The Jere Beasley Report August 2022

CAPITOL OBSERVATIONS

Gibson Vance Installed As Alabama State Bar 2022-2023 President

We are pleased to announce the installation of our own Gibson Vance as President of the Alabama State Bar. He will serve his term until July 2023. Gibson follows in the footsteps of his law partners, Tom Methvin and Cole Portis, who previously served as Alabama State Bar Presidents.

Gibson served the Bar as President-Elect from July 2021 until his installation as President on June 25, 2022. When taking over as President, Gibson said:

The work we do matters, the message we deliver matters, and the contribution we can make this year matters. Together, we can truly make a difference in the lives of our members.

As President, Gibson is launching an initiative called “Drive for Five.” He plans to visit all 41 Alabama judicial circuits, where he will listen to State Bar members and advise them of a program offering five free hours of counseling per year. He says:

 Whether a lawyer is facing mental health issues, substance abuse or alcohol addiction, or experiencing suicidal thoughts, the attorney can call our toll-free number (800)-354-6154 and receive confidential help. No one at the Bar will ever know an attorney has used this service. As I visit every circuit in the state, I hope to drive home the message that to be a good lawyer, one must be a healthy lawyer.

Gibson joined Beasley Allen in 2000 and practices in the firm’s Personal Injury & Products Liability Section and the Consumer Fraud & Commercial Litigation Section. He has obtained multiple large verdicts for his clients and is involved in numerous professional associations, often serving in an officer’s role. Gibson has served as President of the American Association for Justice, Southern Trial Lawyers Association, Alabama Association for Justice, Montgomery County Bar Association, Montgomery Trial Lawyers Association and Alabama Civil Justice Foundation. In August 2019, Gibson was elected by the Troy University Board of Trustees to serve as its President Pro Temp.

Gibson is a skilled and talented trial lawyer who is totally dedicated to the task of making the rule of law work for all people. He is a tremendous asset to Beasley Allen, and we are blessed to have him with us.  I am confident that Gibson will do an outstanding job as President of the State Bar Association.

UPDATE ON THE CAMP LEJEUNE LITIGATION

An Update On The Camp Lejeune Litigation

Beasley Allen lawyers are investigating claims involving injuries from toxic water exposure at North Carolina Marine Corps Base Camp Lejeune.  Beginning in 1953, underground storage tanks holding fuel, solvents, and other chemicals began leaking into the groundwater at Camp Lejeune. In 1982, samples of the drinking water were taken and were found to be contaminated with volatile organic compounds (VOCS). The contaminants included trichloroethylene (TCE), tetrachloroethylene (PCE), benzene, 1,2-dichloroethylene (DCE) and vinyl chloride. The samples measured these chemicals hundreds of times over the allowed maximum limit.

Exposure to these VOCS has caused numerous diseases, illnesses, and death to members of our Marines and their families who lived or worked at Camp Lejeune between 1953-1987.  The injuries include multiple forms of cancer, many neurological diseases, fertility issues, miscarriages, and death.

After many decades, Congress has finally addressed this tragic water contamination issue in the Camp Lejeune Justice Act.  There are currently procedural hurdles that have pushed the Act back to the Senate, and President Biden, at our press time, has not yet signed the Act into law.  It should be noted that there is no cause of action in any court until the Act has been signed and becomes law.  

No one can predict whether there will be substantive changes to the Act until it’s actually signed into law. But at this time, the requirements for recovery under the Act include:

• Lived, worked, or resided at Camp Lejeune between August 1, 1953 – December 31, 1987, for at least 30 days, including in utero exposure; and
• Have an injury due to exposure.

The Act applies to military personnel and civilians equally. You can contact a lawyer on the team from our Toxic Torts Section handling these cases. The lawyers will help evaluate your Camp Lejeune toxic water exposure case. Members of the team are Rhon Jones, Julia Merritt, Trisha Green and Matt Pettit.

THE FACEBOOK LITIGATION

The Meta Litigation

Children and adolescents are growing up in an era when a significant portion of their lives is spent in online communities such as Facebook and Instagram, both owned by the technology company Meta Platforms, Inc. It is estimated that nine out of ten teens use social media platforms an average of three hours a day, and 45% of teenagers say they are online “almost constantly.”  Brain development is not complete in youths and adolescents, making them easy targets for addiction and susceptible to adverse physical and mental effects induced by prolonged exposure.

