The Jere Beasley Report May 2022

CAPITOL OBSERVATIONS

The Face Of The Highest Court In The Land

Judge Ketanji Brown Jackson was confirmed to the U.S. Supreme Court last month in a historic 53-47 vote, as noted by the National Law Journal (NLJ). She serves as the “first” in two capacities on the Court – the first Black woman and the first former public defender. Many believe Judge Brown Jackson’s confirmation comes at just the right time and that its significance permeates more deeply than either of the two “firsts.” By bringing diversity, challenging stereotypes, and increasing transparency of the Court’s work through her well-reasoned, detailed decisions, experts anticipate that Judge Brown Jackson will be pivotal in transforming the Court’s appearance, restoring the public’s trust in the highest court in the land and helping dispel questions regarding its legitimacy.

While the Court’s makeup is more diverse than ever, some of its recent decisions have been hostile to laws and policies designed to ensure equality regardless of race or gender. Such attacks on voting rights and the instruments (the Voting Rights Act) that have helped pave the way for a diverse Court have provoked criticism. There have even been questions raised about the Court’s legitimacy.

Expanding diversity means that the Court’s appearance will more closely resemble the diverse population it governs, driving a shift in perception. Renee Knake Jefferson of the University of Houston Law Center explained to the NLJ that “[s]o much of the Court’s legitimacy is related to the public’s perception of it, but it also has an important role in cultivating what the public perceives as a professional.” For far too long, Americans have accepted that those in authority appear a certain way, mainly as white males donning a black robe. Judge Brown Jackson, joined by three other female justices, including another female of color, will challenge this perception and stereotype. This alone could send a strong enough message that the Court is evolving. Still, expanding diversity means even more.

It also means expanding perspectives on how cases, especially those involving “legal disputes over unlawful searches and seizures, protections against self-incrimination and other rights of the accused come into question,” as University of Georgia law professor Melissa Redmon told Politico. Judge Brown Jackson’s background as a public defender will allow her to provide a unique perspective for the other members to consider, even if they aren’t compelled to depart from their preferred ideology shaping their decisions.

Similarly, as a member of the minority with regard to ideology, Judge Brown Jackson’s decisions may have a limited direct impact. However, given her “judicial methodology,” scholars expect that Judge Brown Jackson’s decisions will inform and persuade – if not her fellow justices – then indeed others such as lower court judges and law and policymakers. During her confirmation hearing, Judge Brown Jackson boldly acknowledged lawmakers’ critiques that her decisions are lengthy. She explained that her methodical process involves walking people through each step of her decision-making. The lengthy decisions offer plenty of food for thought, and scholars expect these decisions to come mainly as dissents, which isn’t necessarily bad. They can be “guiding posts for future decision-making,” Fatima Goss Graves, the president and CEO of the National Women’s Law Center, told Politico about Judge Brown Jackson.

It will be interesting to watch soon-to-be Justice Brown Jackson grow into her own “place” on the Court. Based on her background, experience, and decision-making process, she is likely to make her own path rather than fill a vacuum left by recently departed (Justice Ruth Bader Ginsberg) or departing (Justice Stephen Breyer) members. In the meantime, it is promising to watch history in the making and in the face of so much aggression towards the very mechanisms that made this historical moment possible.

Simply put, the highest court in the land should “look like America” in its makeup. Hopefully, we are finally headed toward meeting that goal!

Sources: National Law Journal and Politico

BIG TRUCK ACCIDENT LITIGATION

Firm Reaches $5.75 Million Settlement Against Trucking Company

The firm’s Chris Glover and Cole Portis reached a $5,750,000 settlement against a trucking company after its driver negligently blocked the roadway, causing a crash that severely and permanently injured our client.

Late one night, our client was driving westbound on a rural roadway to pick up her son. A commercial motor vehicle (CMV) driver was wrapping up a long day of driving with an ill-advised maneuver stopping his tractor and trailer in the eastbound lane and backing across the westbound lanes into his driveway.

Our client crashed into the tanker trailer. The tractor was positioned in the eastbound lane of the roadway in such a manner to make it appear to oncoming motorists as if he was regular traffic traveling east. The darkness, limited effective range of our client’s headlights, and the glare of the CMV’s HID headlights purportedly flashing between low and high beams interfered with our client’s ability to see the trailer’s reflective conspicuity tape at its radically obtuse angle. Our client, who was properly wearing her seatbelt at the time of the accident, had only a few seconds of warning that the CMV driver was blocking the entire eastbound and westbound lanes of traffic with his hazardous materials trailer.

According to the trucking company’s internal documents, it was determined that the CMV driver violated company policy by attempting to park his vehicle at an unapproved parking location. The unapproved parking location was determined to be the root cause of this accident.

Our client sustained serious, permanent, and life-altering injuries resulting from the collision, including multiple open wounds on her head and ear, acute respiratory failure with hypoxemia, and acute brain bleeding. Our client is significantly impaired and is unlikely to make significant improvements in her neurocognitive function. She experiences deficiencies in motor speed, psychomotor speed, reaction time, cognitive flexibility, processing speed, and executive function. Her impaired executive function leaves her unable to make appropriate decisions and requires regular supervision. Her impaired processing speed causes her to have slow response times, and she struggles to follow complicated concepts. She exhibits short-term and long-term memory loss and regularly overestimates her current level of functioning. She also exhibits decreased thought organization during conversational exchanges, wherein she often changes, misunderstands, or forgets finer details.

We argued claims of negligence and wantonness against the trucking company and truck driver for the injuries our client suffered in the accident. We also asserted claims including negligent hiring, training, supervision, and agency claims against the trucking company.

Negligent Hiring, Training At Heart Of Fatal Commercial Trucking Crash

Chris Glover, the Managing Attorney in our Atlanta office, recently filed a trucking lawsuit stemming from an accident in the Birmingham area.  Unfortunately, accidents that result from truck driver error are far too common on America’s roadways.

On July 14, 2021, our client’s decedent was driving a maintenance truck on Pinson Valley Parkway when he ran into the back end of an 18-wheeler flatbed trailer.  He was pronounced dead at the scene.  The driver of the 18-wheeler was uninjured.

At the time of the collision, the defendant driver had slowed his vehicle and was attempting to make a right turn by swinging the 18-wheeler wide and into the left-hand lane, which violates Alabama law.  The defendant driver negligently allowed his vehicle to exit and re-enter his lane of travel, causing the collision.

This motor vehicle accident implicates the defendant driver and the trucking company that employed him.  Trucking companies have a duty to hire, train, and supervise their drivers to ensure that large commercial vehicles like the one involved in this accident are operated in a manner that follows Alabama law and prioritizes the safety of those with whom they share the road.  The defendant trucking company failed at this duty, and as a result, a man’s life was tragically cut short.

Chris Glover has the privilege of representing the family of this victim and is humbled at the opportunity to hold the negligent trucking company and its driver accountable.  If you have a question about this or any other trucking case, contact Chris Glover. 

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 litigation. Most truck cases involve speed, inattention, fatigue, and other driver issues. But there will be accidents where a products liability issue will also be involved in causing the accident.

Greg Allen, the Lead Products Liability Lawyer for the firm, has handled a number of the major truck cases involving defective product issues. We have a team of experienced lawyers making up the Trucking Litigation Team. In addition to Cole and Greg, lawyers on the team are Chris Glover, Evan Allen, Mike Crow, Parker Miller, LaBarron Boone, Ben Baker, Warner Hornsby and Wyatt Montgomery.

AN UPDATE ON MOTOR VEHICLE LITIGATION

Do You Know If Your Tires Have Been Recalled?

Many people get their tires replaced only to find out that the tires they are replacing are subject to a recall. Some consumers never learn about these recalls because independent tire dealers, who provide most consumers with tires, are not required to register the sale with manufacturers so that the consumer is effectively notified when the tire maker issues a recall. This means that tire manufacturers often have trouble reaching out to or do not reach out at all to consumers who have unregistered tires. Therefore, it is often up to the consumer to register their tires to find out about these recalls.

This system is admittedly not perfect. The National Transportation Safety Board (NTSB) admitted in 2015 that the current tire recall system is broken and issued 11 recommendations to fix it. While many of those recommendations are yet to be implemented, small developments have been made. For example, nowadays, tire sellers often provide consumers with the means to register their tires themselves at the point of sale by providing registration forms and / or links to online registration. Nonetheless, the system remains imperfect.

So how does the consumer receive notice about a recall? A consumer registered with the manufacturer should receive notice of any recalls directly from who made the tire. However, if you move, it is unlikely the manufacturer has paid first class postage to ensure your notice will be forwarded to your new address.

Consumers who are not registered or are perhaps unsure of their registration status can search for applicable recalls on the websites of both the National Highway Traffic Safety Administration (NHTSA) and the tire manufacturer itself. Both websites provide relevant information such as brand name, DOT code, and other identifying information that consumers can cross-reference with information found on their own tires to see if applicable recalls apply.

Therefore, it is best for these consumers to know how to read the DOT codes found on their tire’s sidewall to find the needed information effectively. The DOT code is the only identifiable information to determine if a tire has been recalled.

While the system is not perfect, knowing whether a tire has been recalled is critically important for consumers because it ensures that travel remains as safe as possible. Beasley Allen lawyers have successfully handled cases involving fatal and non-fatal vehicle accidents linked to tire failure.

Sources:  Rubbernews.com, Recallmasters.com and Consumerreports.org

Second Lawsuit Filed Against Fiat Chrysler Claiming Minivans May Explode

Two couples have filed a second proposed class action against Fiat Chrysler (FCA) over allegations that the vehicle maker’s hybrid Pacifica minivan’s risk of exploding or catching fire even when it is turned off and without any explanation other than a problem with the vehicle’s propulsion system.

Meagan and Cal Findeiss from Dallas hope to represent a Texas subclass. Clea and Ladd Van Tol from Oregon seek to represent an Oregon subclass in the proposed litigation. The couples claim they bought their Pacifica minivans based on “uniform messaging” by FCA and that the 2017-2018 Pacifica minivans were safe and reliable, according to Law360.  Their claims are similar to those made by another proposed class action in California federal court earlier last month by a driver seeking to represent a subclass for that state.

FCA recalled the minivan on Feb. 11 but still does not know the exact cause of the problem. It recommended that drivers keep their vehicles a safe distance from buildings and other vehicles and stop charging them while it works to solve the defect. Law360 reports that FCA issued two other fire-risk-related recalls on the minivan, “one in 2018 over unburned fuel getting in the exhaust system and another in 2020 over a corroded electrical connection in the car’s battery.”

According to the couples ‘ separate complaints, the FCA has continued selling new Pacifica hybrid minivans with the same type of battery that could be the source of the defect. Lawyers representing the couples are investigating other model years of the minivan for similar problems.

The plaintiffs say they would never have bought the hybrid vehicle if they’d known they wouldn’t be able to charge it and argue that FCA’s advice to keep the vehicles away from buildings and avoid charging them is not a cure or remedy. The complaint states:

Had plaintiffs and the putative class members known of the hybrid propulsion defect, they would not have purchased or leased those vehicles, would have paid substantially less for them, or would have purchased non-hybrid versions of the vehicles, which cost substantially less.

Stellantis N.V. is FCA’s successor company. The Michigan suit seeks certification of a nationwide class and subclasses for Texas and Oregon, damages, an order that FCA must replace or repair class members’ defective vehicles and attorney fees.

The drivers are represented by E. Powell Miller and Sharon S. Almonrode of The Miller Law Firm PC, Stephen R. Basser, Samuel M. Ward and Jeffrey W. Golan of Barrack Rodos & Bacineand John G. Emerson of Emerson Firm PLLC. The case is Findeiss et al. v. FCA US LLC, case number 2:22-cv-10850, in the U.S. District Court for the Eastern District of Michigan.

Source: Law360.com

PRODUCT LIABILITY UPDATE

Dangers Of Backless Booster Child Seats

They are light, easy to move between cars, and significantly less expensive than most other child car seats, which makes parents happy and eager to move their children into them as soon as possible. Yet, backless booster child seats pose grave dangers to children, especially those who transition to them too early.

Seat belts in cars are designed and tested for adults; thus, the necessity of placing children in car seats. Initially, children are placed in a rear-facing car seat. They then move to a forward-facing five-point harness car safety seat and eventually graduate to a booster seat, either backless or with a back, before being large enough to fit in the seat belt as installed in the vehicle. According to the National Highway Traffic Safety Administration (NHTSA), the Insurance Institute for Highway Safety (IIHS), and the American Academy of Pediatrics (AAP), children should remain in their forward-facing five-point harness child safety seat until they reach the top height or weight of the seat.

Unfortunately, many parents transition their children too early to booster seats. This is often because of the overlap in height and weight of the booster seat and the forward-facing five-point harness seat. For example, most forward-facing five-point harness child safety seats have a top weight limit of 65 lbs. while most booster seats advertise being appropriate for children as little as 40 lbs. This overlap confuses parents and often leads to parents transitioning their children too soon to booster seats even though the child still fits in their forward-facing five-point harness seat.

If a child is transitioned to a backless booster seat too soon, the child will not fit appropriately in the seat belt. A booster seat is designed to boost a child so that the seat belt in the vehicle fits them appropriately. If a child is transitioned too early, the seat belt will not fit them correctly and increases the likelihood the child will roll out or slip out from the shoulder belt portion of the seat belt during a crash. This can result in severe and permanent injuries to the child, including head trauma, spinal cord injuries, internal injuries, and sometimes death. This is because the child loses the protection of the shoulder belt and is only restrained by the lap portion of the seat belt, allowing the child to move more freely in the vehicle and impacting structures within the vehicle. Thus, it is important to keep your child in a forward-facing five-point harness seat until the child reaches the top height or weight of the seat before transitioning to a booster seat.

Many manufacturers fail to warn or provide appropriate warnings and instructions to parents regarding transitioning their children to and use of booster seats. Booster seats come with a back and then also backless. The booster seats with a back provide head and neck support and assist in routing the seat belt across the child. Litigation testing that we have conducted shows that when the child has outgrown the forward-facing five-point harness seat, a booster seat with a back provides better occupant protection in a crash than one that is backless.

Transitioning children into booster seats too early can have devastating consequences. Forward-facing five-point harness seats are more expensive, cumbersome, and often embarrassing for children as they age. Still, it is important for their safety that children remain in them until they reach the top height or weight of the seat before being placed in a booster seat.

$250,000 Verdict Against CR Bard In Second Hernia Mesh Bellwether

In the second bellwether trial, C.R. Bard was dealt its first loss in a multidistrict litigation (MDL) over alleged defects in its hernia mesh products last month. Bard and its subsidiary, Davol Inc., were defendants in the case. An Ohio federal court jury awarded $250,000 in damages to Antonio Milanesi, injured from a defective C.R. Bard hernia mesh patch. The Milanesi case, according to the Judicial Panel on Multidistrict Litigation, is part of the third-largest MDL in the country, with nearly 16,700 pending cases over the Bard products

According to Law360, Milanesi had a Ventralex Hernia Patch implanted in July 2007. He was forced to endure “surgical intervention” due to the patch and filed suit with his spouse, Alicia Morz De Milanesi, who was awarded $5,000 in loss of consortium damages.

The jury agreed with the plaintiffs on their negligent design defect assertion. The plaintiffs asserted that the product’s material degrades in human tissue. The jury rejected the plaintiffs’ additional arguments for strict products liability, failure to warn, negligent misrepresentation and fraudulent misrepresentations.

The first Bard Hernia Mesh Litigation bellwether trial resulted in a defense verdict. The MDL is consolidated in the U.S. District Court, Southern District of Ohio, in front of Judge Edmund Sargus, Jr. Specifically, the plaintiffs say they suffered inflammation, pain, infections and required additional injuries because of the defective mesh. In addition to the cases in federal court, there are an estimated 10,000 more cases against Bard, some in a consolidated proceeding in Rhode Island’s state court.

Johnson and Johnson’s Ethicon and Getinge’s Atrium Medical Corp, which also sell hernia mesh products, have also been sued. In December 2021, Getinge was reported to have settled all claims for $66 million.

The Milanesis are represented by Timothy O’Brien of Levin Papantonio Thomas Mitchell Rafferty Proctor PA, Kelsey Stokes of Fleming Nolen & Jez LLP, Jeffrey Grand of Seeger Weiss LLP and David Butler of Taft Stettinius & Hollister LLP.

The bellwether case is Antonio Milanesi et al. v. C.R. Bard Inc. et al., case number 2:18-cv-01320, and the MDL is In re: Davol Inc./C.R. Bard Inc. Polypropylene Hernia Mesh Products Liability Litigation, case number 2:18-md-02846, both in the U.S. District Court for the Southern District of Ohio.

Source: Law360.com

Timber Industry Product Cases

The timber industry is one of Alabama’s largest economic drivers, with reports ranging from fifteen to over twenty billion dollars generated annually.  Additionally, nearly 70,000 Alabamians are directly employed by the industry, and another 100,000 workers are indirectly employed.  Despite the timber industry’s impact on the state’s economy, the benefits do not come without downsides.  Logging is a dangerous industry that injures and kills countless Alabamians each year.

