co. LP et al. (case number 20-12904) in the U.S. Court of Appeals for the Eleventh Circuit.
Amazon Drops Arbitration From Terms Of Service
With little fanfare, Amazon dropped the arbitration clause from its terms of service earlier this summer. The company announced that it would no longer require users to arbitrate claims. Instead, Amazon customers must now have their claims “adjudicated in state or [f]ederal courts in King County, Washington,” where the company is located, according to Law360. It’s too early to tell the full effect of Amazon’s decision on the use of arbitration by other companies.
We have learned by experience that arbitration has been a bar to many successful consumer lawsuits. This has allowed badly behaving companies all too often to hide their wrongdoing from the public. When a consumer’s claim goes through arbitration, they “prevail less often and win smaller awards” and “most arbitration clauses prohibit consumers from joining together to bring their complaints as a group, or ‘class,’” as Consumer Reports summarizes findings from studies on the process.
It should be noted that the change of Amazon’s terms of service also includes an agreement that consumers and the company waive any right to a trial by jury, as pointed out by The Verge. Jury waiver provisions are another legal strategy employed in other industries but not enforced in all jurisdictions nationwide.
The change in Amazon’s dispute resolution policy comes as the company faces more than 74,000 individual arbitration claims by customers who allege privacy violations due to the company’s Alexa voice-activated speakers improperly collecting the customers’ communications.
Source: Law360.com, Consumer Reports and The Verge
Lawsuit Classifying NCAA Student-Athletes As Employees Under FLSA Proceeds
After the U.S. Supreme Court issued a shakeup this past June in National Collegiate Athletic Association v. Alston et al., 594 U.S. (2021) and subsequent blitz of precedent-setting sponsorship deals transpired, it remains to be seen whether antitrust is the best avenue to challenge amateurism restrictions on student-athlete compensation. A group of current and former student-athletes from Villanova, Fordham, Sacred Heart, Cornell and Lafayette may offer an alternative. That is, if their lawsuit contending that NCAA student-athletes were employees and therefore owed minimum wage under the Fair Labor Standards Act (FLSA) and relevant state employment law is successful.
In a memorandum issued Aug. 25, U.S. District Court Judge John Padova of the Eastern District of Pennsylvania ruled the claims against the schools brought by the student-athlete plaintiffs can proceed. Judge Padova cites the Supreme Court’s June ruling in Alston that held a tradition of amateurism in college sports doesn’t define an economic relationship, so tests for determining the relationship apply. Specifically, Judge Padova novelly applied the Glatt test from the Second Circuit, Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 536-37 (2d Cir. 2016), typically used for evaluating when an intern should be considered an employee based on which party benefits the most from the relationship.
The memorandum reflects a thorough consideration of each of the seven factors under the Glatt test wherein Judge Padova’s application of the relevant aggregate balance of the factors determined that plaintiffs plausibly allege their status as employees of the schools. Specifically, Judge Padova found test factors designed to measure the extent to which an internship is related to an intern’s education and the extent to which an internship accommodates an intern’s academic commitments and the intern complements instead of displaces the work of employees particularly persuasive.
Judge Padova also rejected the argument by the NCAA and schools, reproduced in several other NCAA lawsuits, that the athletes were not employees under the U.S. Department of Labor Field Operations Handbook’s declaration of no employment relationship for students in extracurricular activities existing because there was no indication that the schools didn’t pay minimum wage because they were relying on the handbook.
But, student-athletes are “still early in the game,” metaphorically. While the action is allowed to continue, forthcoming analysis of the merits of the challenging employment theory has yet to begin. Several motions to dismiss were filed by defendants, including motions arguing they are not liable as joint employers remain pending. Plaintiffs’ Motion for collective action certification to represent 170,000 plus individuals also remains unaddressed by the Court, pending since its filing in April 2020.
Apart from the irony that Villanova, a prominent basketball school, may ultimately have the school’s greatest impact on college sports in recent times through its football program, this seminal case’s outcome will be significant because the FLSA has significant power beyond what antitrust cases can offer. A ruling granting student-athletes employment rights under the FLSA would give them a variety of legal protections within the employment and labor law spheres that likely would completely change the nature of college athletics or threaten its very existence.