In October 2021, whistleblower and former Facebook data scientist Frances Haugen testified in front of Congress. She provided thousands of pages of documents detailing how Facebook uses algorithms to collect user data, targets users with advertising, and determines when and to what information users are exposed. Ms. Haugen further explained that, for years now, Facebook and Instagram have known that their products substantially increase the likelihood that minor users would sustain long-lasting adverse impacts on their physical and mental health.

Rather than warn the public of these risks or modify the platforms to remove the risks, Facebook and Instagram chose to conceal that information and devised and enacted a well-funded strategy to exploit psychological vulnerabilities. These vulnerabilities were well known to Facebook and Instagram but largely unknown by the public. The platforms used these vulnerabilities to unsympathetically trap users in a cycle of prolonged product usage and withdrawal to increase their profit margin, to the detriment of today’s children.                 

A team of Beasley Allen lawyers, led by Joseph VanZandt, is committed to combating this hazard. The lawyers represent individuals suing Meta Platforms, Inc., Instagram, LLC, and other subsidiaries for their creation and dissemination to the public of the Facebook and Instagram platforms, without adequate protections or warnings. These failures have caused hundreds, if not thousands, of adolescents to commit suicide, experience frequent periods of suicidal ideation, engage in various forms of self-harm, develop an eating disorder(s), and suffer from severe depression and anxiety, among other harms, which can cause or contribute to additional diseases.

Though this litigation is in the very early stages, our litigation team has filed twelve lawsuits in federal courts across the country, to date, with many more to come. Our team has engaged the services of top experts in psychology, psychiatry, addiction medicine, eating disorders, and computer science to halt what has become a public health crisis wrought upon today’s youth.      

If you have a potential claim or need more information about our Meta litigation, contact any of the lawyers on the Meta Litigation team.

PRODUCT LIABILITY UPDATE

Mobile Office Investigates Automotive Products Liability Wrongful Death Case

Wyatt Montgomery and Evan Allen in our firm’s Mobile, Alabama, office are investigating a potential automotive products liability case involving one death and one catastrophic injury.  The potential case arises from a car wreck on I-10 in Baldwin County, Alabama.  The wreck was caused when a young woman’s vehicle lost power while she was driving down the interstate.  As a result of the engine failure, the driver could not get her vehicle completely off the highway.  While she and her friend attempted to get the vehicle off the road, her vehicle was struck by passing traffic.  The collision resulted in catastrophic injuries to the young woman and the death of her friend who was there helping her.

The vehicle manufacturer and its parent corporation have had issues in recent years with engine failures across multiple product lines.  Wyatt and Evan are working with multiple experts to determine the cause of engine failure and whether the failure resulted from a design defect or a defect in the manufacturing process. 

A design defect is a flaw inherent in a product’s blueprint that causes an unreasonable risk of injury to the user.  Design defects can be attributable to a wide range of potential flaws, such as the materials used or a configuration that makes the product unsafe.  If a design is defective, it will typically affect an entire product line.  If there is a defect in the manufacturing process, the flaw may only affect some of the products.

Often design, manufacturing or warning defects are not readily apparent.  That is why it is essential for lawyers to thoroughly investigate each case that resulted in catastrophic injuries or death to ensure they are maximizing the recovery for their clients and their families.  It is this approach Beasley Allen lawyers take when handling product liability cases.

If you or someone you know has been catastrophically injured or killed due to a motor vehicle collision and a defective product claim is or could be involved, the products liability lawyers at Beasley Allen will be glad to discuss the case with you.

Georgia Judge Upholds $200 Million Verdict In Boat Case 

Rabun County, Georgia, Superior Court Judge B. Chan Caudell refused to dismiss a $200 million jury verdict against Malibu Boats LLC that was in favor of the Batchelder family. The lawsuit was filed after Ryan Batchelder, 7, was killed when he became tangled in the propeller of an open-bow ski boat driven by his great-uncle. The jury agreed with the family, determining that Malibu Boats knew of a safety hazard with the model boat the family was using and failed to warn the family and other consumers.

The court ruled that the verdict was “well-supported and squarely within constitutional bounds.” We wrote on the trial and the verdict in a prior issue.

Malibu Boats also argued that the evidence was lacking to hold it liable for the purported failings of a “defunct predecessor,” according to Law360. It claimed that it shouldn’t be held accountable for the defects of a boat that was manufactured in 2000 by Malibu Boats West. Judge Caudell determined that the jury’s finding that Malibu Boats was the new owner of the defunct company was good.

He explained that the evidence supported the jury’s findings that the defendant knew about the type of safety hazard that killed the child. The fatal incident occurred when the child’s great-uncle reversed the boat to keep it from submerging. Judge Caudell said.