Logging requires heavy equipment to cut down trees sizeable enough to produce polls, lumber and even pulp.  It then requires a piece of heavy equipment known as a skidder to pull the fallen trees to a loading deck.  At the deck, the logs must be loaded by another piece of heavy equipment onto a trailer which an eighteen-wheeler will ultimately pull to the appropriate mill.  There, it will be unloaded by yet another piece of heavy equipment and processed by even additional sizeable industrial equipment such as saws and presses.

The entire process of taking the trees from the land until a finished product is produced requires a tremendous amount of human interaction with both heavy logs and industrial equipment.  Every tract of land logged, tree cut down, and truck loaded presents a unique set of challenges and obstacles where one misstep or product failure can result in catastrophic injuries.  Beasley Allen has successfully handled product liability cases in Alabama and throughout the Southeastern United States involving defective cutters, skidders, log trucks, log trailers, and cab guards, to name a few.

The final step in the timber industry, milling or transforming the raw wood into an end product, is also a risky business.  The same general hazards are present at this stage as well.  The milling process requires human interaction with industrial equipment designed to break down heavy, rough pieces of wood.  Anytime workers are required to work near equipment capable of such tasks, there is an opportunity for injuries.

Common accidents inside timber mills and plants are not dissimilar from other industrial facilities.  As one might expect, crush hazards, pinch hazards and hazards caused by large saws are common within timber mills. However, other hazards that are not as predictable must also be contemplated.

We have handled cases dealing with over-pressurization and explosions within timber plants and mills.  Each plant or mill has unique machinery that presents unique hazards depending on the end product.  Anytime a severe injury occurs inside a timber plant or mill, a careful investigation should analyze the machinery involved.  A product liability claim can easily be overlooked.

The timber industry is critical to the State’s economy and creates many high-paying jobs for the state’s citizens.  However, as long as there is logging equipment,  log trucks, and mills operating, the potential for devastating accidents and injuries will remain.  If you need more information, contact Evan Allen, a lawyer in our firm’s Mobile office.

Sources: MadeInAlabama.com and AmazingAlabama.com

$7.5 Million Breaching Round Warning Jury Verdict Stands

U.S. District Judge Thomas Durkin with the Northern District of Illinois will allow a jury’s verdict for $7.5 million to stand against Safariland and its subsidiary Defense Technology Corp. of America. The verdict was awarded to David Hakim, a SWAT officer with the DuPage County Sheriff’s Office who was wounded by the defendants’ TKO shotgun breaching rounds during a training exercise in 2014.

The jury agreed with Officer Hakim’s argument that Safariland LLC refused to warn consumers that the breaching rounds must hit metal to disintegrate.

Judge Durkin rejected the defendants’ motion for relief, finding that “the companies challenged the verdict with arguments the jury had already heard and was free to reject,” as Law360 reported.

Safariland argued that the sheriff’s office knew about the dangers its TKO rounds posed before the 2014 training incident when one of its rounds lodged in Officer Hakim’s spine.

Judge Durkin said:

Everything Safariland cites in its motions was before the jury for consideration. Safariland is essentially arguing the jury was required to draw specific inferences from the evidence in its favor and disregard conflicting evidence. This is not correct.

Additionally, the ammo maker posed another argument that the jury had considered and dismissed that Officer Hakim was injured only because of poor planning by the sheriff’s office. Judge Durkin found the instructions to the jury that it could find Safariland liable for failing to warn about the product’s dangers even if the jury found other people partially responsible for the injury were proper.

The judge also determined that the jury’s instruction telling the jury that a defense verdict was in order if the jury found that other people besides Safariland caused the officer’s entire injury was proper. Judge Durkin found that the verdict correctly reflected the jury’s belief that the defendant Safariland was partially responsible for Officer Hakim’s injury. He added:

Furthermore, it was foreseeable that users of the TKO breaching round, including SWAT officers, might deploy them in a less-than-perfect manner. Such a fact does not cut off liability for Safariland on a failure to warn theory.

The jury rejected Officer Hakim’s claims that Safariland’s TKO rounds were defectively designed or manufactured. The ammo has been used by the military and law enforcement since the 1970s, when they were first placed on the market. It is designed to disintegrate after breaking through metal such as hinges, safety chains, doorknobs and other devices that prevent law enforcement from accessing a space, for example, when working to free captives or hostages.

During the 2014 training exercise, Officer Hakim explained that he and other officers divided into teams and went to different areas of a soon-to-be-demolished house. A breaching round traveled from the basement to the upstairs where Officer Hakim was, tearing through his protective armor and lodging in his spinal canal.

The defendants argued that Officer Hakim was injured because of the SWAT team’s poor judgment during the exercise. They stood by the integrity of their product. Officer Hakim is represented by Edmund Scanlan of Scanlan Law Group. The case is Hakim v. Safariland LLC et al., case number 1:15-cv-06487, in the U.S. District Court for the Northern District of Illinois.

Source: Law360.com

WORKPLACE LITIGATION

Beasley Allen’s Georgia Lawyers Secure Multimillion Dollar Verdict

A Georgia state court jury awarded $4.25 million, subject to 49% apportionment, to the daughter of a man crushed to death by an M6 Avalanche street sweeper after finding the defendants failed to ensure that the heavy-duty mechanical broom sweeper was in safe operating condition and free of defects. Lance Cooper, Pat Dawson and Rebekah Cooper of The Cooper Firm, and Beasley Allen lawyer Kendall Dunson, represented Gabrielle Smith, the daughter of Orlando Hall.

After the trial, Kendall had this to say about the case:

Our evidence showed the defendants negligently placed faulty equipment in the stream of commerce, which ultimately led to Mr. Hall’s tragic and gruesome death. And the jury’s verdict rings loud and clear—manufacturers’ carelessness and disregard for human life will not be tolerated.

As a subcontractor for E.R. Snell, Inc, Mr. Hall provided street sweeping services in Gwinnett County, Georgia. In September 2017, while performing his job at Pleasant Hill Road in Duluth, he noticed a problem with the street sweeper that included smoke emanating from the vehicle. After pulling over by a convenience store to inspect the equipment and troubleshoot the problem, Mr. Hall was crushed between the hopper and conveyor when his lower leg inadvertently activated the unguarded controls that were negligently placed near a crushing hazard.

Mr. Hall’s daughter sought to hold the defendant accountable for her father’s death. Schwarze Industries, Inc. designed, manufactured and selected equipment that was “defective, unreasonably dangerous and unsafe for foreseeable users and occupants.” Specifically, the outcome in this litigation determined, among other things, that the design of the sweeper’s outside controls created a risk for unintended activation of the controls.

The location of the controls, the toggle switches and the failure to properly guard the switches for the conveyor/elevator/hopper made the system vulnerable to inadvertent activation. Approximately three years following Hall’s death, a mechanic working for the City of Mesa, Arizona, was also crushed in the same manner as Mr. Hall. Following the death of Mr. Jason Oswald, Schwarze and its parent company, The Alamo Group, redesigned the outside control box to include guards to prevent inadvertent activation of the equipment. The plaintiff’s mechanical engineer, Eric Van Iderstine, had suggested guarding the controls when he was deposed in the Smith litigation five months before the Oswald incident.

Because of this litigation, no one else using an M6 Avalanche street sweeper will suffer the same gruesome fate as Orlando Hall and Jason Oswald. The Beasley Allen firm, the Cooper Firm, and the family of Mr. Hall are proud that their efforts in pursuing this litigation will save lives in the future.

The suit (case number 18-C-05219-S3), Gabrielle Smith v. E.R. Snell Contractor, Inc., Tractor & Equipment Company, and Schwarze Industries, Inc., was filed in the State Court of Gwinnett County, State of Georgia.

AVIATION LITIGATION

FAA’s New Leadership Must Recommit To Aviation Safety

The Boeing 737 MAX airplane crashes that killed 346 people in Indonesia and Ethiopia were two major incidents that exposed serious deficiencies in the Federal Aviation Administration’s (FAA)’s regulatory framework. While government officials have taken measures to correct some of the problems, significant shortcomings persist that directly affect commercial and general aviation safety. Additionally, some newer problems have emerged. The FAA’s new leadership must effectively address these problems to ensure the flying public is adequately protected.

Mike Andrews, a lawyer in our Personal Injury & Product Liability Section, is the lead Beasley Allen lawyer for our aviation litigation. Mike has been handling litigation against Boeing for our clients who lost a family member in the Ethiopian Airlines 737 MAX crash in March 2019. Throughout the litigation, Mike witnessed many areas the agency must improve to protect the flying public better.

Foremost among these issues is the FAA’s leadership and its staffing to some extent. Each presidential administration, of course, ushers in new changes, including changes to the individuals who call the shots affecting how the agency operates. It is critical that FAA leadership and staff at all levels are qualified experts in their field and committed to maintaining the highest aviation safety standards.

In recent months, one problem that has emerged concerns the proliferation of 5G networks. It is known that C-Band 5G cellular service can interfere with sensitive airplane instruments, including altimeters that enable planes to operate and land safely in low-visibility conditions. Yet little has been done by the FAA’s new leadership to confront this threat, despite the warnings of principal U.S. and international airlines and aviation safety organizations. The rollout of 5G by Verizon and AT&T instantly led to chaos and confusion across the country in January, prompting widespread flight cancellations and last-minute plane changes due to safety concerns.

Another serious problem creating real safety risks is the FAA’s dwindling commitment to properly serving the flying public with adequate pilot check rides and FAA inspections of smaller aircraft. Little has been done since the onset of the COVID pandemic to maintain general aviation safety. While the lack of attention stems partly from the FAA’s growing focus on commercial aviation, most hands-on FAA inspectors and pilots remain benched because of COVID concerns, even as vaccines have significantly diminished the COVID virus’s threat among the U.S. population. The FAA’s new leadership needs to recommit the agency to properly and adequately servicing the general aviation sector to stem the steady increases in general aviation deaths and injuries.

Aircraft Litigation At Beasley Allen

If you would like to have more information on any aspect of aviation litigation or you need help on an aviation case, contact Mike Andrews. He will be glad to talk with you.

THE TALC LITIGATION

J&J Bankruptcy Update

On Feb. 25, 2022, Judge Michael B. Kaplan of the U.S. Bankruptcy Court for the District of New Jersey denied the plaintiffs’ motion to dismiss LTL’s, a new subsidiary of Johnson & Johnson (J&J), bankruptcy filing, finding that it was filed in good faith. In his ruling, Judge Kaplan stated, “There is nothing to fear in the migration of tort litigation out of the tort system and into the bankruptcy system.” He also extended the automatic bankruptcy stay on talcum powder lawsuits against J&J and other defendant retailers.

Judge Kaplan’s opinions on the motion to dismiss and the motion to extend the preliminary injunction both smack of tort reform. J&J is not the first company to attempt the Texas Two-Step, and it certainly won’t be the last if bankruptcy courts continue to subvert justice for the sake of efficiency and fairness (as defined by the bankruptcy court). Senator Dick Durbin, the chairman of the Senate Judiciary Committee, has urged Congress to “close this loophole for good” by drafting legislation to stop J&J’s “shameful, indefensible strategy.”

In the meantime, Judge Kaplan has agreed to certify an interlocutory appeal to the Third Circuit Court of Appeals. He cited significant legal issues that the Third Circuit has not addressed. These legal issues will affect current and future bankruptcy litigants and have attracted considerable attention from policymakers, the media, and consumer rights advocates. For additional information, contact Lauren James, a lawyer in our Mass Torts Section.

Source: Law360.com

Purdue Bankruptcy Settlement Appeal

A group of individual plaintiffs injured by Purdue Pharma’s products has asked the Second Circuit Court of Appeals to overturn a District Court’s decision to undo the Purdue Bankruptcy Settlement Agreement. This came after a substantial additional contribution from the Sackler family, owners of OxyContin manufacturer Purdue Pharma.  The U.S. Trustee and several states appealed the original Bankruptcy Settlement to the District Court, arguing that relieving the Sackler family of liability, without their own bankruptcy filing, in exchange for substantial contributions to the settlement is not supported by the U.S. Bankruptcy Code. The States have withdrawn their appeal; however, the U.S. Trustee has not.

The Sackler family significantly increased their contribution by $1 billion, bringing their total contribution to $5.5 billion.  The bankruptcy court had approved a prior bankruptcy settlement agreement between opioid plaintiffs, Purdue, and the Sackler family, only to have it overturned by the U.S. District Court in an appeal by several state attorneys general and the U.S. Trustee.

In overturning the settlement, the district court ruled that the Bankruptcy Code did not allow the court to relieve the Sackler family from their tort liabilities without individual consent because the Sackler family members had not personally sought bankruptcy protection from the court.

A preliminary injunction barring the pursuit of claims against bankrupt Purdue Pharma and the Sackler family has been extended for at least another month because of the appeal to the Second Circuit.

During a virtual hearing, Judge Drain approved the consensual extension of the injunction, which will run until 30 days after the Second Circuit rules on the permissibility of third-party releases of non-debtors. It should be noted that this matter has drawn significant opposition both in the case and from the public.

The U.S. Trustees program is a component of the U.S. Department of Justice that serves as a watchdog for the bankruptcy court system.

Source: Law360.com

Beasley Allen Talc Litigation Team

Beasley Allen lawyers Ted Meadows and Leigh O’Dell head the Beasley Allen Talc Litigation Team. Andy Birchfield, who heads our Mass Torts Section, has been directly involved in all phases of the talc litigation. The team handles claims of ovarian cancer linked to talcum powder use for feminine hygiene. Several key team members are currently focused on J&J’s abuse of the bankruptcy system.

The following Beasley Allen lawyers are members of the Talc Litigation Team: Leigh O’Dell, Ted Meadows, Kelli Alfreds, Ryan Beattie, Beau Darley, David Dearing, Liz Eiland, Jennifer Emmel, Jenna Fulk, Lauren James, James Lampkin, Caty O’Quinn, Cristina Rodriguez, Brittany Scott, Charlie Stern, Will Sutton and Matt Teague.

Charlie Stern and Will Sutton, lawyers in our Toxic Torts Section, are also on the team, but they exclusively handle mesothelioma claims. Charlie and Will are looking at industrial, occupational, and secondary asbestos exposure resulting in lung cancer or mesothelioma and claims of asbestos-related talc products linked to mesothelioma.

OPIOID LITIGATION

Alabama Reaches $276 Million Opioid Settlement with Opioid Manufacturers, Distributor

Alabama reached a $276 million settlement with drug makers Endo Pharmaceuticals and Johnson & Johnson and drug distributor McKesson Corp, resolving claims that the companies helped fuel a devastating opioid epidemic in the state.

“These three settlement agreements affirm my decision to decline participation in the national opioid settlements, which did not adequately acknowledge the unique harm that Alabamians have endured and would have redirected millions of dollars to bigger states that experienced a less severe impact,” Attorney General Steve Marshall said.

Alabama was first in the nation in 2012 for per-capita opioid prescriptions, with 143.8 opioid prescriptions per 100 residents—that’s equivalent to more than 1.4 prescriptions for every man, woman, and child in the state, according to the Alabama Department of Mental Health.

Alabama was one of four states that declined to join the $26 billion nationwide opioid settlement against four opioid companies, opting instead to take on the drug companies on its own. The gamble appears to have paid off. Under the settlement terms, Endo will pay $25 million to the state, Johnson & Johnson will pay $70.3 million, and McKesson will pay $141 million.

Had Alabama joined the national opioid litigation, it would likely have received significantly less from Endo based on what the company has agreed to pay to states with similar populations. Alabama would have gotten the same amount from Johnson & Johnson, but the money would have been paid out over nine years rather than handed over in a lump sum. The attorney general’s office said that McKesson would have paid only $115.8 million over 18 years rather than $141 million over nine years.

“Having encountered the utter darkness of the opioid crisis at my own doorstep, this is one of my most meaningful accomplishments as your attorney general,” Marshall said.

The State of Alabama was also represented by Beasley Allen lawyers Jere Beasley, Rhon Jones, Matt Griffith, Jeff Price, Rick Stratton, Gavin King, Tucker Osborne, David Diab, Will Sutton and Elliott Bienenfeld and Prince Glover and Hayes lawyers Robert Prince and Josh Hayes. Beasley Allen staff Tracie Harrison and Katie Edwards provided significant assistance in preparing the litigation for trial and support throughout the trial. The case is State of Alabama v. Endo Health Solutions Inc, in the Montgomery County Circuit Court, Alabama, case No. CV-2019-901174.

Sources: Alabama Attorney General’s Office and Law360.com

Congressional Report Reveals More About McKinsey & Co. Involvement In The Opioid Epidemic

The U.S. House Committee on Oversight and Reform issued a report last month revealing an even deeper level of greed and corruption surrounding the opioid epidemic. Preliminary findings from the Committee’s investigation into McKinsey & Company’s consulting work during the opioid epidemic revealed that consultants (including senior partners) worked simultaneously for the Food and Drug Administration (FDA) and opioid manufacturers. Further, evidence shows that McKinsey worked to generate more business from opioid manufacturers by touting its government contracts and connections. The firm also attempted to influence government officials in the same vein, “including Trump Administration Secretary of Health and Human Services (HHS) Alex Azar,” to benefit its clients.

Committee chairwoman Rep. Carolyn B. Maloney announced the report and explained that McKinsey’s conflicts of interest were not shared with the FDA. She said that these factors “rais[e] serious questions about McKinsey’s ability to provide objective advice and its compliance with the terms of its contracts and federal law.”