Regardless, the case signals the mindset of the courts and their endorsement of the continued erosion of the amateur status of college student-athletes. Accordingly, Beasley Allen lawyers in our firm’s Consumer Fraud & Commercial Litigation Section will continue to monitor this litigation. They will provide updates of significant developments as it relates to potential and future FLSA claims and litigation. If you have any questions, contact Lauren Miles at 800-898-2034 or by email at [email protected].
The case is Ralph Johnson v. The National Collegiate Athletic Association et al. (case number 2:19-cv-05230) in U.S. District Court for the Eastern District of Pennsylvania.
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.
PRACTICE TIPS OF THE MONTH FOR TRIAL LAWYERS
Practice Tips: Zoom Depositions
Video depositions have certainly become more prevalent due to the pandemic, and it appears they are here to stay. The video depositions lower costs for lawyers and clients – no more traveling to far-away locations and renting space. These depositions are also time-efficient since lawyers don’t have to lose working time to drive or fly to the deposition. Now that we have been practicing during the COVID-19 pandemic for a year and a half, Beasley Allen lawyers have gained quite a bit of experience conducting video depositions over Zoom or other videoconferencing platforms. Lawyers in our Mass Torts Section offer the following practical tips for a successful video deposition:
- Choose court reporters and videographers with experience handling Zoom depositions.
- If you have any potential Internet connection issues, call in on the phone rather than using computer audio. If the Internet fails, you can still be heard via the phone connection.
- Keep your email closed, and turn off all notifications since those notifications will come through the same speakers you are talking over.
- Keep everything closed except a desktop folder with your exhibits. If you have multiple screens, keep your Zoom on one screen (the one with the camera) and the open exhibit(s) on another.
- Open the exhibits that you will use as tabs of the same pdf, so they are ready. In Adobe (for Windows), go to Edit > Preferences > General > Select “Open documents as new tabs in the same window” > OK. You will have to re-start Adobe after making this change.
- Consider highlighting the portions of the document you want the witness to focus on ahead of time if there are just a few points that you are trying to make with a document.
- If you are on a tight time limit, remember that showing documents using the screen share feature can be slow sometimes, so plan for additional time.
- If you need to speak to your client or co-counsel during a break, do so on a different connection. e., if the deposition is on Zoom, step out of the room and speak on the phone.
- At the beginning of the deposition, ask the witness to identify all persons present with them.
- Likewise, ask the witness to identify any electronic devices with them and instruct them not to use those devices or look at them during the deposition.
If you need more information or have recommendations for video depositions, contact Liz Eiland, a lawyer in the Mass Torts Section, at 800-898-2034 or email [email protected].
A large number of safety-related recalls were issued during September. 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.
BEASLEY ALLEN EMPLOYEE SPOTLIGHTS
Evan Allen, a lawyer in Beasley Allen’s Mobile office, works in the Personal Injury & Products Liability Section. He mainly handles workplace product liability cases. Evan has handled and settled many cases involving defective machine design, inadequate guarding and the removal of safety devices. Evan has also handled negligent installation and maintenance cases involving tires and heavy trucks.
Most recently, Evan was the lead lawyer for an injured machine operator who received a $774,000 verdict after five days of trial. The verdict was for John Dees, who suffered permanent injuries while working for Onin Staffing, LLC at Tenax Manufacturing Alabama, LLC. John was injured on a machine manufactured by Tenax SPA, an Italian Company. The jury determined Tenax SPA acted wantonly due to its failure to guard against the machine’s known and highly hazardous defect. Tenax SPA designed the machine with an inadequate guard, prohibited by both U.S. and European design standards.