Simply, Malibu knew the bow-swamping hazard would wash a child out of the bow and into the water beside the boat when the propeller was running, which could cause serious injury and death. What happened in this case is the exact tragedy that Malibu explicitly foresaw, but consciously chose not to warn users of previously purchased boats about. There is sufficient evidence to support the jury’s finding that Malibu caused Ryan’s death.

The jury returned the $200 million verdict in August 2021. It found that Malibu Boats was 25% at fault due to its negligent failure to warn consumers about the boat’s defect. Jurors awarded $80 million in compensatory damages, which were reduced to $20 million because the driver was found 75% at fault. The jury also awarded $120 million in punitive damages against the defendant.

The judge further ruled that the punitive damages awarded in the case did not violate the U.S. Constitution’s provision that such punitive damages are “excessive and arbitrary,” as the defendant argued. Judge Caudell said the punitive damages award was within the confines of Georgia’s law. He refused to grant a new trial because the defendant didn’t show any errors that would “warrant a new trial.”

The Batchelders are represented by Andrew S. Ashby, Maxwell K. Thelen and Seth A. Lowry of Ashby Thelen & Lowry, and Donald R. Fountain, Ben J. Whitman and Julie Littky-Rubin of Clark Fountain La Vista Prather & Littky-Rubin.

The case is Batchelder et al. v. Malibu Boats LLC et al., case number 2016-cv-0114, in the Superior Court of Rabun County, Georgia.

Source: Law360.com

Jury Found Tesla Negligent, Yet Faulted Driver For Crash

A Florida federal jury entered a verdict against Tesla in a fatal crash involving a 2014 Model S. The jury awarded the plaintiff James Riley $10.5 million despite assigning 99% of the fault to Riley and his son, Barrett Riley, who was one of the teens killed in the crash and was driving the vehicle.

Riley argued that Tesla was at fault for his son’s death because it installed defective batteries in the vehicle, and its employee who recently serviced the vehicle removed a speed limiter he had installed without telling his son. Riley claimed the speed limiter had been removed without parental authorization. After a week-and-a-half-long trial, the jury refused to fault Tesla completely. It determined that Barrett Riley was 90% at fault, and Riley was 9% at fault. It assigned no blame to Barrett Riley’s mother, Jenny Riley.

Riley had the speed limiter installed because of his son’s history of driving too fast. Two months prior to the crash that ended his life, Barrett Riley was ticketed for speeding at 112 mph. The speed limiter prevented the vehicle from going faster than 85 mph.

At the time of the fatal crash, Barrett Riley was driving with two passengers, including Edgar Monserratt Martinez, who was riding in the front seat, when Barrett Riley reached 116 mph around a curve limited to 25 mph. He lost control of the car, topping a concrete curb and hitting two walls on the west side of the road before crossing five lanes of traffic while rotating. The car hit another curb and light pole before coming to a rest. The vehicle’s batteries ignited, creating a fire that killed Barrett Riley and Martinez. The other passenger riding unbelted in the rear seat was ejected from the car during the incident but survived.

U.S. Magistrate Judge Alicia O. Valle oversaw the trial. During the trial, the plaintiff’s lawyers told jurors Barrett Riley would still be alive if the defendant’s employee had not removed the speed limiter when the employee serviced the care on May 8, 2018.

The plaintiff contended at trial:

The crash was entirely survivable. The airbags deployed and his son was uninjured by the impact. Barrett and his friend were killed by the hot and intense fire that started in the car’s battery cells.  The batteries were subject to thermal runaway, which could result in the kind of fire that engulfed the Model S. Tesla had patented a design to prevent thermal runaway before the Model S was manufactured but failed to implement the design into the Model S. Instead, Tesla instead waited until later years and models to install the safety feature.

Tesla took this position in its defense:

The speed limiter would have done little good in this crash. There was no evidence showing the 18-year-old driver would have been able to control the car and avoid a crash on the curve at 85 mph. There was no evidence that if the vehicle had been limited to 85 mph, a fire would have been prevented. The plaintiff failed to establish that the battery was defective.

The National Transportation Safety Board investigated the crash and blamed  Barrett Riley’s speeding. However, it said the post-crash fire that started in the car’s battery contributed to the severity of the injuries. Martinez, the other teen, killed in the crash, also has a pending lawsuit against Tesla in state court and is scheduled to go to trial in the fall.