The following are a few examples of lawmakers’ findings of McKinsey’s egregious behavior:

• In 2009, in a bid to lead a working group of opioid manufacturers, McKinsey highlighted that due to its direct work for regulators, the company had “developed insights into the perspectives of the regulators themselves.”
• In 2011, at least four McKinsey consultants working on a $1.8 million FDA contract to enhance drug safety and address “the adverse impact of drugs on health in the US” were simultaneously working for Purdue—including on projects designed to persuade FDA of the safety of Purdue’s opioid products. One project involved writing “scripts” for Purdue to use in a meeting with FDA on the safety of pediatric OxyContin.
• In 2014, a McKinsey partner wrote to Purdue’s Chief Executive Officer (CEO) that McKinsey brought an “unequaled capability based on who we know and what we know,” highlighting the firm’s work for “State and Federal Regulators,” including “FDA, who we have supported for over five years.” Less than a week later, McKinsey confirmed multiple engagements at Purdue, including a project led by a McKinsey partner who frequently consulted for FDA to prepare Purdue for an FDA Advisory Committee meeting on one of its opioids.
• In 2017, a McKinsey partner began work on a $2.7 million contract to help modernize FDA’s Office of New Drugs—at the same time the McKinsey consultant was advising Purdue on maximizing the market potential of a new opioid and another potentially lucrative new drug which Purdue would soon file with the same FDA office.
• In 2018, McKinsey consultants drafted a “transition memo” to incoming HHS Secretary Alex Azar. The memo contained input from McKinsey consultants who did work for Purdue, including one consultant who had previously recommended strategies to “Turbocharge Purdue’s Sales Engine” and use a “Wildfire” strategy to sell more opioids. This consultant recommended that the memo to Secretary Azar emphasize the “important societal benefit” of opioids. The final memo included certain recommendations that appear aligned with the interests of McKinsey’s private sector opioid clients.

Last November, Chairwoman Maloney launched the investigation and noted that “[t]o date, McKinsey has failed to fully cooperate with the Committee’s investigation.” She said further:

McKinsey must answer for its actions, and I plan to have McKinsey’s Global Managing Partner testify before my Committee on the conflicts of interest uncovered in this report. I remain committed to uncovering the full scope of McKinsey’s conflicts of interest across the federal government and advancing legislative solutions to safeguard the health and security of the American public.

Last year, McKinsey was part of a $640 million settlement with all 50 states, five territories, and the District of Columbia. The firm is also party to a California-based MDL and is attempting to get the legal action dismissed. It argues that the 2021 settlement resolved the opioid-related allegations against the firm. Stay tuned!

Sources: Law360.com and U.S. House of Representatives

Gamble Pays Off For West Virginia In $99 Million Settlement With J&J

Johnson & Johnson (J&J) will pay $99 million to settle what was described as a “‘high-stakes’ opioid trial in West Virginia, vindicating the state’s refusal to join a nationwide” settlement that would have paid out only half as much, according to Law360. Attorney General Patrick Morrisey announced the settlement at a news conference on April 18. There he correctly said his decision to “roll the dice on trial” had paid off by doubling the $48 million that West Virginia would have received under J&J’s national settlement. The Attorney General said:

That’s why we were able to obtain a special negotiation with them: because I rejected the national settlement. And I would note that I rejected it over the opposition of a number of editorial pages across West Virginia. Folks need to trust the process. We have good lawyers. … And there’s risk in trial, we always acknowledge that. But we always put West Virginia’s interests first, and we’re going to get the best possible deal for the citizens of our state.

As we previously reported, J&J has offered about $5 billion to resolve allegations it fueled the nation’s opioid crisis by deceptively marketing addictive painkillers with narcotic ingredients. A majority of states accepted the settlement, but West Virginia rejected the terms because they were too dependent on population size, not the  number of overdoses in each state. West Virginia was hit especially hard by the opioid epidemic.

At press time, the remaining holdout states included New Hampshire and Washington, both of which have opioid trials against J&J set for later this year.

Source: Law360.com

The Beasley Allen Opioid Litigation Team

Beasley Allen’s Opioid Litigation Team continues to work on a large number of existing cases. There has been no slowdown in activity in this litigation. As previously stated, Beasley Allen lawyers represent the State of Alabama and the State of Georgia, numerous local governments and other entities. Our lawyers also handle individual claims on behalf of victims in this litigation.

Our Opioid Litigation Team includes Rhon Jones, Parker Miller, Ken Wilson, David Diab, Rick Stratton, Will Sutton, Jeff Price, Gavin King, Tucker Osborne, Elliott Bienenfeld and Matt Griffith.

THE WHISTLEBLOWER LITIGATION

Settlement In Aerojet Cybersecurity FCA Suit

Aerojet Rocketdyne has agreed to resolve a high-profile False Claims Act lawsuit brought by a whistleblower who accused the federal contractor of misleading the government about its compliance with certain cybersecurity requirements. The agreement brought an early end to the case after only two days at trial. Relator Brian Markus and Aerojet Rocketdyne Holdings Inc. told U.S. District Judge William B. Shubb on April 27 that they had settled the case.

We learned of the settlement on April 29, just as this issue was getting ready to go to the printer, so settlement terms weren’t available. In his lawsuit, plaintiff Markus, who was Aerojet Rocketdyne’s senior director of cybersecurity, compliance and controls from June 2014 to September 2015, alleged that the company deceived the U.S. Department of Defense (DOD) regarding its compliance with regulations to protect controlled unclassified information from cybersecurity threats. He further accused Aerojet of misleading NASA about its compliance with a rule for protecting sensitive information.

In his whistleblower lawsuit, Markus alleged he tried to get Aerojet Rocketdyne to comply with its federal cybersecurity obligations through internal processes. Instead of correcting the problems, Aerojet terminated Markus after he refused to certify documents stating that the company was in compliance with the federal cybersecurity requirements, the complaint alleges.

Markus filed his suit in October 2015. The case was unsealed in June 2018 after the government investigated his claims. Judge Shubb had dismissed several of Markus’ claims in a February ruling. Federal contractors and FCA lawyers had closely watched the case after Judge Shubb dismissed a conspiracy claim and sent employment-related claims to arbitration. However, the judge refused to dismiss Markus’ fraud claims. In those claims, Judge Shubb found that the government reimbursed Aerojet for false claims based on the company’s allegedly false compliance with federal rules for safeguarding information from cybersecurity threats.

Significantly, this ruling marked the first time a court had found that allegations involving a failure to comply with cybersecurity regulations could form the grounds for an FCA suit. That was a prospect that contractors had watched closely since 2013, when the DOD first introduced its rule to safeguard controlled unclassified information from cybersecurity attacks.

Since that decision, and despite the growing number of cybersecurity rules that federal agencies, especially the DOD, are developing and issuing, there have been relatively few FCA cases and settlements involving cybersecurity claims filed. However, it should be noted that since FCA suits are initially filed under seal, there could possibly be other suits and settlements. In any event, the number of such claims is expected to increase in the near future. The U.S. Department of Justice (DOJ) announced its Civil Cyber-Fraud Initiative in October 2021, saying it will use the FCA to penalize contractors with cybersecurity practices that jeopardize federal information or networks.

The initiative is expected to lead to more direct FCA suits from the DOJ, and it will likely encourage more whistleblowers to come forward with cybersecurity-related suits, DOJ officials have said.

Markus is represented by Gregory Thyberg of ThybergLaw, and David W. Schecter, Louis R. Miller and Nicholas Garver of Miller Barondess LLP. The case is Markus v. Aerojet Rocketdyne Holdings Inc. et al., case number 2:15-cv-02245, in the U.S. District Court for the Eastern District of California.

Beasley Allen lawyers will monitor this settlement and continue to accept cybersecurity-related cases. If you need more information, contact Leon Hamilton or Larry Golston, lawyers in our Consumer Fraud & Commercial Litigation Section. Leon and Larry handle FCA litigation for the firm.

Source: Law360.com

First False Claims Act Settlement Under DOJ’s Cyber-Fraud Initiative

The Department of Justice has reached a $930,000 settlement in a False Claims Act (FCA) lawsuit alleging a new legal theory – cyber fraud.  The settlement with Comprehensive Health Services, LLC is the DOJ’s first resolution of an FCA case involving allegations of cyber fraud following the DOJ’s launch of its Civil Cyber-Fraud Initiative.  In case you hadn’t heard of it, on October 8, 2021, the DOJ announced the Civil Cyber-Fraud Initiative as a new program designed to hold accountable entities or individuals who put information or systems in the U.S. at risk by:

• Knowingly providing deficient cybersecurity products or services;
• Knowingly misrepresenting their cybersecurity practices or protocols; or
• Knowingly violating obligations to monitor and report cybersecurity incidents and breaches.

In the settlement, the DOJ alleged that between 2012 and 2019, Comprehensive Health Services, LLC, Cape Canaveral, Florida, misled the U.S. Department of State and U.S. Air Force (USAF) by asserting that it carried out its contractual obligations with the two government entities, disregarding the FCA’s requirements. Comprehensive Health Services agreed to provide medical and data record services at facilities in Iraq and Afghanistan that the State Department and the USAF operated.

One specific government allegation was that Comprehensive Health stored data, including protected health information and confidential identifying information, at times, on an unsecured electronic medical record system, a flagrant violation of its express contractual agreement with the government. However, Comprehensive Health submitted or caused the submission of claims for reimbursement from the State Department that failed to disclose that it had not complied with the contract requirements that patients’ medical records be stored on a secure EMR.

In addition, the settlement resolves allegations that Comprehensive Health submitted or caused the submission of false claims totaling nearly $150,000 relating to contracts and subcontracts involving controlled substances that were not approved by the U.S. Food and Drug Administration or the European Medicines Agency. Principal Deputy Assistant Attorney General Brian M. Boynton, head of the Justice Department’s Civil Division:

This settlement demonstrates the department’s commitment to use its civil enforcement tools to pursue government contractors that fail to follow required cybersecurity standards, particularly when they put confidential medical records at risk. We will continue to ensure that those who do business with the government comply with their contractual obligations, including those requiring the protection of sensitive government information.

Lawyers in our firm’s Whistleblower Litigation Group wrestle with these issues and others in our fight to expose corruption in governmental contracting. We encourage those who witness corruption in their workplace regarding a government contract to seek confidential legal counseling to protect themselves and the taxpayers of this country who are also victims of the fraud.

Sources: Law360.com, JD Supra and U.S. Department of Justice

The Beasley Allen Whistleblower Litigation Team

If you are aware of fraud being committed against the federal or state governments, you could be rewarded for reporting the fraud.  If you have any questions about whether you qualify as a whistleblower, contact a lawyer on our Whistleblower Litigation Team for a free and confidential evaluation of your claim.  There is a contact form on our website, or you may email one of our lawyers on our team listed below.

Whistleblower litigation is still very active around the country. Beasley Allen’s Whistleblower Litigation Team members are still very busy handling cases under the False Claims Act (FCA). Our lawyers don’t see any slowdown in the whistleblower litigation. Fraud against the federal government is being committed by all too many industries in this country, especially in the healthcare field. This continues to be a huge problem, and we have increased our staffing to handle the influx of new cases.

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 prepare for what lies ahead. The experienced group of lawyers on our team is dedicated to handling whistleblower cases.

The Beasley Allen lawyers listed below are on the Whistleblower Litigation Team: Larry Golston, Lance Gould, James Eubank, Paul Evans, Leon Hampton, Tyner Helms and Lauren Miles. Dee Miles heads our Consumer Fraud & Commercial Litigation Section and works with the litigation group.

SECURITIES LITIGATION

SEC’s Proposed SPAC Rules Aim For Better Investor Disclosures

Last month, the U.S. Securities and Exchange Commission proposed new rules governing special-purpose acquisition companies (SPACs), billed as an effort to harmonize regulations with those for traditional initial public offerings.  The proposed rules would add liability risks that some lawyers say may curb the appeal of using a SPAC as an alternate funding vehicle to take a company public.

In a 372-page proposal released for public comment on March 30, regulators said SPAC transactions could be viewed as a way for market participants to avoid certain safeguards associated with conventional IPOs, as Law360 reported.  If adopted in their current form, the new rules seek to narrow regulatory gaps between these varying ways of taking companies public.

The SEC’s proposal would require more disclosures throughout the SPAC process, enabling investors to make better-informed decisions.  It would also expand liability and hold more parties accountable for faulty disclosures, including broadening an underwriter’s statutory definition.  Lawyers said the entire proposal, as currently crafted, could diminish the lure of SPACs.

SPACs, or blank-check companies, are shells that raise money through IPOs to acquire a private business and take it public within about two years or less. SPACs have no business operations, just the stated purpose of purchasing a target company with active operations.  These alternative vehicles have existed for decades but exploded in recent years, providing many target companies another way to go public without the more stringent disclosure obligations associated with a traditional IPO.

The SPAC surge has softened since mid-2021, partly due to poor post-merger stock performance of target companies, as well as recent market volatility.  Blank-check companies have also attracted more litigation and scrutiny from regulators concerned about investor protection.  Many worry that SPACs are prospered partly because they enjoy certain advantages over traditional IPOs due to “regulatory arbitrage”  when corporations utilize more favorable laws to circumvent less favorable ones.  The SEC proposal seeks to eliminate these loopholes regarding disclosures.

The SEC’s attempt to bolster SPAC disclosures — which require companies to reveal more information about conflicts of interest, insider compensation, equity dilution, and related costs that investors could bear — was largely expected.  New legal obligations on SPAC offerings and their eventual mergers — known as “de-SPACs” — are aimed to make the offerings more closely resemble traditional IPOs.

Among potential changes, the SEC would require target companies being acquired by a SPAC to sign as co-registrants when the SPAC files an S-4 document regarding its proposed merger.  This would clarify that the target company and its board of directors are subject to strict liability, meaning they could be found liable in a lawsuit or enforcement action, even if they did not intend to deceive investors if disclosures are found to be materially misleading.

The new rules also propose that any underwriter that participated in the original blank-check IPO and “takes steps” to arrange a merger, including raising additional financing, would also be considered an underwriter in the “de-SPAC” transaction and thus face the same strict liability as traditional IPO underwriters.

The SEC said imposing liability should motivate parties to ensure accurate disclosures in merger documents.  The SEC noted that additional parties, such as financial advisers who guide a SPAC merger, could also be considered underwriters, depending on the circumstances.

Moreover, to address potential insider conflicts of interest, SPACs would be required to affirm they believe the terms of a merger, and any related financing to complete the deal, are fair to all investors.  The proposal would also clarify that a target company’s financial projections, sometimes disclosed to investors before they vote on a SPAC merger, would not benefit from liability protection under the Private Securities Litigation Reform Act of 1995.

Projections have been a sticking point with SPACs as some target companies have seen share prices flop after failing to meet forecasts.  Companies typically avoid disclosing projections in traditional IPO filings because underwriters are concerned about liability or reputational risks if rosy predictions flop.  The SEC wants to clarify that a securities law “safe harbor” for projections that applies to existing public companies does not apply to target businesses in a SPAC merger.

The SEC’s proposal will be published on the agency’s website and in the Federal Register.  Regulators will accept public comment for 60 days following publication of the release on the SEC’s website or 30 days upon publication in the Federal Register, whichever is longer.  Regulators could vote on a final version later this year.

Source: Law360.com

Does The “No Surprises Act” Healthcare Law Have Good Surprises?

We recently published an article discussing the No Surprises Act and how it was already being questioned. One of the biggest complaints against the Act by health insurance carriers was the arbitration procedure. As we pointed out previously, insurers fear the presumption in arbitration that the median rates reflect the appropriate payment.

One of the litigations surrounding the Act recently resulted in summary judgment in favor of the carriers. In Texas federal court, the judge agreed with the Texas Medical Association’s challenge to an interim final rule governing the arbitration process and rejected a cross-motion for summary judgment filed by various federal agencies, including the U.S. Department of Health and Human Services. Finding for the Association, U.S. District Judge Jeremy D. Kernodle essentially determined that the interim rule conflicts with the text of the Act.

The Act requires arbitrators to look at a list of statutory factors but assigns no weight or priority to any factor. In contrast, the interim rule requires a presumption in favor of the Qualified Payment Amount (QPA) – a defined term. That term is generally “the median of the contracted rates recognized by the plan or insurer. . . for the same or similar item or service” by a similar physician and in the geographic area, with annual increases based on the consumer price index. § 300gg-111(a)(3)(E)(i)(I)-(II).

Judge Kernodle also ruled that the government didn’t follow the proper notice and comment period before implementing, which are steps required by the Administrative Procedures Act.

As a result of this decision, the court vacated various sections of the rule. It will be interesting to see how the Act and the rule end up functioning in real-world cases and their impact on consumers and providers alike. There are still several other ongoing litigations, and the government will likely appeal this decision.

Beasley Allen lawyers are monitoring this Act and the rules implementing its provisions and will keep our readers informed. If you have any questions, contact Rebecca Gilliland, a lawyer in our Consumer Fraud & Commercial Litigation Section in our Mobile office.

Source: Law360.com

Beasley Allen Securities Litigation Team

Lawyers in our 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. You can contact Dee Miles, James Eubank, or Demet Basar in our Consumer Fraud & Commercial Litigation Section concerning any securities issues and / or questions.

Our Beasley Allen Securities Team consists of Dee Miles, James Eubank, Demet Basar, Rebecca Gilliland and Paul Evans.