As a child, Evan said he did not want to be a lawyer. He said, “I wanted to work on an offshore fishing boat. I saw how much my dad worked [as a lawyer], and it seemed boring and stressful.” However, as he got older, Evan changed his mind. He says:
I learned more about what [my dad] did and saw his passion for it. I worked for the firm for a summer while in college and sat in on depositions, hearings and trials. I was hooked by the competitiveness and that at the end of the day, saw that there were winners and losers. I decided I wanted that; a job where you have to constantly compete, and if you are successful and win, you make meaningful impacts on people’s lives.
Evan has worked with the firm now for about 20 years. He first began as a mail clerk and runner and worked two summers as a law clerk while attending Faulkner University’s Thomas Goode Jones School of Law on the Eagle Scholarship. He earned his J.D. from Jones in 2012 and began working full-time as a lawyer at the firm. Evan graduated from Birmingham-Southern College with an undergraduate degree in political science.
An award-winning lawyer, Evan was selected to the 2020 Midsouth Super Lawyers “Rising Stars” list. The distinction recognizes the top up-and-coming lawyers – those who are 40 years old or younger or have been practicing 10 years or less. Evan volunteers his time and is very active in the Montgomery County Volunteer Lawyer Program, receiving the 2016 and 2017 Medal of the Samaritan awards in recognition of his outstanding pro bono legal services. He provided over 50 hours of pro bono service and was also recognized by The Alabama Access to Justice Commission for that work.
Evan says meeting people from all backgrounds and getting to know them on a personal level is what Evan enjoys most about practicing law. He says: “My goal is that by the time a client’s case is resolved, they consider me a friend. There are very few past clients that I don’t keep in touch with regularly.”
Evan is a member of the Alabama State Bar. He serves as President of the Alabama State Bar Young Lawyers Section and is on the Digital Communications Committee and Workers’ Compensation Task Force. He previously was a member of the 2017-2018 Pro Bono Committee. Evan is an alum of the Alabama State Bar’s Leadership Forum (Class 14) and now serves on the Leadership Forum Selection Committee. He also serves on the Alabama Head Injury Foundation Junior Board Chapter and the YMCA Boys Work Committee, which raises money for the Montgomery YMCA, particularly the youth football leagues.
Evan is complimentary of our firm’s leaders, and he says their unique traits, interests, and talents help set Beasley Allen apart from other firms. He says:
Our firm’s leaders enjoy their work and take it seriously. They work hard and with integrity and trust others at the firm to do the same. They have great focus and can carry out long-term plans but are not too rigid to evolve. They are also good at identifying individual strengths and placing lawyers and employees in the right roles.
Evan and his wife, Cameron, have one son. They attend the Church of the Ascension. In his spare time, Evan enjoys saltwater fishing, hunting and SCUBA diving.
Robin Parkhurst is an integral member of our Accounting team, where she works as a Payroll Accountant. She is responsible for handling various tasks, including processing payroll for all firm employees, employee reimbursements, bank reconciliations, and assisting the team with projects as needed. Robin originally started with the firm in 2013, left in 2017 to relocate to Ashford, AL, and returned to us in 2018. We are fortunate to have her with us.
Robin and her husband, John, have been married for nine years. They have four children, ages 26, 24, 17, and one nine-year-old grandchild. Robin and her family live in the country, surrounded by cattle, with three Boston Terriers and one cat.
Robin loves spending time with her family, fishing, traveling, and going to the beach. She has recently started learning photography, a newfound hobby. Her favorite thing about working at Beasley Allen is the friendly and caring environment. She says that Beasley Allen is like a family and that the firm truly cares about its employees. Robin says that she is blessed and grateful to work at Beasley Allen. We are most fortunate to have Robin with the firm. Robin has an important position in the firm, and she does her job extremely well.
Valerie Scroggins works in our Fraud & Commercial Litigation Section as a Legal Secretary to Larry Golston, Jr. and Leon Hampton, Jr., where she supports the team by managing calendars that help keep everyone on track, sorting the mail, scanning pertinent documents, and maintaining client files. She also provides assistance and support wherever she is needed. Valerie celebrates 21 years with the firm this September. She is a vital part of our team, and we are fortunate to have her with us.