James Riley is represented by Curtis B. Miner, Thomas Kroeger and Denise Georges of Colson Hicks Eidson PA, and Roy D. Wasson of Wasson & Associates Chtd.

The case is Riley v. Tesla Inc., case number 0:20-cv-60517, in the U.S. District Court for the Southern District of Florida.

Source: Law360.com

AN UPDATE ON MOTOR VEHICLE LITIGATION

VW Agrees To $80 Million Settlement In Porsche Emissions Cheat Suit

U.S. District Judge Charles R. Breyer is considering a class of consumers’ request for preliminary approval of an $80 million settlement agreement they reached with Volkswagen and Porsche. The agreement will end the consumers’ lawsuit alleging that the defendant automakers manipulated emissions and fuel-economy tests for nearly 500,000 gas-powered Porsche vehicles, Law360 reported. Plaintiffs said the defendants controlled the tests to make the vehicles seem more environmentally friendly.

If approved, the settlement will reimburse U.S. consumers who bought or leased the vehicles from model years 2005 to 2020. Consumers in the proposed class claim that Volkswagen AG, its luxury line Porsche AG and Porsche Cars North America Inc. used “creative engineering” approaches and now the plaintiffs’ vehicles don’t meet emissions and fuel-economy performance standards.

Under the settlement agreement, class members would be divided into three groups receiving cash payments: fuel economy, Sport+, and other class vehicles. Consumers in the fuel economy group, who claimed they were misled into overpaying for cars marketed as having high fuel-economy ratings, would get $250 to $1,109 per vehicle, depending on their vehicle’s revised fuel economy ratings and how long they had their vehicle. Consumers in the Sport+ group, who claimed they bought vehicles with a high-performance Sport+ mode that emitted pollutants beyond legal limits, would receive an automatic cash payment of $250.

Consumers in the “other class vehicles” group, whose cars might have been conceivably impacted by the testing practices at issue in the litigation, could receive up to $200 per vehicle, depending on how many claims are submitted. If an “extraordinary” claims rate causes the allocation to the “other class vehicles” group to fall below $150 per vehicle, then Volkswagen and Porsche have agreed to put another $5 million into the settlement fund, bringing the total pot to $85 million.

Beasley Allen, led by Dee Miles, was part of the Class Counsel appointed by the court, with our friend and colleague Elizabeth Cabraser serving as the leader of our Class Counsel. Elizabeth, regarding the settlement, stated:

The parties undertook serious, informed, and arm’s-length negotiations over more than a year’s time — including multiple in-person negotiation sessions in Germany and New York and multiple remote sessions via video and telephone. These detailed, technical, and evidence-based discussions culminated in the proposed settlement now before the court.

More than 30 named plaintiffs spearheading the consolidated class action, known as the Porsche Gasoline Litigation, alleged there was a two-pronged scheme. Volkswagen and Porsche allegedly modified the gears connecting the drive shaft and rear axle of their test vehicles, so the axles could spin at lower revolutions per minute than they did on vehicles that were actually sold to customers.

According to the consumers, lower RPMs generally yield lower emissions — and greater fuel efficiency — but decreased performance. And because of that modification, the test vehicles emitted fewer pollutants and were more fuel-efficient than the vehicles that consumers actually bought or leased.

The consumers also alleged that Porsche vehicles that came with a special high-performance driving mode known as “Sport Plus” emitted pollutants well beyond legal limits. They contend that Porsche issued a secretive stop-sale order in November 2020 directing its dealers not to sell, lease, rent or loan Porsche model year 2012-2018 vehicles with the “Sport Plus” mode as a standard feature or the “Sport Chrono” package, a bundle of optional features that includes the “Sport Plus” mode.

The stop-sale order applied to more than 20 models and variants over those seven model years, all of which Porsche admitted were being investigated for “emissions performance” issues, according to the amended consolidated complaint. Dee Miles, one of the class counsel for the plaintiffs, said: “We are pleased to close another chapter in this VW saga and provide a quality remedy to consumers.”

A Porsche spokesperson stated that the company has “been working to develop a solution and to ensure customers are appropriately compensated.” The Porsche spokesperson said further:

The proposed settlement agreement will resolve civil claims related to certain gasoline vehicles sold or leased in the United States related to potential minor fuel economy changes and potential minor emissions discrepancies when certain gasoline vehicles are driven in Sport+ Mode. We are committed to providing our customers with transparent fuel economy and emissions data, and the agreement ensures that customers are fairly reimbursed for any ratings changes and repairs.