THE JUUL LITIGATION

JUUL Litigation Update

First-Ever FTC Report On E-Cig Use, Sales, Ads Supports Plaintiffs’ Claims

In March 2022, the Federal Trade Commission (FTC) released its first-ever report on e-cigarette product use, sales, and advertising, as reported by Law360. The report stated that the increase in popularity of e-cigarettes “paints a disturbing picture” as total e-cigarette sales and usage of flavored products by youth have surged in recent years.

The FTC found that spending on marketing for products tripled between 2015 and 2018, from $197.8 million to $643.6 million. Specifically, spending on celebrity endorsements, social media influencers, brand ambassadors and other promoters increased nearly fifteenfold within the three years.

Additionally, the report found a significant shift in sales from tobacco-flavored products to products that have fruit, candy or dessert flavors. According to the report, fruit-flavored products were the most popular, with sales increasing 600%, from 4.7% of all cartridges sold in 2015 to 29.7% in 2018. The dramatic increase in flavored products raises serious concerns that such products might have maintained or increased youth use of e-cigarette products,” the report says, and it noted that a 2018 survey of high school students nationwide found that more than two-thirds of e-cigarette users used flavored products. According to the report, disposable products in 2015 contained an average of 25 milligrams of nicotine per milliliter of e-liquid compared to 2018, when the average concentration was 39.5 mg/ml — a 60% increase.

In a statement, the FTC’s Bureau of Consumer Protection Director Samuel Levine said, “the data show that this increase coincided with dramatic spikes in the market share of flavored products, higher concentrations of nicotine and an industry attempt to evade a ban on free sampling.”

As for the JUUL MDL, the first personal injury Bellwether trial (featuring a Beasley Allen client) was moved to June 2022.  The Court recently heard oral arguments on both the summary judgment and Daubert motions filed by Defendants.  The parties recently filed motions in limine, with these motions set for oral argument later this month.

Beasley Allen lawyers continue to file cases on behalf of individuals suffering from personal injuries and claims on behalf of school districts and government entities across the country. Beasley Allen’s Joseph VanZandt serves on the JUUL Plaintiff Steering Committee and is counsel for the first Bellwether trial. Joseph and Mass Torts Section Head Andy Birchfield lead our firm’s efforts to hold JUUL accountable for the damage it caused to thousands of youths and communities around the country. Beasley Allen’s Beau Darley also serves on the PSC for the California state court litigation.

Please contact Joseph VanZandt or Beau Darley to discuss potential cases or the litigation.

Sources: Law360.com and Federal Trade Commission

JUUL Agrees To $22.5 Million Settlement With Washington Over Youth Ad Claims

JUUL has agreed to pay the State of Washington $22.5 million to settle claims that the e-cigarette giant targeted youth in its product advertisements and failed to warn of nicotine addiction dangers. Washington Attorney General Bob Ferguson announced the settlement last month.

The settlement requires JUUL Labs Inc. to reform its marketing practices so that it does not target Washington’s youth. It specifies that the deal is not an admission of any wrongdoing or liability of any kind by JUUL and that the company denies all of the state’s allegations. Attorney General Ferguson said in a press statement:

Juul put profits before people. The company fueled a staggering rise in vaping among teens. Juul’s conduct reversed decades of progress fighting nicotine addiction, and today’s order compels Juul to surrender tens of millions of dollars in profit and clean up its act by implementing a slate of corporate reforms that will keep Juul products out of the hands of underage Washingtonians.

According to the consent decree, JUUL will pay $22.5 million over the next four years. The attorney general’s office will establish a new Health Equity unit with the money to combat deceptive, discriminatory practices that disproportionately affect vulnerable communities and communities of color through enforcement, education and outreach.

The consent judgment winds up the lawsuit filed by the attorney general in September 2020, accusing JUUL of violating the Consumer Protection Act by selling and marketing its vape products without telling consumers about the nicotine content on its package labels.  The lawsuit also alleged that JUUL exacerbated a “pervasive and staggering” rise in e-cigarette use and nicotine addiction among youth by marketing its fruity, sweet, dessert-flavored products specifically to youth.

JUUL’s “Vaporized” campaign was cited. It ran on social media platforms like Instagram, Twitter and Facebook and featured young models and bright colors. The company was also accused of encouraging its followers to post about its products and hiring brand ambassadors and influencers to market them to youth.

In addition to paying the fine, JUUL must operate a retailer-compliance program for all of its locations in the state. The company will send “secret shoppers” to conduct no fewer than 25 compliance checks for age verification at retail stores per month for at least two years. It must update the attorney general’s office with details and results of the program every three months, according to the settlement.

JUUL has also agreed to stop marketing and advertising its products on social media platforms such as Facebook and Instagram, halt most of its social media promotions, and accurately promote the content and effects of nicotine in its e-cigarettes. According to the consent decree, it must stop marketing on LinkedIn, Twitter, and YouTube with very few exceptions and must report content about products posted by underage users.

In June 2021, North Carolina Attorney General Josh Stein announced a settlement with that JUUL for $40 million to end claims that it “aggressively marketed products to youth and spurred a wave of teen vaping addiction,” Law360 noted. Similarly, Arizona Attorney General Mark Brnovich said the state settled with JUUL for $14.5 million in November 2021 over its advertising practices in Arizona.

Washington State is represented by assistant attorneys general Rene D. Tomisser, Joshua Weissman and R. July Simpson. Juul is represented by Angelo J. Calfo, Damon C. Elder, Kendall Cowles, and Harold Malkin of Calfo Eakes LLP; and Katherine R. Katz, Peter Farrell, Zharna Shah and Jason Wilcox of Kirkland & Ellis LLP. The case is State of Washington v. JUUL Labs Inc., case number 20-2-13366-3, in the King County Superior Court.

The Beasley Allen JUUL Litigation Team

Beasley Allen lawyers, led by Joseph VanZandt, have been heavily involved in the JUUL litigation for several years. Our lawyers 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 has filed JUUL lawsuits nationwide on behalf of school districts. 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. Members are Joseph VanZandt, Sydney Everett, Beau Darley, Davis Vaughn, Seth Harding or Soo Seok Yang. Andy Birchfield heads the firm’s Mass Torts Section and works closely with the team on the JUUL litigation.

THE ASBESTOS LITIGATION

Establishing Liability: The Corporate Representative Deposition In Asbestos Cases

Because a single asbestos lawsuit often alleges liability against more than 20 defendants, one case may require the plaintiff to prove as many as 20 different defendants knew or should have known about the dangers of asbestos during the relevant time.  To complicate matters, almost all witnesses who had personal knowledge of these issues are no longer alive.

So how do asbestos plaintiff attorneys establish the corporate knowledge necessary to show that a defendant was negligent in using, distributing, or manufacturing an asbestos-containing product?

One of the ways to do this is by deposing the defendant’s corporate mouthpiece, also known as a corporate representative.  Whether your state describes this person as a “person most knowledgeable” or a “30(b)(6) witness,” their role is similar in many asbestos cases.  They are the person designated by the company, pursuant to a notice, to answer questions related to company knowledge about asbestos.  Like any other corporate representative deposition, defendants with quality counsel rarely give up much useful information without being forced.  This is usually done by using exhibits that limit their ability to be evasive or flat-out lie.

The problem for an asbestos case with 20 or more defendants is that each respective defendant may have a different “liability story” that the plaintiff attorney must uncover.   In a recent case, we had defendants who manufactured gaskets, packing, pumps, valves and automotive brakes and clutches.  To establish liability, we needed to understand and be able to prove what each of these defendants knew when they knew it and have documents to point to in support of this. If our client had an attorney representing them who did not understand and appreciate these subtleties, the client’s case, unfortunately, would have been a failure.

Thankfully, at Beasley Allen, our mesothelioma and asbestos lawyers have extensive experience dealing with all of the industries and kinds of defendants that show up in asbestos litigation.  Because of that, we can establish the crucial elements of knowledge and duty for our clients and ensure their cases are a success, just as we were able to in the case involving the client mentioned above.

The Beasley Allen Asbestos Litigation Team

Asbestos litigation continues to be extensive nationwide. Beasley Allen’s Asbestos Litigation Team is headed by Charlie Stern. Other team members are Will Sutton and Cindy Lopez. Rhon Jones, who heads 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 Beasley Allen team. If you need assistance with cases involving asbestos products, contact us.

MASS TORTS LITIGATION

Motion To Consolidate Granted In Belviq Litigation

There have been some important developments recently in the Belviq litigation. For example, on March 22, 2022, Judge Harz, in Bergen County, New Jersey, granted the plaintiff’s Motion to Consolidate 15 claims for pretrial proceedings.  The court agreed with the plaintiff’s position that common questions of fact exist involving these matters.  Further, common questions of law also exist regarding the same causes of action, such as design defect and failure to warn and punitive damages against both defendants Eisai, Inc. and Arena Pharmaceuticals, Inc. for their weight loss drug Belviq.

Belviq, or lorcaserin hydrochloride, was FDA-approved in 2012 for weight management in adults with a BMI of 30 or greater or a BMI of 27 or greater in patients who had at least one weight-related condition, such as high blood pressure, type 2 diabetes, or high cholesterol.  An extended release of the drug, Belviq XR, was later approved in 2016.  After its initial approval, the manufacturers conducted a 4-year clinical trial, which ultimately showed an increased risk of certain cancers, the most prevalent of which were pancreatic, colorectal, and lung cancer.  The clinical trial concluded on May 14, 2018, but results were not posted until more than a year later, on July 16, 2019.  Belviq was later recalled in January 2020 due to these findings.

Beasley Allen lawyers have filed 14 cases against the manufacturers of Belviq, and most are filed in New Jersey state court, where one of the manufacturers, Eisai, Inc., is located.  The cases allege multiple cancer types, including pancreatic cancer, breast cancer, colorectal cancer, kidney cancer, thyroid cancer, esophageal cancer, and brain cancer.  Beasley Allen continues investigating cases on behalf of individuals prescribed Belviq who were subsequently diagnosed with cancer. 

Sources: Rose v. Eisai, Inc., et al., BER-L-1208-21, Trans ID: LCV2022672561; LCV20221197456

Philips Respironics Litigation Update

As previously reported, Philips Respironics issued a voluntary recall on June 14, 2021of over 15 million CPAP, BiPAP, and ventilator devices, at least half of which are used daily in the United States. The device recall was due to the degradation of the polyester-based polyurethane foam used to reduce the sound and vibration of the device. When this breakdown occurs, black pieces of foam, and even chemicals that cannot be seen, are potentially inhaled or swallowed by the device user. This ingestion has been connected to the potential development of irritation to the skin, eyes, nose, and respiratory tract; inflammation; asthma; nausea; vomiting; and cancer.

Since the recall was voluntarily undertaken by Philips, several FDA investigations began. On March 10, 2022, the FDA issued a notification order to Philips Respironics that required the company to notify all users of its devices to recall certain CPAP devices. This enactment resulted from the FDA’s determination that Philips’ efforts to inform users of the recall were inadequate. Then again, on March 14, 2022, the FDA responded to the outcry of patients for new machines who still needed to use their recalled device due to health concerns.

Philips’ “first-come-first-serve” strategy was found lacking, so a new prioritization approach for replacement devices was implemented. Now patients using a recalled device are asked to use an online portal to request a prioritized spot on the device replacement list.

Beasley Allen lawyers are investigating claims for the users of the recalled machines who have suffered from the adverse effects of the recalled Philips Respironics machines. For more information, contact Beau Darley or Melissa Prickett, lawyers in our Mass Torts Section.

The MDL is In re: Philips Recalled CPAP, Bi-Level PAP and Mechanical Ventilator Products Litigation, case number 2:21-mc-01230, in the U.S. District Court for the Western District of Pennsylvania.

Sources: FDA.gov and NBCChicago.com

How Does Benzene End Up In Sunscreen And Other Personal Care Products?

Beasley Allen lawyers are investigating cases related to the link between benzene and cancer. The Environmental Working Group (EWG) recently published a new article regarding products containing benzene and the link to cancer. Benzene has been linked to low red blood cell levels and leukemia. The EWG is an organization that has been protecting consumers since 1993. The group researches the safety of consumer products and publishes lists that allow consumers to make informed choices. Personal care products are not required by the FDA to be tested using the most basic safety testing. EWG is an excellent resource for consumers.

Benzene is a petroleum-derived toxic chemical found in sunscreen and many other personal products, including antiperspirants and deodorants, hand sanitizers, antifungal treatments, and spray shampoo and conditioners. This finding eventually led to some recalls by CVS, Proctor a & Gamble and Johnson & Johnson.

It should be noted that benzene has not been added to the products. It is in the products by contamination. How does this happen? EWG informs us that this is still a mystery:

The highest detections of benzene have been in aerosol spray products. FDA scientists hypothesize that contamination may come from inactive petroleum-derived ingredients, such as carbomers, a thickening agent, or isobutane, a spray propellant.

The benzene could also come from ethanol produced without adequate purity control. When you use a product with benzene, your health may be at risk, whatever the reason.

The EWG advises consumers to avoid aerosol-based products. Consumers can search for recommended products and find safety information here: https://www.ewg.org/skindeep/ and through EWG’s Healthy Living App https://www.ewg.org/apps/.  The EWG has also published lists here:  https://www.ewg.org/sunscreen/best-sunscreens/best-beach-sport-sunscreens/

To find out more about our firm’s cases involving benzene in sunscreen products, contact David Byrne or Melissa Prickett, lawyers in our Mass Torts Section.

Source: EWG.org

Infant Formula Litigation Update

In several of our prior issues, we reported our involvement in litigation surrounding the development of Necrotizing Enterocolitis (NEC) in premature infants fed cow’s milk-based infant formula products.  Last month, we wrote about the Judicial Panel on Multidistrict Litigation (JPML), hearing arguments about whether there should be a consolidation of infant formula cases filed in federal court into a multidistrict litigation (MDL). On April 8, the JPML entered an order granting the motion for consolidation and establishing an MDL before Judge Rebecca R. Pallmeyer in the Northern District of Illinois.

Although much of our prior writing on this topic has centered around cases filed in federal court, there are also a number of infant formula cases filed in various state courts across the country, including several dozen in Illinois.  On March 22, defendant Abbott Laboratories filed a motion to consolidate all cases pending in Illinois state court for pretrial proceedings. The parties have previously agreed to an informal consolidation of the cases pending in Madison County, Illinois. If approved, this consolidation would apply to cases filed across the state and transfer them to Lake County, Illinois.

Like an MDL consolidating federal court cases, if Abbott’s motion is granted, consolidation of state court cases will temporarily bring all pending cases before a single judge so that pre-trial decisions will remain consistent across cases.  On April 26, the Supreme Court of Illinois denied the motion without prejudice, allowing the parties to make additional motions for consolidation.

David Dearing and Brittany Scott, lawyers in our firm’s Mass Torts Section, are aggressively investigating and filing these cases.

EMPLOYMENT AND FLSA LITIGATION

EEOC Issues New Post-Pandemic Guidance For Caregivers

Since the COVID-19 pandemic in 2020, caregivers have seen unique challenges related to the pandemic that the U.S. Equal Employment Opportunity Commission addressed in March 2022 via the publishment of guidance via a new technical assistance document (Guidance). Several issues are addressed throughout the Guidance, including when discrimination violates federal employment discrimination laws, examples of unlawful discrimination, classes of people with whom discrimination issues could arise, whether reasonable accommodation is available to caregivers, and what employees should do if they believe that they are being subjected to discrimination.

Discrimination against caregivers and applicants (collectively caregivers) violates federal employment discrimination laws when the discrimination is based on a caregiver’s gender identity, pregnancy status, sexual orientation, disabled persons within the meaning of the ADA, race, ethnicity, and intersections characteristics or other protected characteristics.

Some examples of unlawful employment discrimination would include the following situations. When a woman is applying to be a caregiver, but the applicant has school-aged children at home, an employer cannot determine not to hire the woman based on the assumption that she would give too much attention to her virtual learning children. While they may not withhold employment based on the assumption, employers would not be required to grant requests for specific schedules or limit extra hours or travel requirements should accommodation requests be made.

If a man, rather than a woman, were to request accommodations for leave or flexible schedules that are allowed for similarly situated women, denial for that man would likely rise to a violation of the federal employment discrimination laws.

Employers cannot refuse to hire pregnant applicants because of their pregnancy status. Employers cannot require pregnant employees to telework or limit contact with their colleagues, even if the employer’s reason is alleged to be altruistic. But employers can allow pregnant employees to voluntarily adopt the same or similar measures. There may be some rights under Title VII for modified responsibilities or reasonable accommodations or leave available for pregnant women. Still, it would depend on the employer’s non-pregnancy-related modifications of assignments due to COVID-19 or otherwise.

Generally, if a modification is allowed for non-pregnancy-related conditions, it should also be permitted for pregnancy-related conditions. Pregnancy is not a disability under ADA, but some related conditions could be disabilities under the law.

Likewise, while employers cannot discriminate against a person based on their age or “age-related stereotype,” an older person is not entitled to reasonable accommodations for caregiving purposes.

For the most part, this updated guidance shows that employers must follow the same rules and regulations related to discrimination against persons belonging to protected classes. Lawyers in our firm’s Consumer Fraud & Commercial Litigation Section are following the EEOC’s updated guidance related to COVID-19 and its after-effects. Beasley Allen takes employment discrimination claims seriously, and our lawyers look forward to assisting clients with these types of issues.