Valerie and her husband, Mike, have been married for almost 19 years, and they have five children, 13 grandchildren, three great-grandchildren, and one great-grandson on the way. Valerie and Mike attend Heritage Baptist Church in Prattville, where they volunteer work in the nursery and vacation bible school. Valerie’s faith and her family are very important to her, which is why both are at the very center of her life. She says that time spent with her family is a lot of fun and that there is never a dull or quiet moment.
In her spare time, she enjoys going to ball games, birthday parties, traveling, visiting state parks with waterfalls, cooking, and quiet moments with her husband sitting on their back porch. Valerie says her favorite thing about working at Beasley Allen is the people she works with and the clients. She takes pride in being part of the team and says that “it’s a privilege to help clients.”
Valerie is a hard-working employee and is dedicated to helping clients represented by Larry and Leon receive justice. We are blessed to have her with the firm.
Casey Sheets is a Staff Assistant in our Mass Torts Section, where she focuses primarily on ordering medical records for clients. She also assists with other time-sensitive projects as needed. Casey has been with the firm since July 2, 2018.
Casey was born and raised in the suburbs of Indianapolis, IN, and lived there up until she was 21 years old. Her parents have been together for 35 years, and she is the youngest of two half-sisters, one half-brother, and she is an aunt to 14 nieces and nephews. She was on active duty in the United States Air Force for nine years, serving a one tour deployment in the Middle East for seven months. Casey and her spouse recently celebrated their first wedding anniversary, and they have four dogs and one cat.
Casey says she loves to read and that she says that she has read nearly 30 books over the past year. Early morning walks around her neighborhood are where she meditates before starting the day, and there are evening trips to the gym “to decompress.” Casey says she appreciates and values all of the many benefits our firm offers.
Casey has an important position with the firm, and she does that job very well. We are fortunate to have her with us.
Beasley Allen’s Mobile Office Partners with Mobile Bar Association To Help Hurricane Ida Victims
The firm’s mission of “helping those who need it most” often extends beyond our clients and into our communities. Beasley Allen’s Mobile office recently demonstrated this principle at work with our lawyers and support staff helping their neighbors along the Gulf Coast following Hurricane Ida.
On Aug. 29, Hurricane Ida made landfall in Louisiana as a Category 4 storm with 150 miles per hour winds. At least 26 people were killed in the storm in Louisiana, and it knocked out power to more than a million people, including the entire city of New Orleans, the Associated Press reported.
The Mobile Bar Association quickly organized efforts to help meet the needs of those impacted by Ida. Frank Woodson, our Mobile Managing Attorney, encouraged lawyers and staff to support a can food drive organized by the Mobile Bar Association. The office donated $1400.00 in can goods. “We are glad to support the Mobile Bar Association’s efforts and live out our mission of ‘helping those who need it most,’” Frank said.
The Mobile Bar Association was founded in 1869. It is one of the oldest Bars in Alabama and one of the oldest associations in the United States. The Mobile Bar Association works to support over 1,000 members in their area of practice, promote justice and public service. The organization does this by elevating the legal profession to the highest possible standard, providing professional development, and cultivating networking opportunities to encourage a spirit of goodwill among its members.
Beasley Allen opened its Mobile office in January with a primary focus on partnering with local lawyers working on product liability claims that involve severe injury or death. Our Mobile lawyers also work on opioid litigation and pollution cases for Alabama cities. The firm’s office is located at 301 St. Louis Street in downtown Mobile near the federal and state courthouses.
Sources: Associated Press, Mobile Bar Association
Kate And Gibson Vance Establish Troy University Student Emergency Fund
Gibson Vance, and his wife Kate, donated $100,000 to Troy University to establish the “Kate and Gibson Vance Student Emergency Fund.” The fund will provide financial assistance to students on the Troy Campus who experience an unexpected financial burden and need help to remain enrolled in classes.
“I went to school on a Pell Grant, student loans, and work-study. If something went wrong, I didn’t have the extra money to pay for it,” Gibson said. “This fund will help students be able to weather those difficult situations.”