The consumers detailed in the lawsuit:

• Their extensive investigation and tests showed that Volkswagen and Porsche’s scheme impacted approximately 500,000 gas-powered Boxsters, Cayennes, Caymans, 911s, Panameras and other luxury vehicle models.
• This was yet another emissions and fuel-economy cheating scheme within the Volkswagen corporate family following the 2015 scandal involving Volkswagen’s use of so-called defeat devices in turbocharged direct injection vehicles, as well as the “Audi CO2” gasoline cases accusing the company of overstating fuel economy ratings that downplayed actual carbon dioxide emissions.

In addition to lawyers from Beasley Allen, the consumer plaintiffs are represented by lawyers from Lieff Cabraser Heimann & Bernstein LLP, Bailey Glasser LLP, Baron & Budd PC, Bleichmar Fonti & Auld LLP, Boies Schiller & Flexner LLP, Branstetter Stranch & Jennings PLLC, Carella Byrne Cecchi Olstein Brody & Agnello PC, Casey Gerry Schenk Francavilla Blatt and Penfield LLP, Cotchett Pitre & McCarthy LLP, Levi & Korsinsky LLP, DiCello Levitt & Gutzler LLC, Hagens Berman Sobol Shapiro LLP, Hausfeld, Heygood Orr & Pearson, Keller Rohrback LLP, Motley Rice LLC, Robbins Geller Rudman and Dowd LLP and Roxanne Conlin & Associates PC.

The MDL is In re: Volkswagen “Clean Diesel” Marketing, Sales Practices and Products Liability Litigation, case number 3:15-md-02672, in the U.S. District Court for the Northern District of California.

Owners Claim Battery Shutdown Defect In Ford Mach-E Mustang

Amber Sulligan claims Ford knew or should have known about a defect in its Ford Mach-E Mustang and continued selling the vehicle for more than a year after receiving numerous warranty claims about the defect before issuing a recall. Ms. Sulligan filed a punitive class action lawsuit against the carmaker over the defect that causes the vehicles to completely or partially shut down. She said:

And while Ford now admits that the Mustang Mach-E has a serious safety defect that can cause in-operation power loss and shutdown, it has chosen not to design or issue a bona fide fix, but rather to degrade the charging and motive power of the Mustang Mach-E so that its defectively designed high-voltage battery main contactors do not overheat and fail.

Ford refuses to allow its dealers to deliver new Mach-E vehicles to customers, including those who have already paid for them. Ms. Sulligan, who seeks to represent a nationwide class of drivers that bought or leased 20221 or 2022 models of the vehicle and a Pennsylvania subclass, also alleges in her lawsuit that Ford won’t reimburse or provide backup transportation for current owners. Her complaint says:

The shutdown defect exposes putative class members to an unreasonable risk of accident, injury, death, or property damage if their vehicle completely or partially loses power while in operation. The shutdown defect also exposes passengers, other drivers on the road, and other bystanders to an unreasonable risk of accident, injury, death, and property damage.

Ms. Sulligan notes that Ford admitted the defect covers 48,924 vehicles, about half of the Mach-E vehicles the defendant has sold. Her lawsuit also takes issues with Ford’s proposed fix to the potential flaw in question.

According to the lawsuit, Ford explained to the government “that the ‘fix’ will reduce battery power to prevent damage to the contactor and it will reduce vehicle power to prevent further damage.” It further alleges:

Thus, instead of actually fixing the defective contactors, Ford instead downgrades the power of the battery and vehicle power, rendering performance something less than what Mach-E owners purchased and what Ford promoted for the shutdown defect vehicles.

Ms. Sulligan’s lawsuit alleges that the fix could force owners to lose money when they sell their vehicles because the fix suggests degrading their performance. Her attorney, Steve Berman of Hagens Berman Sobol Shapiro LLP, said in a statement:

At best, Ford’s touted “fix” is seemingly insufficient and ineffective, rendering these cars far from the Mustang name they were given, and at worst, it is only delaying the very likely potential that a sudden shut-off event caused by the Mustang Mach-E defect could cause a fatal crash.

The case is Sulligan v. Ford Motor Company, case number 2:22-cv-11668, in the U.S. District Court for the Eastern District of Michigan.