Sources: Equal Employment Opportunity Commission

The Beasley Allen Employment Litigation Team

The following lawyers are on the Employment Litigation Team at Beasley Allen: Lance Gould, Larry Golston, Leon Hampton and Lauren Miles.

PREMISES LIABILITY LITIGATION

Shopping Centers Are Prime Targets For Criminal Activity

There are few things the American consumer loves more than shopping. Every year, consumers spend trillions of dollars at local retail establishments, and spending continues to grow, notwithstanding the rise of e-commerce businesses. While shoppers are often more concerned with parking and getting into a store to shop and then finding their car afterward, they may not know that criminals target these same places. Criminals know that shoppers do not live or work at these places and that they are likely preoccupied. They also know that shopping areas can be chaotic, especially in busy seasons.

For the past few years, shoppers at large malls have confronted first-hand the reality of how criminals target these places. Lennox Square Mall, a beautiful shopping center in Buckhead, Atlanta, is home to some of the most prestigious brands in the consumer sphere. It has also been a prime target for criminal activity, where people have been mugged, raped, and shot (on multiple occasions) in and around the property. Thankfully, the mall has recently increased its security, but it was plagued with serious criminal activity for months – if not years.

Shopping malls present numerous vulnerabilities to customers that every property owner should know. For example, one of the most dangerous places in a shopping center is the parking lot. Vehicles provide cover for criminals. Parking lots can also be chaotic, masking the presence of criminals.

In addition, for potential carjackers, customers are often close to their vehicles. Customers are also typically walking with their wallets and the purchases they have made, which makes them prime targets for theft. Depending on where the theft occurs, parking lots are often close to quick exit areas so criminals can get away undeterred.

Finally, and perhaps most importantly, property owners are often far more concerned about the security of the interior of a store as opposed to the exterior because the interior is where the financial transactions are occurring. As a result, some property owners choose to take little to no action to deter criminal actors in their parking lots, even when those parking lots have a history of criminal victimization.

It is worth noting that criminal actors at large shopping centers can, and often do, operate in teams to identify and exploit security vulnerabilities and potential victims. There are various reasons why property owners must take action to deter foreseeable criminal activity. Obviously, maintaining a safe environment is good for their (and surrounding) business because customers need to feel safe so they will return to shop.  And certainly, all of society is impacted when a customer is severely injured or killed.

If you or someone you know has been injured at a Georgia shopping center, or you have questions about this area of law, contact Parker Miller, a lawyer in our Atlanta office.

Landlord Failure To Install Smoke Detector

Lawyers in our firm’s Montgomery, Atlanta and Mobile offices have handled many premises liability cases over the years. These include cases in which a tenant is severely injured or killed in a fire due to the negligence of their landlord. Of course, some of the first things that come to the mind for many people when they think of fire safety and prevention are smoke detectors.

In Georgia, the installation and maintenance of smoke detectors are governed by statute.^[1] While defense counsel is quick to assert that the statute does not impose a requirement on a landlord to maintain a battery operated smoke detector on the premises, a landlord is still required to ensure that a smoke detector is installed in the first place. A landlord may be found negligent for breaching his statutory duty if he fails to install a smoke detector properly.^[2] Moreover, Georgia courts have held that a landlord may still be found liable for failing to install a smoke detector on the premises even if a subtenant was awake and alerted of the danger of the fire when the fire occurred.^[3] This is because “[t]he purpose of a smoke detector is to provide an early warning of fire and reduce the damages and injury resulting therefrom.”^[4]

Georgia lawyers handling fire cases should keep all of the above in mind when evaluating and investigating a potential claim stemming from a fire in a leased dwelling.  Regardless of the type of case, however, a tenant may have a viable claim if the tenant was injured due to the negligent acts and / or omissions of their landlord. Parker Miller and Houston Kessler, lawyers in our Atlanta office, handle these fire-related cases and numerous other premises liability cases across Georgia and other states.

Citations:

• [1] O.C.G.A. §25-2-40 (Stating in part, “[E]very new dwelling and every new dwelling unit with an apartment, house, condominium, and townhouse must be provided with an approved listed smoke detector installed in accordance with the manufacturer’s recommendations and listing.”).
• [2] See. Id.
• [3] See Gordon v. Fleeman, 298 Ga. App. 662, 680 S.E.2d 684 (2009).
• [4] Id. at 667 (emphasis added) (citation omitted).

THE PARAQUAT LITIGATION

The Bellwether Selection Process In The Paraquat MDL

The Paraquat Products Liability Litigation MDL was formed on June 8, 2021 (case No. 3:21-MD-3004), with Chief Judge Nancy J. Rosenstengel of the Southern District of Illinois presiding.

On March 7, 2022, Judge Rosenstengel entered an Order entitled Amended Protocol For The Selection Of Trial Cases. The Court’s Order can be found on the Court’s web page regarding the paraquat litigation: http://www.ilsd.uscourts.gov/mdl/mdl3004.aspx.  Below is a summary of the bellwether selection process, including the Court’s latest Order.

The parties were previously directed to select eight cases on behalf of the Plaintiffs for bellwether trial selection and eight cases on behalf of the Defendants.  Depositions of the 16 selected plaintiffs were completed in March 2022.   The parties have now been directed to rank the 16 cases in the bellwether pool in order of preference.   The rankings aim to find the most “representative” cases in the MDL for bellwether trials regarding plaintiffs’ and defendants’ respective positions.  The court selected the final cases for a full trial workup on April 15, 2022.

Beasley Allen attorney Julia A. Merritt is a member of the Plaintiffs’ Executive Committee on the Paraquat MDL.  The paraquat litigation team would be happy to answer any questions about the status of this litigation or the intricacies of the intake process, including the Plaintiff’s Assessment Questionnaire. Beasley Allen continues accepting cases where clients applied paraquat and have Parkinson’s Disease or Parkinson’s-like symptoms. Please contact us if we can assist you in your paraquat applicator cases.

The Paraquat Litigation Team

The Paraquat Litigation Team at Beasley Allen, consisting of lawyers in our Toxic Torts Section, handles the paraquat applicator cases. The lawyers on the team are Julia Merritt, who heads the team, Trisha Green, and Matt Pettit. Rhon Jones heads our Toxic Torts Section and works with the team on this important litigation.

TOXIC TORT LITIGATION

PFAS Class Action Update

A class of nearly 7 million people in Ohio has been certified in Hardwick v. 3M.  Initially, the proposed class could have included almost every person in the U.S. with detectable amounts of PFAS in their blood.  PFAS are a class of thousands of PFAS chemicals, and they are found in many different consumer, commercial, and industrial products.  PFAS are found in water, air, fish, and soil at locations across the nation.  PFAS are widely used, long-lasting chemicals and components which break down very slowly over time.  Because of their widespread use and persistence in the environment, many PFAS are found in the blood of people and animals worldwide and are present at low levels in various food products and the environment.

The proposed class seeks, among other remedies, medical monitoring similar to the “C8 Science Panel,” which studied the effects of the PFAS known as PFOA or C8 and its impact on human health near a DuPont facility in Parkersburg, West Virginia.  The Ohio state court in Hardwick recognized that the proposed nationwide class would apply to citizens in states where medical monitoring is not available as a remedy but left the door open to expansion of the certified class beyond residents of Ohio.

This class certification has immense ramifications for PFAS manufacturers, who could be held liable for damages in the billions for testing and monitoring PFAS present in class members’ blood.  Defendants have filed interlocutory appeals to the Sixth Circuit.

Sources: National Law Review and EPA

3M Earplug Litigation Update

Jurors in Pensacola, Florida, recently awarded $50 million to a U.S. Army veteran who suffered permanent hearing loss and severe tinnitus after using 3 M’s Combat Arms Earplugs Version 2 for over ten years. The same day a Tallahassee jury awarded $8 to an Army National Guard veteran who also developed hearing loss and tinnitus in a similar case. But, two weeks later, in early April, another jury in Pensacola sided with 3M.

Meanwhile, 3M moved for an order requiring more than 180,000 plaintiffs in the administrative docket to immediately pay filing fees, arguing the lack of fees thus far has allowed unvetted claims to flood the MDL. The judge denied 3 M’s motion and noted that no plaintiff had been allowed to proceed with a claim before paying the fees, and based on the court’s timeline, all plaintiffs on the administrative docket will have either paid the fee and moved to the active docket or dropped their case within the coming months. The judge added that the “extraordinary lengths” the court has gone to in eliminating cases where plaintiffs failed to fulfill various obligations would not have happened without creating the administrative docket.

To date, plaintiffs have won verdicts totaling about $200 million in eight of the 14 bellwether trials. The case is In re: 3M Combat Arms Earplug Products Liability Litigation (case number 3:19-md-02885) in the U.S. District Court for the Northern District of Florida. If you have any questions about the 3M litigation, contact Will Sutton.

Source: Reuters

ROUNDUP LITIGATION

Judge Gives Initial Approval To Roundup Labeling Settlement

A federal judge said he is prepared to approve a nationwide settlement reimbursing consumers for their Roundup purchases on the condition that it leaves no doubt that they can still sue the manufacturer should they develop cancer. Courthouse News reported that U.S. District Judge Vince Chhabria wrote his order on April 20:

The court is inclined to preliminarily approve the proposed class settlement so long as it does not run the risk of confusing anyone about their future right to sue Monsanto if they suffer injury or sickness from using Roundup.

Judge Chhabria also reaffirmed misgivings he had expressed in an April 14 preliminary approval hearing, saying:

As was discussed at the hearing, the current notice is inadequate in this regard, as it does not clearly inform potential class members that if they participate in the settlement, they will retain the right to sue Monsanto based on any illness or injury they may suffer now or in the future as a result of using Roundup.

Judge Chhabria ordered both sides to submit revised notices within 28 days. The order said:

The revised notices must clearly and conspicuously inform potential class members that, if they were to develop non-Hodgkin lymphoma or any other injury or illness, their ability to sue Monsanto based on that injury or illness would not be affected by the settlement.

Last year, Monsanto agreed to pay between $23 million and $45 million to resolve a false advertising class action. That case, brought by lead plaintiff Scott Gilmore, claimed consumers overpaid for Roundup because the herbicide was packaged and sold without a label warning about the chemical’s carcinogenic properties.

Under the settlement, those who purchased Roundup products but lacked receipts may claim up to 20% of the average retail price for no more than 11 Roundup products. That means the Bayer-owned agrochemical company would pay between $0.50 and $33.00 per bottle, depending on the size of the product. Consumers with proof of purchase would be able to claim an unlimited number of bottles. However, Judge Chhabria said the proposed class notice needed to make it very clear that consumers who file claims for reimbursement do not have to surrender their rights to sue Monsanto for personal injuries in the future. He wrote:

If we’re going to approve a settlement like this we’d better make darn sure that the settlement process is not going to confuse anybody into believing they have given up their rights to sue Monsanto if they develop non-Hodgkin lymphoma, adding that if 0.1% of class members were confused by the class notice, the settlement would have to be rejected for that reason alone.

Bayer, a multinational conglomerate based in Germany, bought for $63 billion in 2018, despite the raging controversy that Roundup and its active ingredient glyphosate caused cancer. The class action settlement comes as the corporation tries to resolve thousands of lawsuits alleging that the weedkiller causes non-Hodgkin lymphoma.

Bayer agreed in June 2020 to pay $10.9 billion to settle nearly 100,000 lawsuits brought by plaintiffs alleging Roundup caused their cancer. Judge Chhabria, however, rejected another deal proffering $2 billion to settle claims from currently healthy Roundup users who may develop non-Hodgkin lymphoma in the future.

The litigation has helped bring the widespread sale and use of glyphosate products to an end. Although Bayer continues to stand behind its assertions that Roundup is safe, it will remove glyphosate-based products from retail shelves by 2023 – a move it says will prevent future glyphosate litigation.

Source: Courthouse News

CLASS ACTION LITIGATION

Eastern District Of Michigan Judge Certifies Class Action Lawsuit For Ford’s Defective Brakes

Dee Miles, Clay Barnett, Mitch Williams, Dylan Martin, and Rebecca Gilliland, lawyers in our firm’s Consumer Fraud & Commercial Litigation Section, are pursuing a very important class action lawsuit against Ford Motor Company (Ford), filed in the Eastern District of Michigan. Our plaintiffs allege that Ford equipped its 2013-2018 F-150 trucks with defective Hitachi manufactured step-bore brake master cylinders that can suffer unexpected hydraulic pressure loss, resulting in longer stopping distance and increased risk of a vehicle crash.

On April 8, 2022, U.S. District Court Judge Gershwin A. Drain rejected much of Ford’s Motion for Summary Judgment. In his order, Judge Drain found that:

• based on Ford’s own warranty data, engineer testimony, and internal documents, a reasonable jury could conclude Ford had pre-sale knowledge of the Brake System Defect;
• whether Ford’s 2016 Recall remedied the defect remains a question of fact for the jury; and
• Ford was not entitled to summary judgment on the plaintiff’s alleged injury.

Additionally, Judge Drain found that Ford provided no evidence to challenge the plaintiffs’ reliance on Ford’s fraudulent omissions when purchasing/leasing their class vehicles.

More importantly, Judge Drain agreed that the plaintiffs’ defect claims were right for a consolidated jury trial by certifying a Rule 23(c)(4) issues class for all persons who purchased or leased in Alabama, California, Florida, Georgia, and Texas a 2013-2018 Ford F-150 equipped with a Hitachi made step-bore master cylinder not included in Safety Recall 20S31. While Judge Drain was disinclined to order certification of injunctive relief and damages classes, he did hold that common questions of fact exist and warrant a jury’s decision—namely, whether there is a Brake System Defect in the Class Vehicles, whether Ford had pre-sale knowledge of the Brake System Defect, and whether the Brake System Defect is material.

Beasley Allen and its co-counsel were slated to present Judge Drain with a proposed class notice document in late April as this Report was going to print. Following Judge Drain’s sign-off, the notice (a notification to class members of the upcoming F150 brake defect trial) will mail to owners and lessees of all 2013-2018 F150 trucks in Alabama, California, Florida, Georgia and Texas.

No matter the engine package, these trucks are at risk for either external brake fluid escape or internal brake fluid bypass, both of which cause loss of the front brakes and shift the responsibility of braking on the rear brakes.

Both brake pressure failure mode creates a sudden hazard for occupants in the disabled F150 and other vehicles on the road in the path of a runaway truck.

Ford contends that these serious safety hazards are best resolved with underinclusive serial recalls or routine trips to the dealership for service. Ford is wrong and putting people in danger.

Dee Miles, who heads our firm’s Consumer Fraud and Commercial Litigation Section, is appointed as Co-Lead Class Counsel and class representative according to Federal Rule of Civil Procedure 23(g).

High Court Considering Whether California Private Attorneys General Act Claims Are Subject To Arbitration And Class Action Waivers

Last month, the United States Supreme Court heard oral arguments over whether labor violation claims under the California Private Attorneys General Act (PAGA) are subject to the Federal Arbitration Act (FAA). The case, Viking River Cruises, Inc. v. Angie Moriana, Case No. 20-1573, has potentially large ramifications if the Supreme Court rules that arbitration agreements with class action waivers are enforceable against PAGA representative actions, which are regularly filed against California employers who violate the state’s labor laws.

In 2004, California passed the PAGA, which provides employees a cause of action to file suit on behalf of the government against employers who violate the California Labor Code. Employees suing under the PAGA can assert claims for employment law violations of other employees. The law was passed to assign California’s interest in punishing and deterring labor law violations to employees harmed by those violations. Under the PAGA, any damages recovered due to a lawsuit go to the state.

Viking River Cruises, Inc. reached the Supreme Court after California state courts held that employment agreements with waivers of the right to aggregate claims under PAGA were unenforceable. In the case before the Supreme Court, counsel for the employer argued that PAGA actions were similar to the class actions the Supreme Court considered in Epic Systems Corp. v. Lewis. In 2018, the Supreme Court ruled in Epic Systems that arbitration agreements in employment agreements can include class actions waivers. In the wake of Epic Systems, many employers added arbitration clauses and class action waivers to ward off class actions alleging Fair Labor Standards Act violations.

At oral argument, several justices pushed back against the employer’s arguments that aggregate claims under PAGA are subject to arbitration and class action waivers like the class actions the Court considered in Epic Systems. Chief Justice John Roberts and Justice Stephen Breyer said that PAGA actions differ from class actions in part because the cause of action under PAGA belongs to the state rather than the employer.

Justice Breyer also noted that PAGA actions are more like qui tam actions, which are whistleblower actions rather than class actions. Justice Sotomayor said, at oral arguments:

If you preclude employees from bringing [PAGA] into arbitration, you are precluding the state from having an effective enforcement mechanism because each individual employee is not going to have a financial incentive to bring these suits on behalf of the state . . . . You are banking on destroying the state’s mechanism for enforcing labor law violations.

California currently recovers over $41 million per year in penalties from PAGA actions. Given the amount of damages that are recovered under the statute and California’s interests in deterring labor law violations, the decision by the Supreme Court is heavily anticipated. Lawyers in our firm continually monitor cases and legislation that potentially affect the right to litigate. We will keep readers updated on any decision by the Supreme Court in the Viking River Cruises, Inc. v. Angie Moriana.