Troy will form a committee to establish criteria and review student applications. The Troy University Foundation will administer the funds. Students will apply to demonstrate a specific financial need to qualify for the grant money.
“You never know when you may experience emergencies and unexpected expenses, whether that be your car breaking down, a serious illness, or having a family crisis that changes your financial situation,” Kate said. “We want these students to be able to continue their education even when unexpected emergencies arise that are beyond their control.”
Gibson, a 1987 graduate of Troy University, has a long-standing relationship with his alma mater. In February 2012, Alabama Gov. Robert Bentley first appointed Gibson to Troy University’s Board of Trustees. Trustees serve for 12 years. The Board elected Gibson to serve as its President Pro Tem in August 2019.
In 2018, Gibson received the Troy University Distinguished Alumni of the Year award. More recently, the Vances established the Kate and Gibson Vance Study Abroad Scholarship, providing funds to offset expenses for students who wish to expand their learning experience beyond the classroom.
Leon Hampton Selected As Bar Commissioner
Beasley Allen lawyer Leon Hampton has been selected to serve on the Alabama State Bar Association’s Board of Bar Commissioners, the governing and policy-making body of the Alabama State Bar. Commissioners serve three-year terms beginning at the annual meeting in July following the member’s election or selection.
Leon graduated from Alabama A&M University in 2010 and received his law degree from Samford University’s Cumberland School of Law in 2013. He has served in numerous leadership positions with the Alabama State Bar, including the Committee on Disciplinary Rules and Enforcement, the Leadership Forum, and an ex officio executive council member. He also serves as president of the Alabama Lawyer’s Association, the oldest and largest minority bar association in Alabama.
Additionally, Leon is a member of the Montgomery County Bar Association, the Alabama Lawyer’s Association, and The Hugh Maddox American Inn of Court, an organization designed to improve trial advocacy nationwide through mentoring groups.
Leon is a devoted River Region community member and serves as a board member for Legal Services of Alabama, Salvation Army, the Mercy House, and Mentors of Montgomery.
Leon joined the firm in 2017 as a lawyer in our Consumer Fraud & Commercial Litigation Section, where he handles whistleblower, workers compensation, hostile workplace, bad faith insurance, and employment discrimination claims. Since joining our team four years ago, Leon has helped secure more than $22 million in settlements and verdicts for our clients.
Gavin King Named To Executive Committee For ASB’s Young Lawyer Section
The Alabama State Bar selected Gavin King, another Beasley Allen lawyer, to serve on the Young Lawyers Section’s Executive Committee for the 2021-20221 term. As the official statewide organization of lawyers in Alabama, the Alabama State Bar established the Young Lawyers Section to provide new attorneys with the tools to navigate the early years of their careers. Gavin, a lawyer in our firm’s Mass Torts Section, was nominated to serve on the committee by a current Executive Committee member. Gavin had this to say:
The Executive Committee of the Alabama State Bar’s Young Lawyers’ Section has a long tradition of creating avenues for our state’s younger lawyers to live out the state bar’s motto: “Lawyers render service.” I’m both honored and humbled to have been chosen to serve on this committee and to have the enthusiastic support of my colleagues at Beasley Allen. I’m looking forward to doing what every member of the Beasley Allen team does best: rolling up my sleeves and getting to work.
Gavin began working as a law clerk during law school in Beasley Allen’s Personal Injury & Product Liability Section. He now works as a lawyer in our Toxic Torts Section, where he helps represent the State of Alabama in the opioid litigation. He also represents individuals injured as a result of nursing home abuse or neglect.
Gavin is a graduate of Mississippi State University and received his law degree from Samford University Cumberland School of Law. He was a member of the National Trial Team, Christian Legal Society, and the Black Law Students Association.
Gavin says he felt called to pursue a career in law to “advocate on behalf of the oppressed, the downtrodden, and the forgotten” — a desire that resonates with Beasley Allen’s mission of “helping those who need it most.”
Gavin is a member of the Alabama State Bar and the Georgia State Bar. He is also a member of the Alabama Association for Justice Emerging Leaders.