Source: Law360.com

BIG TRUCK ACCIDENT LITIGATION

Beasley Allen Involved In Major Trucking Case

Parker Miller, a lawyer in our Atlanta office, and Jonathan Hayes of Goldstein, Hayes & Lina, another Atlanta firm, are working together on a major trucking case filed in the Northern District of Alabama. The case arises from a horrific crash on Aug. 10, 2020, on Interstate 22 Eastbound toward Atlanta. That night, a large truck operated by Octavious Love and owned by trucking company 10 Roads Express, LLC struck a passenger truck driven by Sergio Kimble from behind. The collision caused Sergio’s truck to lose control and roll over. Sergio’s nephew Emilio Kimble, and Emilio’s mother, Valeria Kimble, were in the truck with Sergio. Valeria was ejected from the vehicle and died at the scene from her injuries.

It is hard to comprehend the brutality and fallout of a collision like this. Emilio saw his mother, and Sergio saw his sister killed before their very eyes. Sergio and Emilio were severely injured in the crash and will live with those injuries for the rest of their lives.  We believe the evidence will clearly show that 10 Roads Express knew they had an extremely dangerous driver operating this truck and that the company and its driver violated numerous safety standards under state and federal regulations that led to this collision. Moreover, based on how the event unfolded, there is no other plausible explanation but that the big truck caused this collision, as determined by the state highway patrol officers who investigated the crash. This collision was entirely preventable, and it is outrageous and sad that lives were so gravely affected as they were in the crash.

Lawyers in our firm’s Personal Injury & Products Liability Section continue to handle major truck wreck cases across the Southeast. We are passionate about getting the best possible results for our clients in these cases. Due to the size and magnitude of the accidents they cause, large trucks, their operators, and the companies that put them on the highways must follow clear safety standards under state and federal law. One dangerous driver, or a company that violates clear safety regulations, can literally wipe families out in a single errant crash. There is no denying that lawyers in trucking cases help their clients and protect society by ensuring wrongdoers pay a severe price for the harm they cause, including catastrophic injuries and deaths.

If you have any questions about this case, or trucking cases in general, feel free to contact Parker Miller. Parker has successfully handled a number of big truck cases during his career as a trial lawyer in our firm.

Why Investigations Are Crucial To Heavy Truck Crashes

Wheel separations on tractor-trailers can be fatal when on high-speed roadways. When a “runaway tire” becomes fatal or causes serious injury, an in-depth investigation begins to find who is at fault. Wyatt Montgomery, a lawyer in our Mobile office, recently began investigating a personal injury case involving a tractor-trailer crash. Our client was severely injured due to a tire detaching from the tractor-trailer, crossing over the highway’s center line, striking her vehicle, and causing the car to crash and rollover. Upon further investigation, it was discovered that the tractor-trailer was owned by a separate entity and was leased to the truck driver. Further, the lease agreement between the two parties stated that the owner of the tractor-trailer retained all responsibility for the unit’s maintenance, repair, and general upkeep. 

Federal regulations require motor carriers to systematically inspect, maintain, and repair all motor vehicles subject to their control. In 1991, the National Transportation Safety Board conducted an extensive investigation into wheel separations, finding that “…the leading causes of wheel separations from medium and heavy trucks are improper tightening of wheel fasteners and bearing failure; both are the result of inadequate maintenance.” In all fairness, it is important to note that since this investigation, policies and procedures have developed to help mitigate this problem. However, that does not make a motor carrier’s responsibility any less if an injury is caused by its failure to properly inspect, maintain, or repair any equipment in its control.

Immediate, in-depth investigations are essential to lawyers in determining who else might be involved in maintaining the subject tractor-trailer. Learning more about this information can help reveal how multiple individuals and entities can bear responsibility in commercial motor vehicle cases. The lawyers and investigators at Beasley Allen have extensive experience investigating these crashes. Chris Glover, managing attorney in our Atlanta office, has also handled many cases involving big, commercial trucks. He previously discussed not overlooking even the most seemingly minor detail, such as a law violation or piece of evidence. This oversight can significantly diminish the value of your claim. If you have a client who has been injured in a crash involving a tractor-trailer or other commercial motor vehicle and need help with your case, you can contact our team.

Source: National Transportation Safety Board

WORKPLACE LITIGATION

Firm Investigates Mining Company Employee’s Fatal On-the-Job Injury In North Georgia

Since the late 1700s, mining has been an established industry and job creator throughout the country. While mining creates job opportunities for many, it can be very dangerous and life-threatening work. Whether underground or surface mining, miners work in an environment that exposes them to hazards such as collapsing structures, falling debris, elevated heights, extended depths and heavy machinery.

Over the years, we have seen consistent reports of mining accidents and recovery efforts on the news. In response to these reports and the potential for serious danger, the mining industry remains heavily regulated.