Sources: Law360

Class Action Settlements

There have been a number of other significant class action settlements and one key U.S. Supreme Court decision during March, with several of them having received court approval. We will include some of these cases below.

$85 Million Settlement Over ‘Zoombombing’ Gets Approval

A California federal judge has given final approval to an $85 million settlement between Zoom Video Communications Inc. and class action members who lodged privacy and data concerns against the company.

In April, U.S. Magistrate Judge Lauren Beeler said she was ready to issue a final approval order for the class action settlement, upholding preliminary approval granted by U.S. District Judge Lucy Koh in October, according to a motion for approval of the settlement filed by the plaintiffs.

The class action alleges that so-called Zoombombing disruptions exposed users of the video conferencing platform to serious privacy and data concerns. Plaintiffs maintain that Zoom unlawfully shared their personal data with Facebook, LinkedIn, and other unauthorized third parties, failed to prevent the malicious disruptions, and misrepresented the strength of its encryption protocols.

While general Zoom users pushed for final approval of the settlement, several class members who used Zoom in a professional capacity objected to the motion for settlement.

A licensed mental health counselor, Judith Cohen, submitted a written objection noting that she and others who used Zoom’s services as part of their business were legally and contractually required to maintain client confidentiality. She said the settlement ignored the harm done to class members who relied on Zoom to conduct meetings that they were obligated to keep confidential.

The settlement satisfied the concerns of general users who claim they overpaid for Zoom services that were not encrypted. Still, Cohen and others claim the lack of confidentiality exposed them and their businesses to potential legal and professional consequences. Other harms the settlement does not adequately address, according to Cohen, include the chilling effect the Zoom platform likely had on businesses where confidentiality is a material part of the services offered due to public perceptions that Zoom communications are compromised.

Cohen’s lawyer, Ari Brown, said that his client will appeal the court’s settlement approval and expressed hope that the objection will be heard in the Ninth Circuit. He said that settlement insulates Zoom from liability because a professional who a client sues for a confidentiality breach could not file a third-party claim against Zoom.

Class members who want final approval of the settlement said Cohen is wrong to assert that she and other professionals who require full encryption to satisfy their legal or contractual obligations for confidentiality were harmed differently than general Zoom users. They said the litigation “is not a data breach case, where personally identifiable information was allegedly disclosed to hackers or identity thieves.”

General class members also assert that Cohen does not allege that Zoombombing actually caused her to lose clients. They say she also fails to explain how her injuries are worse than those suffered by general Zoom users and that she had an opportunity to opt out.

Under the settlement, paid subscribers of Zoom will be eligible to receive 15% of the money spent on subscriptions or $25, whichever is greater. Other members who did not pay for a subscription may submit a claim for $15. The settlement also stipulates that these claim amounts could go up or down depending on the number of claims made. Any unclaimed settlement money would be donated to the Electronic Frontier Foundation and the Electronic Privacy Information Center, both nonprofits.

According to the motion for final approval, the settlement provides class counsel with a 25% ($21.25 million) of the $85 million settlement fund.

Zoom has also agreed to make significant changes that will “improve meeting security, bolster privacy disclosures and safeguard consumer data,” according to the motion for final approval. Zoom is also required to better track and document Zoombombing reports, improve its communications about the disruptions with law enforcement, develop a suspend-meeting button, and block users from certain countries, among other measures.

Other class members made additional objections to the deal, who said the claim misleadingly required evidence, which discouraged many from submitting a claim.

The users are represented by co-lead counsel Tina Wolfson, Robert R. Ahdoot, Theodore Maya, Bradley K. King, and Christopher Stiner of Ahdoot & Wolfson PC and ​​Mark Molumphy, Tyson Redenbarger, Noorjahan Rahman, Julia Peng and Elle Lewis of Cotchett Pitre & McCarthy LLP. Zoom is represented by Michael G. Rhodes, Travis LeBlanc, Kathleen R. Hartnett and Benjamin Kleine of Cooley LLP. The case is In re: Zoom Video Communications Inc. Privacy Litigation, case number 3:20-cv-02155, in the U.S. District Court for the Northern District of California.

Yelp Investors Reach $22 Million Settlement To End Local Biz Retention Suit

Yelp investors are seeking preliminary approval from a California federal court for a $22.25 million agreement to resolve their claims accusing the customer review platform of concealing a drop in business advertising revenue that company executives allegedly anticipated.

The investor complaint, filed in January 2018 and amended the following June, alleges that Yelp and its CEO Jeremy Stoppelman, former Chief Financial Officer Lanny Baker and Chief Operating Officer Jed Nachman had touted the strong retention rate and optimistic growth projections of Yelp’s advertising programs in February and March of 2017.

However, the investors allege that the defendants knew that much of Yelp’s revenue growth in 2016 came from businesses that the company acquired through promotional offers and that had signed one-year contracts valid for just one year.

According to the amended complaint, “Defendants expected that a substantial number of customers would start canceling their contracts in late 2016 and [the first quarter of 2017 when the advertisers would no longer have to pay a termination fee.”

Yelp investors said the company used heavy fees to discourage advertisers from terminating their contracts early. However, a significant number of businesses that signed up experienced low engagement with their advertising and were able to terminate their contracts in late 2016 and early 2017.

According to the investors’ complaint, Stoppelman admitted on an earnings conference call with the public in Feb. 2018 that he and other Yelp executives had anticipated that advertisers brought in on the early 2016 promotional campaign would soon “churn off.”

But despite knowing that advertising revenues were set to decline, Yelp executives continued to underscore the company’s high advertiser retention rates throughout 2016, investors alleged. The investors asserted that they did this even as the company experienced weak advertiser retention levels from late 2016 through February 2017.

The investor complaint further alleged that while Stoppelman was concealing the company’s weak advertiser retention levels, he dumped $25 million of Yelp stock in February 2017.

Yelp executives didn’t disclose until May 2017 that the company suffered a loss of tens of millions of dollars in revenue due to the allegedly anticipated advertiser contract expirations.

According to the suit, news of the giant revenue drop resulted in Yelp’s stock price plummeting. Yelp has claimed that investors had reacted to the dire May 2017 announcement, and not any fraud, as the investors alleged.

The investors said their claims potentially could have brought in a much higher award than the settlement amount. They staked the claim on a damages expert who estimated that if they had brought their securities fraud claims before a jury and prevailed entirely in them, the class could have won $180 million. Thus, the actual settlement amount is just 12.4% of the maximum damages they could have potentially recovered.

The investors also noted that Yelp had raised arguments about its liability, loss causation and damages that could have significantly diminished or eliminated recoverable damages had those arguments been accepted.

The plan for allocating the $22.25 million settlement calculates a “recognized loss amount” for each Yelp common stock purchased between Feb. 10, 2017, and May 9, 2017, based on certain factors, including when the stock was sold, and the purchase and sales price, the investors’ motion for approval stated. They also said that 100% of the net settlement fund would be distributed to harmed investors. Investors ‘ lawyers said that any settlement payouts that go uncashed or returned would be re-distributed among authorized claimants if they are enough to be cost-effective.

According to Law 360, the settlement follows a September decision by U.S. District Judge Edward M. Chen denying Yelp’s motion for summary judgment. In that ruling, Judge Chen wrote:

“A trier of fact could reasonably conclude that these statements were misleading because there is ample evidence in the record that defendants made these statements knowing that Yelp had a systemic problem with retaining local advertisers.”

The investors are represented by Corey D. Holzer and Marshall P. Dees of Holzer & Holzer LLC and Christopher R. Fallon, Kara M. Wolke, Kevin F. Ruf and Nancy S. Pang of Glancy Prongay and Murray LLP. The case is Jonathan Davis et al. v. Yelp Inc. et al., case number 3:18-cv-00400, in the U.S. District Court for the Northern District of California.

Ranbaxy Buyers Seek Approval On $485 Million Settlement In Generics MDL

Ranbaxy Pharmaceuticals wholesalers and end-payor plaintiffs have asked a Massachusetts federal court to approve a $485 million global settlement resolving allegations that the generic drug maker violated antitrust laws.

In the multidistrict litigation (MDL), plaintiffs reached the settlement agreement in March. If approved, the deal would bring to an end claims that Ranbaxy and its parent company manipulated the Food and Drug Administration’s (FDA)’s drug approval process to eliminate competition for three of its drugs

The generic drugs at the center of the MDL are Valcyte, an antiviral drug, Diovan, a drug used to treat high blood pressure, and Nexium, which treats acid reflux.

End-payor health care plans alleged that Ranbaxy wrongfully obtained exclusivity periods for the drugs to keep its drug prices high. This move delayed the eventual launch of generic versions by other manufacturers.

Drug wholesalers and others alleged that Ranbaxy’s purported scheme to stave off competition led them to pay higher prices for the drugs.

The lawsuit also alleges Ranbaxy violated the Racketeer Influenced and Corrupt Organizations Act, federal and state antitrust laws and state consumer protection laws.

Plaintiffs said, in a pair of motions for preliminary approval of the settlement, that $340 million would be paid to direct purchasers. The other $145 million would go to the end payors.

Overall, the $485 million settlement would be split among the plaintiffs in five cases consolidated for MDL in 2019. End-payor plaintiffs United Food and Commercial Workers Health and Welfare Fund of Northeastern Pennsylvania, Blue Cross and Blue Shield of Louisiana and HMO Louisiana Inc. started settlement discussions in October and reached an agreement in March.

According to the motion, up to $225,000 of the end payors’ settlement funds may be used to pay administrative expenses. The named plaintiffs were appointed class representatives. The law firm of Lowey Dannenberg and the Dugan Law Firm were formally appointed as lead class counsel after the end payors were certified as classes in 2021.

The litigation, in this case, followed protracted investigations of Ranbaxy by the FDA and DOJ. Results of those investigations led to Ranbaxy pleading guilty and paying a $500 million fine in 2013 for lying to regulators and producing drugs that failed to meet government safety standards.

The end-payor plaintiffs are represented by Lowey Dannenberg PC, The Dugan Law Firm APLCand Blue Cross and Blue Shield of Louisiana. The direct purchasers are represented by Hagens Berman Sobol Shapiro LLP, Hilliard Shadowen LLP, Radice Law Firm PC, Sperling & Slater PC, Kessler Topaz Meltzer & Check LLP, Wexler Wallace LLP, Cohen Milstein Sellers & Toll PLLC and Nussbaum Law Group PC. The case is In re: Ranbaxy Generic Drug Application Antitrust Litigation, case number 1:19-md-02878, in the U.S. District Court for the District of Massachusetts.

Source: Law360.com

Wonder Bread Maker And Drivers Get Approval For $23 Million Wage Settlement

Wonder Bread maker Flower Foods Inc. agreed to pay $23.1 million to resolve three cases claiming it misclassified distributor drivers as independent contractors and, as a result, failed to pay overtime and unlawful paycheck deductions.

U.S. District Court for the District of Maine Judge Lance E. Walker approved the settlement last month, determining the workers will receive significant monetary and other benefits and that the requested fees for the plaintiffs’ attorneys are reasonable. Judge Walker said:

Here, the amount of monetary recovery combined with the significance of the injunctive relief, which will provide many class members with employee benefits, supports final approval of the settlement.

The settlement wraps up the last of the pending claims filed in December 2015 by Timothy Noll in a proposed class and collective action. According to Law 360, Noll alleged: “that Flower Foods, Lepage Bakeries Park Street LLC and CK Sales Co. LLC, which distributes Lepage products, violated both federal and state laws by misclassifying distributor drivers as independent contractors, preventing them from receiving certain legal protections and benefits mandated for employees, such as minimum wage and overtime.”

The order noted that the decertification of a Fair Labor Standards Act collective in this case resulted in “about two-thirds of the former members reasserting their individual overtime claims against Lepage in two subsequent cases also resolved by the deal.”

The companies will pay $9 million to workers in a certified class who worked as distributors for Flowers Foods, Lepage or CK Sales from December 2021 until the settlement was reached in the Noll case. Law360 noted that ‘[m]any of those class members are also plaintiffs in the two other cases, per the decision.”

Judge Walker said that Lepage will pay an additional $6.6 million to repurchase the distribution rights of distributors and hire them as employees. This will provide them with future benefits such as insurance and retirement benefits.

The workers in all three cases are represented by Susan E. Ellingstad and Rachel A. Kitze Collins of Lockridge Grindal Nauen PLLP, Amy P. Dieterich of Skelton Taintor & Abbott, Shawn J. Wanta, Christopher D. Jozwiak and Scott A. Moriarity of Baillon Thome Jozwiak & Wanta LLP, and J. Gordon Rudd and David M. Cialkowski of Zimmerman Reed LLP.

The cases are Noll v. Flowers Foods Inc. et al., case number 1:15-cv-00493, Aucoin et al. v. Flowers Foods Inc. et al., case number 1:20-cv-00411, and Bowen et al. v. Flowers Foods Inc. et al., case number 1:20-cv-00410, in the U.S. District Court for the District of Maine.

Source: Law360.com

Class Action Lawyers At Beasley Allen

Beasley Allen is heavily involved in class action litigation around the country. Dee Miles, who heads the Consumer Fraud and Commercial Litigation Section, leads the effort. Other lawyers in the section who handle class action cases are Demet Basar, Lance Gould, Clay Barnett, James Eubank, Mitch Williams, Rebecca Gilliland, Rachel Minder, Paul Evans and Dylan Martin.

THE CONSUMER CORNER

Uber Can’t Escape $91 Million Arbitration Award On Appeal

A New York appellate panel has ruled that Uber can’t avoid a multimillion-dollar payment to the American Arbitration Association. The panel affirmed a state court judge’s denial of preliminary injunctive relief because the company had “failed to establish a likelihood of success on the merits for any of its claims.”

In a unanimous affirmation last month, a four-judge panel of the New York Appellate Division’s First Department rejected Uber Eats’ attempt to enjoin the AAA from issuing any more invoices to the company for arbitration costs.

The arbitration invoices total more than $91 million. The AAA is demanding the payments to cover the costs associated with more than 31,000 individual arbitrations, Consovoy McCarthy PLLC filed the claims under the terms of Uber’s customer agreement and arbitration provisions, alleging Uber engaged in “reverse” racial discrimination when it waived delivery fees for Uber Eats orders from Black-owned businesses. Uber Eats instituted the waiver for several months in 2020 in support of Black communities following the murder of George Floyd at the hands of the police.

The panel ruled that Uber Eats should pay the arbitration bills because it hasn’t shown how it could successfully pursue claims of breach of contract, fair dealing, unjust enrichment and unfair competition in violation of California’s Unfair Competition Law.

The appellate panel wrote:

Uber failed to demonstrate AAA breached any agreed upon terms by failing to charge fees commensurate with its reasonable, actual costs. While Uber is trying to avoid paying the arbitration fees associated with 31,000 nearly identical cases, it made the business decision to preclude class, collective, or representative claims in its arbitration agreement with its consumers, and AAA’s fees are directly attributable to that decision.

The appellate panel found that the AAA had appropriately charged the company when it decided how to handle tens of thousands of individual arbitration cases by dividing them into five different groups, to be paid for in corresponding tranches starting in April 2021. According to the order, Uber said it would pay the $91 million bill, but it did so “under protest.” Then, shortly after, Uber sued the AAA when it charged the company nearly $11 million for the second round of cases.

According to Law360, the appellate panel found that the AAA did not act “with dishonesty, deceit, or unfaithfulness to duty” when charging Uber even when it “chose not to exercise its discretion and reduce the fees after the parties could not agree to a more efficient manner of proceeding with over 31,000 arbitrations.”

The appellate court also agreed with the New York trial court’s finding that Uber would not suffer “irreparable harm” if a preliminary injunction were not issued against the AAA. The panel ruled that instead, Uber is “effectively seeking a substantial reduction to the additional $91 million AAA will invoice to arbitrate the claims.” The panel said the company could have avoided this by simply changing the process the AAA had proposed to deal with the 31,000 cases.

The appellate court’s decision delivers another blow to Uber’s efforts to fend off paying for the arbitration. In October, New York State Supreme Court Justice Robert Reed ruled  that he would not grant Uber an injunction against the $91 million payment, saying that the “company was in a nightmare of its own making for choosing to impose arbitration provisions on its users.”

Uber’s complaint, filed in September, states that a California statute imposes severe fines for failure to pay administrative fees for arbitration once invoiced, and that encouraged Consovoy McCarthy to file more than 31,000 arbitration demands, knowing the action would force Uber to pay millions in fees. Uber also accused the AAA of “playing along” with this scheme, which the company’s lawyers described as “extortionate.” Further, Uber asserts that while the AAA had initially agreed to reduce its fees by about 70% for the arbitrations, it later altered its course and confirmed it would be billing Uber more than $91 million.

Uber is represented by Roberta A. Kaplan of Kaplan Hecker & Fink LLP. AAA is represented by Daniel H. Weiner of Hughes Hubbard & Reed LLP and Theodore L. Hecht of Schnader Harrison Segal & Lewis LLP. The case is Uber Technologies Inc. v. American Arbitration Association Inc., case number 655549/2021, in the Supreme Court of the State of New York, County of New York.

Source: Law360.com

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

A New Look At Case Activity At Beasley Allen

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

• Practices
• Business Litigation
• Class Actions
• Consumer Protection
• Employment Law
• Medical Devices
• Medication
• Personal Injury
• Product Liability
• Retirement Plans
• Toxic Exposure
• Whistleblower

Cases

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, on the top navigation, or the Cases page of our website (BeasleyAllen.com/Recent-Cases/).