FAVORITE BIBLE VERSES
Beasley Allen lawyer Navan Ward furnished several of his favorite Bible verses for this issue. Navan says the following scriptures are ones that he lives by and depends on, on a daily basis with all of the responsibilities/obligations that he has. Navan says Romans 8:31 is his daily motto, while 2 Timothy 1:7 has helped him through the pandemic. According to Navan, Proverbs 1:23 has been an important verse for him as he deals with more people in his position as President of AAJ. And he adds that 1 Peter 5:7 is what he has leaned on for all of the issues that he has faced over the last several years.
If He is for us, then who can be against us. Roman 8:31
For God hath not given us the spirit of fear but of Power and of love and of sound mind. 2 Timothy 1:7
Above all else, guard your heart, for everything you do flows from it. Proverbs 1:23
Casting all your care upon Him for He careth for you. 1 Peter 5:7
Danny Cox, a State Farm Insurance Co. agent in Montgomery ( [email protected]), sent us his favorite Bible verse for this issue. Danny had this to say:
I happened to be thinking recently on Daniel chapter 3 in which Nebuchadnezzar threw Shadrach, Meshach and Abednego in the fiery furnace for refusing to bow down to the king and reject God.
Most striking to me is how “Shadrach, Meshach and Abednego replied to him,
King Nebuchadnezzar, we do not need to defend ourselves before you in this matter. If we are thrown into the blazing furnace, the God we serve is able to deliver us from it, and he will deliver us from your Majesty’s hand. But even if he does not, we want you to know, we will not serve your gods or worship the image of gold you have set up. Daniel 3: 16-18
But even if he does not! This is perhaps one of the most profound statements of faith in the entire bible. Many people misunderstand faith as effectively praying or fasting or somehow persuading God to change their circumstance in life. Real faith is being willing to accept the will of God in your life….even to the point of death. May God grant us a level of faith like that of these three men!
Beasley Allen lawyer Mike Andrews furnished several of his favorite Bible verses for this issue. Mike says:
It is easy to get discouraged when times are tough and the struggle is real. However, none of us should expect or even want a life free of adversity and challenge. Just like physical muscles are built through exercise and exertion, life’s challenges build confidence and competence and strength. Try to remember that everyone that you meet is going though something difficult so be kind and considerate of others. Often those who seem to “make it look easy” are not free from adversity, they have just endured so much that they are now confident they will survive.
Blessed is the one who perseveres under trial because, having stood the test, that person will receive the crown of life that the Lord has promised to those who love him. James 1:12
Be strong and courageous; do not be frightened or dismayed, for the Lord your God is with you wherever you go. Joshua 1:9
Be strong and bold; have no fear or dread of them, because it is the Lord your God who goes before you. He will be with you; he will not fail you or forsake you. Do not fear or be dismayed. Deuteronomy 31:6,8
Consider it pure joy, my brothers and sisters, whenever you face trials of many kinds, because you know that the testing of your faith produces perseverance. Let perseverance finish its work so that you may be mature and complete, not lacking anything. James 1:2-4
President Biden Mandates COVID-19 Vaccine For Millions Of Workers
President Joe Biden issued a sweeping set of new COVID-19 vaccine mandates on Sept. 9 that covers millions of people, making the vaccine mandatory for federal workers and contractors, companies with more than 100 employees and facilities that receive Medicare or Medicaid funding.
A surge of new COVID cases driven by the “highly contagious” delta variant of the virus that has overwhelmed hospitals, along with continued resistance to vaccination by all too many folks and a refusal to follow masking requests from a “distinct minority” of the population, prompted the new plan that includes the mandates, entitled “Path Out of the Pandemic.” At the time the plan was announced, nearly 80 million Americans had failed to get the vaccine. At press time, 685,000 Americans had died because of the virus, with numbers still rising.
Roughly 208.3 million people, which is 62.7% of the population, have received at least one vaccine dose. That is about three-quarters of those currently eligible. These figures come from the Center for Disease Control and Prevention. The following is a summary of the mandate:
The first vaccination mandate, a pair of related executive orders, will eliminate an exception to a previous July vaccination mandate for federal employees and contractors that had allowed them to opt out if they wore masks, socially distanced and were tested for COVID at least weekly.