The Occupational Safety and Health Administration (OSHA) is dedicated to workplaces that span a wide range. The mining industry is regulated explicitly by the Mine Safety and Health Administration (MSHA).

To reduce injuries, illnesses, and death, MSHA vigorously enforces education, training, and technical support to the mining industry. In June, a miner was killed after being pinned beneath the cab of a compactor he was operating when it overturned. MSHA stated that this was the thirteenth fatality this year. In response to the June accident, MSHA emphasized the importance of training minors to perform tasks safely and to recognize potential hazards.

Beasley Allen lawyers are in the early stages of investigating a death in July 2020  in a mine in North Georgia. Our firm and the Cooper Firm represent the family of the worker who lost his life on his third day of employment at this particular mine. Our victim was working underground using a truck outfitted with a boom lift and personnel basket and was accompanied by a more experienced miner to prepare the ceiling for blasting.

While the two men were maneuvering the basket to place the nitrate fuel into the drill holes in the ceiling, the machine malfunctioned and moved uncontrolled towards the ceiling. When the basket made contact with the ceiling, the hand railing of the basket crushed, pinning our victim between the front and rear railing. 

The more experienced worker was situated at the bottom of the basket and avoided the crushing forces. The hydraulic pump motor continued to operate, trapping them for approximately one hour. Unfortunately, by the time they were seen and lowered to the ground, our victim had died due to positional asphyxia.

Later that year, MSHA conducted and completed its investigation and issued its final report three months after the incident. MSHA found that the mine operator/employer allowed an untrained miner to work underground, failed to properly train miners after modifying equipment, and failed to ensure all safety devices were functioning on relevant machinery. While the mine operator/employer’s conduct contributed to the incident and death, Georgia’s Workers Compensation laws preclude a lawsuit against employers.

The circumstances of this incident also implicate the designer and manufacturer of the equipment the workers were using. Our investigation revealed that the truck was defective and unreasonably dangerous. Had the truck been properly designed and manufactured, the basket would not have crushed and killed the worker.

Kendall Dunson and Lance Cooper are handling this case for the worker’s family. They have obtained the services of experts with knowledge and experience with this product design.  Suit was filed against those defendants responsible for the inadequate design of this equipment. We will keep you up to date with the progress of this litigation as it moves forward. But if you have any questions, contact Kendall Dunson.

On-The-Job Injuries – Unguarded Heavy Equipment Hazards

The firm’s Personal Injury & Product Liability lawyers frequently represent workers injured on the job due to heavy equipment hazards. Improperly guarded industrial equipment increases a worker’s safety risk and is often the cause of catastrophic and sometimes fatal injuries.

The dangerous areas of industrial machines used to perform a task or job function are usually at or near the machine’s moving parts. These hazard zones are generally at the point of operation. This is where the machine cuts, bends, presses or moves materials. It can also involve a power take-off or power transmission device. If a worker may touch a moving part, it must be guarded.

Improperly guarded machines may be due to a defective design. Using the correct type of guard is just as important as using a guard. One firm client sustained a severe injury after his foot was entangled in one of the rollers in a car wash where he worked. His leg was forced into the railing system resulting in the traumatic amputation of his foot, and he barely survived the incident. Our lawyer, who handled the case, learned a few years later that another worker in a different state was injured because of the defectively designed equipment. In that case, the worker’s injury was fatal. The manufacturer failed to address the design defect, resulting in the worker’s preventable death.

Machines can also be improperly guarded because safety devices incorporated by the manufacturer on industrial equipment are removed. Beasley Allen lawyers have handled cases involving the removal of safety devices such as physical barrier guards from saws, planers, conveyors and rollers. Our lawyers have also discovered instances where light curtains, two-palm press buttons, pressure-sensing mats and other less obvious safety guards have been removed or altered. Safety devices are often removed to increase productivity, indicating that an employer places profits ahead of worker safety.

Still, in some cases, on-the-job injuries caused by an improperly guarded industrial machine could be due to a combination of factors. Therefore, it is crucial to thoroughly investigate and evaluate each on-the-job injury involving a machine on a case-by-case basis. Beasley Allen lawyers in the firm’s Personal Injury and Product Liability Section have extensive experience investigating and litigating these cases. They will be glad to speak with you if you have a claim for an on-the-job catastrophic injury or death related to the use of a machine.

AVIATION LITIGATION

Boeing 737 MAX Safety Concerns Resurface, Congress Prepares To Audit Plane’s Production

U.S. Transportation authorities have confirmed that Congress will audit Boeing’s production oversight following dozens of reports showing the 737 MAX continues to experience serious and potentially catastrophic problems.