• Auto Accidents
• Aviation Accidents
• Belviq
• Benzene in Sunscreen
• CPAP Devices
• Defective Tires
• JUUL Vaping Devices
• Mesothelioma
• NEC Baby Formula
• On-the-Job-Injuries
• Paraquat
• Talcum Powder
• Truck Accidents

RESOURCES TO HELP YOUR LAW PRACTICE

As we have repeatedly said, it’s important to know that Beasley Allen is a firm that only handles litigation for persons, companies and governmental entities that have been injured or damaged in some manner. All of us at the firm are humbled and pleased that our law firm has consistently been recognized as one of the country’s leading law firms representing solely claimants involved in complex civil litigation. We consider that to be an honor and a privilege. Beasley Allen has truly been blessed, and we understand the importance of sharing resources and teaming with peers in our profession. The firm is committed to investing in resources that will help our fellow lawyers in their work. For those looking to work with Beasley Allen lawyers or simply seek information that will help their law firm with a case, the following are among our most popular resources.

Co-Counsel E-Newsletter

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

Aviation Litigation & Accident Investigation

Beasley Allen lawyer Mike Andrews discusses the complexities of aviation crash investigation and litigation. The veteran litigator offers an overview to the practitioner of the more glaring and 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.

Webinars

Beasley Allen hosts a variety of webinars. These webinars feature lawyers in the firm and cover topics related to Beasley Allen cases. Continuing legal education (CLE) credits for Alabama or Georgia are often available for live presentations. To register for upcoming events or to access past webinars on-demand, you can visit the Events and Webinar page of the Beasley Allen website at https://www.beasleyallen.com/events/.

The Jere Beasley Report

We also consider The Jere Beasley Report to be a service to lawyers and the general public. We provide the Report at no cost monthly, in print 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 litigation sections of our firm by phone toll-free at 800-898-2034 to discuss any cases of interest or to get more information about the resources available to help lawyers in their law practice. To obtain copies of any of our publications, visit our website at BeasleyAllen.com/Publications.

PRACTICE TIPS

A New Look At Case Activity At Beasley Allen Is Your Client In Bankruptcy? “Trust But Verify”

Lawyers in our firm have learned that bankruptcy can affect cases handled for clients. The effect can be troubling if the lawyer handling the case is unfamiliar with the bankruptcy courts. Dee has some tips that can be helpful.

In the wake of the COVID-19 pandemic, many less fortunate consumers have had difficulty recovering financially from the “shutdown” and had to resort to the Bankruptcy Courts for protection from mounting bills and little or no income. Even with the assistance of the Cares Act and other Federal Assistance programs during the corona virus crisis, the post-pandemic inflation was just too much for many Americans to “bounce back.” Many of these consumers may have been your clients. If so, here’s a tip…. Make certain you have checked PACER to see if your client’s name appears as an active case in the Bankruptcy Court. If not, and your client filed for bankruptcy without your knowledge, and you disbursed settlement funds to them, you may lose your cost, fee and the client’s entire settlement proceeds. You will have inadvertently worked for free for the Bankruptcy Court.

When a client has filed for bankruptcy and is awarded a settlement in unrelated private litigation, the settlement funds, which were the proceeds of the personal civil claim, are property of the bankruptcy estate. See 11 U.S.C. § 541(a)(1) and 11 U.S.C. § 1306(a)(1) (Property of the estate includes “. . . all legal or equitable interests of the debtor in property as of the commencement of the case. . .” and “all property . . . the debtor acquires after the commencement of the case, but before the case is closed, dismissed, or converted. . . .”); see also In re Graham, 258 B.R. 286, 288 (Bankr. M.D. Fla. 2001) (“Proceeds received post-petition by a debtor on account of a prepetition or post-petition personal injury claim are property of the estate according to § 541 and § 1306.”).

Under the terms of a given debtor’s “confirmed plan,” most all plans in bankruptcy contain a provision that states that any funds received from a civil lawsuit, less debtor’s exemption, are to be paid over to the Bankruptcy Trustee for whatever Chapter the debtor has petitioned, for the benefit of unsecured creditors. Instead, if following a civil settlement of a claim, proceeds in any amount are disbursed by the attorney in the civil suit to the debtor without the trustee’s knowledge, that disbursement of funds to the debtor results in a legal conversion of estate property.  See 11 U.S.C. § 1306(a). All the funds, including the fees, cost and principal amount of the settlement.

However, there is a simple way to cure this problem. Before disbursing any settlement funds, ask your client if they have filed for bankruptcy. Trust your client’s answer, but despite their answer, verify by checking PACER for your client’s name in the Bankruptcy Court records. If they have filed for bankruptcy, hold all funds, contact the Bankruptcy Trustee and work out a plan for the client funds, your fee and cost.

Dealing with bankruptcy issues in civil litigation can be a real problem. We hope these tips from Dee will help improve your law practice and protect clients.

RECALLS UPDATE

A large number of safety-related recalls were issued during April. Significant recalls are available on our website, BeasleyAllen.com/Recalls/. We try to put the latest and most important product recalls on our site throughout the month.

FIRM ACTIVITIES

Employee Spotlights

Dianne Brown

Dianne Brown works in the Firm’s Mass Torts Section as a Medical Advisor. She is responsible for researching various drugs, products, and their potential for injury. Dianne is also responsible for consulting, collecting, organizing, and reviewing medical records and relevant healthcare or other legal documents. Dianne has been with the firm for 19 years and has done an outstanding job in her very important role. We are fortunate to have Dianne with us!

Dianne is a graduate of Troy University, where she received a degree in Nursing. She and Randall have been married for 41 years. Randall is a retired Lieutenant with the Montgomery County Sheriff’s Office and now works at the Alabama State House, providing security for the Senate.   Dianne and Randall have three children, and they also have a three-year-old Yorkie named “Charlie.”

Their son, Corporal Jeffrey Brown, an Alabama State Trooper in Baldwin County, is married to Lyndsey, a kindergarten teacher at Robertsdale Elementary. The Brown’s daughter, Amanda, has a master’s degree in Accounting and is married to Jonas, a Director of Enterprise Analytics and Telecommunications at Baptist. Their youngest son, Nathaniel, is an Alabama State Trooper in Madison County. Diane says that Nathaniel is finding his way around the “Rocket City” with his wife, Hannah, a busy engineer for the City of Huntsville.

Diane says she enjoys spending time with her family and watching all six of their grandchildren grow up. She also enjoys getting together with friends and church family at Taylor Road Baptist Church, where she regularly participates in church activities. Diane loves to play the piano, sing, and have her quiet time reading God’s word.

Diane says that Beasley Allen is a special workplace, adding, “I appreciate Jere Beasley for his recognition for the importance of placing priorities in life – God first following by family and work.” Diane also says that she considers it a privilege to work with such efficient legal professionals and provide assistance in the medical review process to confidently honor the firm’s motto of “helping those who need it most.”

Diane’s role in the firm is extremely important, and she does excellent work.

Gwyn Harris

Gwyn Harris, a Paralegal in the firm’s Mass Torts Section, works directly with Ted Meadows in the Talcum Powder litigation. Gwyn focuses on new unfiled cases to determine if specific criteria are met for filing and then prepares drafts and court filings based on the determination. Additionally, she sends certain cases to probate coordination companies for estates to be opened and works closely with the estate company until the court appoints a representative. Gwyn also reviews documents in the filed case to determine what all needs to be produced. Gwyn has been with the firm for 21 years!

Gwyn’s husband, Keith, works at the Montgomery Water Works. Gwyn says that Keith loves to hunt, fish, and do anything outdoors. Their daughter, Adalyn Ruth, is an 8^th grader at Prattville Junior High. Gwyn says Adalyn Ruth loves cheerleading, tumbling, reading, and spending time with friends from school and with her church youth group. Adalyn Ruth also loves hunting and fishing with her Dad. Gwyn and her family have two dogs, Daisy and Abby, who love to snuggle! Gwyn’s hobbies include spending time with her family, friends, and their dogs. She enjoys reading, especially mysteries, working in the yard with her flowers, and attending church at Hunter Hills Church of Christ.

When asked what her favorite thing about working at Beasley Allen was, Gwyn replied, “the people I work with.” Gwyn does an exceptional job in her role as a Paralegal in the firm, and we are fortunate to have her with us!

James Lampkin

James Lampkin, a lawyer in the Mass Torts Section, joined the firm in April 2011. James works on behalf of patients negatively affected by medical devices and medication and represents clients who have suffered injury due to using the JUUL vaping device. When JUUL entered the market, it downplayed the risks of injury caused by the company’s vaping device and actively marketed it to minors. James is also working with other firm lawyers representing numerous clients who have developed certain types of cancers due to using the drug Zantac. He is working with the Zantac multidistrict litigation (MDL) leadership in representing these clients.

When he was in the first grade, James’ paternal grandmother began raising him, and he thanked her for where he is today in life and his profession. He explained that his grandmother would work part-time at the lunch counter at the Montgomery County Courthouse on occasion, and James recalls her talking about the lawyers that would come in for lunch. He says:

Her stories got me interested in pursuing a career as an attorney. Her support, encouragement and discipline were all key factors in my educational development that led to me being the first in our family to obtain a professional degree.

James has worked with firm lawyers and staff representing clients in Hormone Replacement Therapy cases nationwide. He also handled transvaginal mesh litigation for women suffering from complications caused by the mesh.

James has also worked on behalf of patients who have taken Risperdal, a drug used to treat mental health conditions and sometimes prescribed by doctors for off-label uses such as attention deficit hyperactivity disorder (ADHD), attention deficit disorder (ADD) and other behavior problems.

James’ favorite part of practicing law is representing a client who needs help and assistance. He says:

It is my belief that an attorney may have to wear more than just the single hat of the attorney and has to be willing to take time to listen and counsel and, at times, console a client who is a stranger to the legal field.

James is licensed to practice in the states of Alabama, Georgia, Florida and Mississippi, as well as before all federal courts in Alabama, Mississippi, and Georgia. In addition, he is licensed to practice in the Northern District of Florida, the U.S. Supreme Court, and the Fifth and Eleventh Circuit Courts of Appeals. He is a member of the American Bar Association, Mobile County Bar Association and Baldwin County Bar Association. James has also served as an instructor in deposition and trial training programs for younger lawyers.

The Montgomery, Alabama, native graduated from Sidney Lanier High School in 1979. He then attended the University of Alabama and East Tennessee State University, receiving his bachelor’s degree (political science) in 1985. James attended law school at Samford University Cumberland School of Law in Birmingham, Alabama, graduating with honors in 1989. During law school, James served on the Cumberland Law Review. He was admitted to the Georgia and Alabama State Bars in 1989 and Florida and Mississippi State Bars in 1997.

Following law school, James moved to the Mobile and Baldwin County area. He began his legal career as a law clerk for The Honorable T. Virgil Pittman, U.S. District Judge for the Southern District of Alabama. In 1991, James entered private practice with a civil defense firm in Mobile. He continued his practice as a civil defense lawyer from 1991 until 2011. While in private practice, James was a speaker at numerous legal seminars, including industry seminars, and authored numerous legal articles involving various issues related to his practice and service to clients.

Reflecting on his time with the firm, James noted how Beasley Allen lawyers and staff care for our clients, saying, “We are there to serve our clients to the best of our abilities.” He also shared his appreciation for the firm’s culture of valuing and prioritizing family. He says, “As an attorney at Beasley Allen, I also have time for my family.”

James is a talented lawyer who puts his clients’ interests first and foremost. He works hard to see they receive justice. We are fortunate to have James with us.

Stephanie Monplaisir

Stephanie Monplaisir works in the firm’s Personal Injury & Products Liability Section, handling complex litigation and appellate proceedings. She has helped secure more than $200 million in verdicts and settlements. Stephanie has successfully argued and tried cases in state and federal courts and been a trial team member in several notable cases.

Most recently, Stephanie was part of the team that secured a $151 million verdict for Travaris “Tre” Smith, who was left paralyzed after the 1998 Ford Explorer he was riding in crashed and rolled over. The jury agreed with Smith in finding that Ford failed to meet its own safety guidelines for the Explorer’s rollover resistance requirement and attempted to cover up the vehicle’s defective design. Stephanie helped secure an $18.79 million verdict in Colin Lacy v. Empire Truck Sales. Our client was paralyzed due to a mechanic shop’s grossly negligent maintenance of his 18-wheeler.

Stephanie has said that she didn’t choose the law; it chose her. While she has always desired to protect and advocate for others, Stephanie got the nudge to go to law school while serving as a crisis counselor for the Federal Emergency Management Agency (FEMA), where she worked after graduating from college. Stephanie was working with people whose lives were devastated by tornadoes in Enterprise, Alabama, and saw so much injustice that could not be remedied with supplies or counseling. The injustice was systemic and cyclical in impoverished communities. She saw the need to change the system but felt powerless. That is when she decided to become a lawyer.

Stephanie is admitted to practice in all Alabama state and federal courts and the United States Supreme Court. She is a member of the Montgomery County Bar Association, the Attorneys Information Exchange Group and the Alabama Association for Justice. She has previously served on the Alabama State Bar’s Lawyer University Task Force and Health and Wellness Committee. Stephanie has been selected to the Midsouth Super Lawyers Rising Stars list since 2018, which recognizes the top up-and-coming attorneys – those who are 40 years old or younger or who have been practicing 10 years or less. A legal scholar on personal jurisdiction, Stephanie has also published papers and presented CLEs on the topic across the country.

Stephanie says that she loves being a lawyer because it allows her to use her gifts to help others. She says:

I have always loved learning new things, solving puzzles, and writing. My job is to learn complicated areas of the law, use my creativity to find relevant discovery, and then figure out how it all fits together so I can present our best arguments to courts. The best feeling in the world is knowing that your hard work has changed your client’s life or made an entire industry safer.

She was selected as the 2018 Beasley Allen Lawyer of the Year for the Products Liability Section. In 2019, Stephanie was selected as Lawyer of the Year for the River Region by Destiny Girls Academy, a local mentoring organization. Stephanie received the award during an event held to honor women of various professions and the arts throughout the River Region in Alabama. She was also recognized as a Best Lawyers: Ones to Watch for her work in both Personal Injury Litigation – Plaintiffs category and Product Liability Litigation – Plaintiffs category for 2021 and 2022.

Stephanie graduated summa cum laude from Troy University in 2007 with a double major in political science and psychology. She graduated summa cum laude from Faulkner University’s Thomas Goode Jones School of Law in May 2011. While in law school, she received ten Best Paper Awards and the Best Advocate Award in Trial Advocacy. She served as a senior editor on the Faulkner Law Review and as a senior member of the Board of Advocates.

Mentoring law students and young lawyers is a priority in the firm, and Stephanie believes this is something that sets Beasley Allen apart as a law firm. As the first lawyer in her family, Stephanie explained that she had no idea what to expect in practice and was thankful for her mentors’ guidance. She can relate to young lawyers or soon-to-be lawyers and has been determined to pass along the same kind of guidance and compassion she received from her mentors. She says:

As the Director of Beasley Allen’s Summer Law Clerk Program, I met law students from all over the state and worked closely with them while they were here. I continue to follow up with them even after they have left Beasley Allen. Too many young lawyers – especially women – leave the profession for lack of mentorship. Our program provides that mentorship even beyond their time at Beasley Allen.

Stephanie and her husband, David, live in Montgomery, where David serves as a Captain with the Montgomery Fire Department. They are parents to Mary Hayden (6) and Julian (3).  They are members of Frazer Methodist Church.

Preston Moore

Preston Moore is a lawyer in the firm’s Personal Injury and Products Liability Section, and he handles cases involving serious injuries and defective products. Preston is working in the firm’s Atlanta office.

Before joining the firm, Preston worked for another law firm in Atlanta, where his practice focused on complex litigation, white collar investigations, and commercial disputes. His experience includes antitrust class action defense for a construction supply manufacturer, public corruption investigations, and contract disputes surrounding commercial transactions. Preston also represented a credit reporting agency in Fair Credit Reporting Act (FCRA) matters.

The motivating factor that keeps Preston striving to be the best lawyer he can be is different from the reason he first desired to become a lawyer. He explains:

I first became an attorney because trial law made me feel important. I was not athletic as a kid, and I had no idea how to relate to others my own age. But when I joined the high school mock trial team and stood in the well of the courtroom, I found something that I was exceptionally good at; I relished the glory of finally feeling like I had shown the world something I could do well enough to merit my acceptance.

Preston continued by explaining how all that changed.

Over ten years after that first mock trial as a high school freshman, just before the start of my final year of law school, I met Jesus Christ. For the first time in 25 years, my heart caught the glimpse that someone as great as Him could fully know me and fully love me. Today, I practice law for a completely different reason. I want His smile, and I experience it most fully when I get the chance to pour out the gifts, He has given me unto the service of others.

Preston is also committed to and deeply involved with pro bono work. He has aided multiple survivors of sex trafficking in bids for post-conviction relief under Georgia’s Survivors First Act. Preston represented a wrongfully exiled U.S. green card holder in an action against several federal agencies. He has also advised an Atlanta nonprofit on internal governance matters.