Any of the roughly 2.1 million federal workers who aren’t already vaccinated will have about 75 days to comply or be subject to the usual federal progressive disciplinary process, with exceptions for circumstances such as relevant disabilities or religious reasons.
The broadest mandate directs the U.S. Department of Labor’s Occupational Safety and Health Administration to craft a regulation requiring all businesses with more than 100 employees to mandate vaccinations for their staffs, or have workers show a negative test for the virus at least weekly, which should cover about 80 million people, or two-thirds of all U.S. workers.
The final mandate, to be issued by the Centers for Medicare and Medicaid Services, will require “most” health care facilities that accept funding from Medicare or Medicaid, including hospitals, dialysis facilities, ambulatory surgical settings and home health agencies, to vaccinate their workforces, adding to a vaccine mandate previously issued to 15,000 nursing homes. That will cover about 50,000 providers and more than 17 million workers, the majority of health care workers across the U.S.
The plan will also provide $2 billion under the Defense Production Act to buy and make available rapid COVID tests, supported by major retailers offering tests at cost for the next few months, increase the availability of monoclonal antibody treatments, and provide booster shots for those already vaccinated, beginning in late September.
The National Defense Industrial Association, which represents defense contractors, supported the vaccination mandate in a statement to Law360, saying:
the best scenario for the defense industrial base is to beat COVID and be fully functioning and flourishing. These orders will help us all get there. As we have from the beginning of the pandemic, the National Defense Industrial Association encourages those who work within defense — whether they are our members or not — to follow mandates on vaccines, masks and work protocols.
The American Federation of Government Employees, the largest federal employee union, said in a statement that although it has strongly encouraged its members to get vaccinated, it believed issues like vaccine mandates should be negotiated with its bargaining units.
The president’s mandate has also stirred up a great deal of opposition – most of it in the pollical arena along party lines. Hopefully, the end result will be that many more Americans will get the vaccine.
When you consider that all of us are required by some level of government to do certain things before we can do certain specific things, requiring the mandate isn’t so unusual. For example, one must:
- Get a driver’s license in order to drive a car on the highways.
- Obey speed limit laws on our highways.
- Stop our vehicles for “stop signs” on the highways.
- Obtain a hunting license before being able to hunt wild animals or birds.
- Have a law license and be admitted to the Bar before being able to practice law.
- Have a license to practice medicine as a medical doctor.
I suspect you can think of several other similar requirements enacted and required by the government that individuals have to abide by. Requiring a vaccine to ward off COVID-19 is a health safety measure and is really a matter of life or death. Regardless of political leanings, the battle against the pandemic caused by COVID-19 makes taking the vaccine a no-brainer.
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
I strongly encourage all persons to take one of the available vaccines to combat the pandemic caused by COVID-19. There have been almost 700,000 deaths in our country to date, with more tragic deaths happening daily. Our medical community nationwide has been overworked and has been under severe emotional stress and strain. Our hospital beds are full, and the burden on the system is tremendous.
The medical and scientific communities should be where we get our information relating to COVID-19 and the vaccines. If we had allowed false or misleading information to dictate policy, numerous vaccines that have saved countless lives over the years would never have received public approval. The following is a list of diseases that I easily thought of as this section was being written. The list includes Polio, Tetanus, Rubello, Measles, Whooping Cough (Pertussis), Mumps, Chicken Pox, and Diphtheria. Thankfully, social media wasn’t around as a source of information when the vaccines responsible for combating these diseases were approved.
Taking the vaccine not only protects the person getting the shot, but it also protects family members, co-workers, friends, and other persons with whom you have contact. We are facing a healthcare crisis of enormous proportions, and unless things change, the American people will be dealing with the pandemic for a very long time. Getting through this Fall is critically important.
My prayer is that all persons take the vaccines, follow masking and social distancing requirements, and make America safe again.