Above everything else, Preston wants a heart conformed to the image and likeness of his Lord and Savior, Jesus Christ. Preston came to Christ later in his life and honors the role that his wife, father, mother, and grandparents play in daily supporting him, faithfully following Jesus.

Preston is married to Mary Lauren, and they have two boys, Brooks (6) and Tripp (5 months). At home, Preston says his main goal is to be a Christian husband to his beloved wife. The couple met in high school and married shortly after Preston graduated from law school. He says his second goal is to raise his children to be followers of Christ. Preston is an active member of Northstar Church in Kennesaw, Georgia.

Although he doesn’t get to play as much now, Preston loves golf. He is also a member of the alumni board for Christian Union, an organization spreading Christ at top universities.

Preston is a member of the Georgia State Bar. He is also a volunteer coach for the mock trial team at his alma mater, high school, Mount Paran Christian School.

Preston earned his Juris Doctorate from Harvard Law School, where he had a distinguished mock trial career. He was a captain and member of the Harvard Law School Mock Trial Association. Preston was selected as one of six students to represent Harvard Law at the National Trial Competition on two separate occasions. In 2018, his trial team won the St. Mary’s Classic, a national invitational tournament, where Preston received the “Best Advocate Award” in the final round.

As an undergraduate at Georgetown University, Preston captained the University Mock Trial Team and won several trial advocacy awards. Preston graduated magna cum laude with an A.B. in Philosophy.

Beasley Allen lawyers and staff are one of the main reasons Preston says he joined the firm. Preston says, “Value-oriented leadership is critical, as is collegiality and a team atmosphere. I find that Beasley Allen offers each of these. I also appreciate that at Beasley Allen, we can actually stand in the well of the courtroom and take to task large corporations and bad actors on behalf of our clients; in many practice areas, ‘trial’ work is a misnomer. I also am energized by the firm’s growth potential in the Atlanta legal market.”

We are quite fortunate to have Preston join the work.

Ellen Royal

Ellen Royal is a Legal Secretary in the firm’s Mass Torts Section. Her responsibilities include working on referring attorney fee split letters for new cases, reconciling VISA and other reports, making travel arrangements for assigned attorneys, and mailing case-related checks. She also assists with other projects as needed. Ellen has been with Beasley Allen for 17 years. Her role is very important to the firm, and she does an outstanding job.

Ellen says she was blessed with two wonderful sons. Her oldest son, Thomas, graduated high school from Stanhope Elmore in 2006. Shortly after graduation, Thomas joined the United States Army and was an MP with the 101^st Airborne Division, serving two tours in Iraq. Thomas now lives in Deatsville and works for the Department of Corrections. Her youngest son, Matthew, passed away in 2007 and is now in Heaven with his Lord and Savior.

Ellen says that she enjoys Bible study, reading, visiting antique auctions, estate sales, knitting, and trips to the beach. Ellen says, “my favorite things about working at Beasley Allen are the opportunities to help clients who need someone on their side, the chance to contribute to outreach ministries, and the many friendships that I have forged with employees over the years.”

Ellen is a hard-working employee dedicated to the clients with whom she works. Ellen does very good work in her job. We are blessed to have Ellen with us!

SPECIAL RECOGNITIONS

Firm Lawyers Help Plan And Host Minority Pre-Law Conferences

The Alabama State Bar Young Lawyers Section has organized and sponsored the Minority Pre-Law Conference for several years. The conference is a series of events held in multiple locations statewide, established to expose high school students to our legal system to promote greater diversity in the legal profession. Several firm lawyers were involved in two of those events, Mobile and Montgomery, last month.

Wyatt Montgomery, a lawyer in the firm’s Mobile office and a member of the Young Lawyers Section’s sub-committee that organized the Mobile event, worked with our own LaBarron Boone to serve as the event’s keynote speaker. Gavin King, a lawyer in our Toxic Torts Section, planned and co-hosted the Montgomery event with Miland Simpler, a lawyer with Ball Ball Matthews & Novak.

Local high school students were invited to attend the Mobile conference at the Mobile Federal Courthouse and the Battle House Hotel. Students from LeFlore (LaBarron’s alma mater), B.C. Rain, Blount, Murphy, Vigor and Williamson were invited to attend, and approximately 100 students participated in the day’s event. The students were welcomed by the Chief Judge of the Southern District of Alabama, Judge Jeffrey Beaverstock. Lawyers from various legal backgrounds addressed the students, including a municipal court judge, an attorney from a large law firm with a focus on working with government agencies and the director of the pre-law program at the University of South Alabama. Two U.S. Attorneys for the Southern District of Alabama walked the students through a mock trial, and the students received a tour of the federal courthouse. They enjoyed lunch with multiple attorneys from around the area, including our Mobile office managing attorney, Frank Woodson, and Mobile office lawyers Wyatt Montgomery, Jessi Haynes and Evan Allen. LaBarron’s keynote address rounded off the day-long event.

LaBarron, a Mobile native, says he was happy to share his passion for practicing law with the young students from his hometown. He encouraged them, saying, “If you can first conceive it and believe, you can achieve it.”

The Montgomery event was virtual, and dozens of students from schools in the River Region, including LAMP, Booker T. Washington, Lee, and Lanier High Schools, participated. In addition to Kendall, other panelists included Montgomery Probate Judge J.C. Love and Federal Magistrate Judge John England III. Students also enjoyed the presentation of a mock trial by law students at Faulkner University Thomas Goode Jones Law School in Montgomery.

Gavin had this to say about the Montgomery event:

Our panel included some of our communities’ finest attorneys. Each of them, as minorities, was able to speak directly to some of the experiences of many of our attendees. Every panelist offered their aid to any students who may aspire to be lawyers. I am proud of the Executive Committee’s work on this conference, and I look forward to the good fruit that will be produced as a result of it.

FAVORITE BIBLE VERSES

This month lawyers and staff who are featured in this issue have furnished their favorite Bible verses.

Dianne Brown

Whatever you do, work heartily, as for the Lord and not for men, knowing that from the Lord you will receive the inheritance as your reward. You are serving the Lord Christ. 

Colossians 3: 23-24

Dianne says:

I believe this is God’s job description for each of us. He expects us to do the work to the best of our ability with the talents that He has provided each of us. By doing so, we as believers, are guaranteed our eternal compensation in heaven for serving the Lord Christ.

Dianne says that Philippians 4:8 is extra special to her for more reasons than one. She had this to say:

This was my mother’s favorite life verse that I remember her quoting many times. I adopted this verse myself particularly over the past few years since this world that we live in seems to be all turned upside down. This verse helps me to keep my mind and heart focused on the good things of God. We should look on the bright side and bring hope in Jesus to the lost world and as Christians be a beacon of light and an encourager for Christ.

Finally, brethren, whatever things are true, whatever things are noble, whatever things are just, whatever things are pure, whatever things are lovely, whatever things are of good report, if there is any virtue and if there is anything praiseworthy—meditate on these things. 

Philippians 4:8

Dianne says her most favorite verse is Psalm 91:4. He shall cover thee with his feathers, and under his wings shalt thou trust: his truth (shall be thy) shield and buckler.

She says that she leans on this verse greatly, “especially during troubling times with insecure days. God has many wonderful promises, and we can draw comfort by knowing God provides protection to His children by His protective shadow over us,  just as a mother hen protects her baby birds by hiding them under her wings. We as believers have the assurance of God’s protection.”

Ellen Royal

Ellen Royal furnished the following. Ellen says that she believes with her whole heart the truth of Job 19:23-27.

Oh that my words were written! Oh that they were inscribed in a book! Oh that with an iron pen and lead they were engraved in the rock forever! For I know that my Redeemer lives, and at the last he will stand upon the earth. And after my skin has been thus destroyed, yet in my flesh I shall see God, whom I shall see for myself,  and my eyes shall behold, and not another. My heart faints within me!

Ellen is also comforted by Psalm 103 and it is the scripture she asked to be read at her son’s funeral.

Bless the Lord, O my soul,  and all that is within me, bless his holy name! Bless the Lord, O my soul, and forget not all his benefits, who forgives all your iniquity, who heals all your diseases, who redeems your life from the pit, who crowns you with steadfast love and mercy, who satisfies you with good so that your youth is renewed like the eagles. The Lord works righteousness and justice for all who are oppressed. He made known his ways to Moses, his acts to the people of Israel. The Lord is merciful and gracious, slow to anger and abounding in steadfast love. He will not always chide, nor will he keep his anger forever. He does not deal with us according to our sins, nor repay us according to our iniquities. For as high as the heavens are above the earth, so great is his steadfast love toward those who fear him; as far as the east is from the west, so far does he remove our transgressions from us. As a father shows compassion to his children, so the Lord shows compassion to those who fear him. For he knows our frame; he remembers that we are dust. As for man, his days are like grass; he flourishes like a flower of the field; for the wind passes over it, and it is gone, and its place knows it no more. But the steadfast love of the Lord is from everlasting to everlasting on those who fear him, and his righteousness to children’s children, to those who keep his covenant and remember to do his commandments. The Lord has established his throne in the heavens, and his kingdom rules over all. Bless the Lord, O you his angels, you mighty ones who do his word, obeying the voice of his word! Bless the Lord, all his hosts, his ministers, who do his will! Bless the Lord, all his works, in all places of his dominion. Bless the Lord, O my soul!

Ellen also says that Zephaniah 3:17 is also comforting because it reminds her that God is with her and is singing over her.

The Lord your God is in your midst, a mighty one who will save; he will rejoice over you with gladness; he will quiet you by his love; he will exult over you with loud singing.

James Lampkin

James Lampkin shared the following verses.

Therefore, there is now no condemnation for those who are in Christ Jesus, because through Christ Jesus the law of the Spirit who gives life has set you free from the law of sin and death. 

Romans 8:1-2

Do not store up for yourselves treasures on earth, where moths and vermin destroy, and where thieves break in and steal. But store up for yourselves treasures in heaven, where moths and vermin do not destroy, and where thieves do not break in and steal. For where your treasure is, there your heart will be also. 

Matthew 6:19-21

Then the King will say to those on his right, ‘Come, you who are blessed by my Father; take your inheritance, the kingdom prepared for you since the creation of the world. For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.’ Then the righteous will answer him, ‘Lord, when did we see you hungry and feed you, or thirsty and give you something to drink? When did we see you a stranger and invite you in, or needing clothes and clothe you? When did we see you sick or in prison and go to visit you?’ The King will reply, ‘Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.’ 

Matthew 25:34-40

Preston Moore

Preston Moore, who is in the firm’s Atlanta office, shares verses from the book of Ephesians. He says:

Paul wrote this letter to the Church in Ephesus. His audience was Christian. Still, from a jail cell, Paul is asking God to give the Ephesian Church a revelation of how much He loves them. Paul knew the love of Christ at a bizarrely deep place. I pray that I could know it, too.

. . . and to know the love of Christ that surpasses knowledge, that you may be filled with all the fullness of God. 

Ephesians 3:19

Preston says this explains that “it is not tough to wrap my heart around the idea that God has a will and that I have failed to keep it. But despite that, God’s overarching will concerning my life (not a begrudging decision or a half-hearted “why not”) was to choose me. That is nearly incomprehensible.” He says Ephesians 1:4-5 demonstrates this.

 Even as He chose us in Him before the foundation of the world, that we should be holy and blameless before him. In love, He predestined us for adoption to Himself as sons through Jesus Christ, according to the purpose of His will . . . 

Ephesians 1:4-5

Preston also submitted Job 42:5-6 saying, “I have no hope of explaining what this moment is like. I would that the whole world experience it.”

 [Job replied to the Lord] . . . “My ears had heard of You, but now my eyes have seen You. I despise myself, and I repent in dust and ashes. 

Job 42: 5-6

CLOSING OBSERVATIONS

Wealthy Companies’ Bankruptcy Abuse Undermine Victims’ Rights

It is a growing trend among some of the wealthiest, bad corporate actors to abuse bankruptcy courts to escape liability and accountability our civil justice system affords their victims. Johnson & Johnson (J&J), the Koch brothers, members of the Sackler Family, the Boys Scouts and even the U.S. Olympic & Paralympic Committee were recently included in a feature story by NPR describing the details of complex bankruptcy maneuvers used to avoid culpability.

Critics, advocates for victims, and lawmakers lament the ills of the strategies. They explain that wealthy companies’ abuse of bankruptcy law and the courts that oversee the law have undermined victims’ rights to trial by jury and have “quietly reshaped some of the most important legal cases of recent years,” according to NPR. While the companies that are rich enough to employ these bankruptcy maneuvers effectively continue operating, the victims suffering from the companies’ wrongdoing must frequently surrender the right to be heard in court and accept a pittance of compensation.

University of Georgia professor of bankruptcy law Lindsey Simon authored a paper raising alarm about bankruptcy abuse by wealthy companies. She calls these companies “’bankruptcy grifters’” that act as parasites.” Simon explains that these companies “get many of the benefits of actual bankruptcy while experiencing ‘only a fraction of the associated burdens.’”

These bankruptcy grifters have different approaches. One approach uses a Texas corporate law to execute a divisive merger to create a new shell company in Texas. J&J, based in New Jersey and valued at more than $400 billion, used this approach, known colloquially as the “Texas Two-Step,” in October 2021, as this Report previously discussed.

J&J created a new shell company, LTL Management LLC, bankrupted the newly formed company by dumping all its talcum powder lawsuits and a limited pool of money to pay off its victims into the new subsidiary. After filing for bankruptcy, J&J moved to stay all talcum powder litigation until it finalized bankruptcy proceedings. When J&J pulled the trigger on this controversial defense tactic, it abruptly blocked more than 38,000 ovarian and mesothelioma claims, including Hanna Witt’s claim. Hanna lost her battle with mesothelioma earlier this year at 27 but not before sharing her story with NPR.

Hanna had been an athletic, healthy 22-year-old woman when she was diagnosed with the aggressive form of cancer after using J&J’s talc-containing products for years. She expressed outrage and frustration, saying, “What I see is who can play the game best. Big corporations trying to work the system in a way that they don’t have to take full responsibility is nothing new.”

The Koch brothers used a similar maneuver with their paper products company Georgia-Pacific. They created Bestwall, dumped Georgia-Pacific’s asbestos-related lawsuits into Bestwall and immediately filed for bankruptcy. According to Reuters, the Kochs “proposed giving Bestwall $1 billion to settle all asbestos claims.” However, no payments have been made to victims with cancer claims, and the lawsuits remain stagnant five years later.

Another bankruptcy maneuver is “piggybacking” on legitimately bankrupt companies or organizations. The Sackler family, which owned Purdue Pharma, snagged a deal last year allowing them to pay roughly $6 billion to escape lawsuits and accountability over claims that its marketing of OxyContin helped fuel the U.S. opioid epidemic. While Purdue Pharma was drained of its assets and landed in bankruptcy, the $10 billion in profits from OxyContin sales pocketed by the Sacklers “remains untouched.” NPR explains that those harmed by the drug’s addiction side effects “will be forced to forfeit any right to sue the Sacklers, while often receiving only a few thousand dollars in compensation,” NPR explains.

As chair of the Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights, Senator Sheldon Whitehouse (D-Rhode Island) held a hearing earlier this year, noting the top concerns over J&J’s Chapter 11 Bankruptcy abuse by manipulating the Texas Two-Step. He concluded that this “undermines the integrity of other creditor/debtor relationships. Hiding assets in bankruptcy is a serious wrong. The Texas Two-Step uses a trick of corporate law to hide assets in plain view with courts’ connivance.”

During the hearing, Senator Dick Durbin (D-Illinois) made clear that “[t] here’s a justice system for rich people and powerful corporations—and there’s the system for everyone else. And many days, it seems that the gulf between those two systems of justice is getting wider and deeper.”

The U.S. Department of Justice has declared settlements resulting from these bankruptcy schemes unconstitutional. When forced to settle involuntarily despite their preference to have their cases heard in court, such plaintiffs’ due process rights are effectively denied.

Still, there are proponents of these machinations, including some bankruptcy judges. They argue that bankruptcy allows victims to be paid more quickly and that parties can reach a solution more efficiently. It is unclear when or how the legality of bankruptcy manipulation will be determined, but J&J’s bankruptcy is being observed as a test case. If allowed to move forward, other wealthy companies will note how to skirt accountability in the future by delaying or permanently blocking lawsuits of victims of their wrongdoing.

Sources: NPR, Reuters and Senator Sheldon Whitehouse

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.

Edmund Burke

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

Isaiah 10:1-2

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

Martha Washington (1732 – 1802)

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

Louis Brandeis, 1937
U.S. Supreme Court Justice

Injustice anywhere is a threat to justice everywhere.

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

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

Martin Luther King, Jr.

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

Vincent Lombardi

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

Mark Twain (1835-1910)

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

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

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

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

Theodore Roosevelt Sr., December 16, 1877

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

PARTING WORDS

When I started as a lawyer in Tuscaloosa in 1962, all lawyers and judges in the county were both male and white, with the exception of two white female lawyers. In fact, the makeup of the entire state bar at that time was the same. However, there were a few African American lawyers in the state, but their numbers were limited. Alabama state court juries in those days were made up entirely of white males.

Over the years, the numbers of female and minority lawyers in Alabama have grown by leaps and bounds. However, diversity in previously all-white law firms hasn’t grown at the same rate. The Beasley Allen Law Firm has been a leader in the area of diversity. I can say without reservation that God has blessed our firm as a result.