Eighteen months have passed since Boeing’s 737 MAX 8 returned to the air. The planes had been grounded worldwide for nearly two years after the crashes of Lion Air Flight 610 and Ethiopian Airlines Flight 302 killed 346 people within five months. But in the first 12 months since resuming flight, dozens of reports of persistent problems, including six in-flight emergencies, continue to raise questions about the aircraft’s safety.

“Boeing’s 737 MAX is inherently dangerous. The manufacturer has introduced multiple electronic solutions to try and overcome the aircraft’s flawed design. Still, serious problems persist,” said Beasley Allen’s Mike Andrews, who leads much of the firm’s aviation litigation, including representing families of victims killed in the 737 MAX crashes. “Now there are grave concerns that production and quality control defects compound safety risks in the 737 MAX.”

There have been more than 60 problems reported since the Federal Aviation Administration (FAA) cleared the MAX to resume flight. In-flight equipment malfunctions were involved in 42 of the reported incidents. Specifically, 22 incidents involved flight control system failure, a problem that played a crucial role in the two deadly crashes.

At least two in-flight emergencies involved multiple system failures. One example involved an American Airlines flight that lost its autopilot and several other controls shortly after takeoff. The pilot of a United Airlines flight had to declare a mayday after the aircraft suddenly pointed downward and quickly accelerated. On more than 40 occasions, flight crews refused to fly the problematic aircraft until the problems were fixed.

The Congressional audit comes in response to several complaints of ongoing deficiencies in Boeing’s manufacturing processes and reports of “incredible pressures” employees have come under at the MAX production plants. Former Boeing insiders and others have also expressed frustration over federal authorities’ failure to investigate manufacturing deficiencies that contributed to the 737 MAX crashes before overhauling Boeing safety programs and recertifying the MAX to fly.

Sources: Simple Flying, The New York Times, Seattle Times and AINOnline

Federal Judge Sets Bellwether Trial Dates For Ethiopian Air Crash Lawsuits 

U.S. District Judge Jorge Alonso announced during a status conference earlier this summer he will implement the bellwether approach to try the 130 open claims against Boeing over Ethiopian Airlines flight 302 crash, according to Law360. The cases are consolidated in Illinois federal court before Judge Alonso. 

​The plaintiffs and Boeing must agree on which cases will be tried as bellwether cases.  Judge Alonso noted that the parties are still far from finding a middle ground but urged “buying in from both sides” to get results that can help inform the likely outcomes of the remaining cases. Judge Alonso set two two-week trials for the bellwether cases next year on March 20 and June 5 for two plaintiffs. 

​Plaintiffs submitted a list of 20 cases for consideration ahead of the hearing. Plaintiffs’ lawyers contend that we should be able to choose the cases because we are more knowledgeable about the unique issues in this litigation, including international clients and the challenges that accompany international travel, such as visas. 

Boeing’s lawyers contend that they should share more of the decision-making role in which cases are selected. They believe the cases plaintiffs’ lawyers choose could lead to higher bellwether verdicts and not be entirely representative of the remaining claims, specifically those cases that could result in lower dollar amounts. 

Judge Alonso ordered the plaintiffs to submit 30 additional cases for consideration to reach a consensus among the parties. He said, “If we have to try our way through the entire list, then that’s what we will do.”

The plane crash at the heart of the claims involved the second deadly crash of Boeing’s latest iteration of its 737 – the MAX. The tragedy claimed the lives of all 157 people on board the flight in March 2019, including JuliahMwashi, mother and sister of Beasley Allen clients. Mike Andrews, a lawyer in the firm’s Personal Injury & Product Liability Section, handles much of our aviation litigation and represents the Mwashi family. 

Lawyers representing other plaintiffs in the Ethiopian Air Crash litigation include Robert A. Clifford, Kevin P. Durkin, Tracy A. Brammeier and John V. Kalantzis of Clifford Law Offices PC, Steven C. Marks, Ricardo M. Martinez-Cid, Kristina M. Infante and Pablo Rojas of Podhurst Orseck PA, and Justin T. Green, Anthony Tarricone, Brian J. Alexander, Daniel O. Rose, Megan W. Benett, Andrew J. Maloney III and Erin R. Applebaum of Kreindler & Kreindler LLP.

The case is In re: Ethiopian Airlines Flight ET 302 Crash, case number 1:19-cv-02170, in the U.S. District Court for the Northern District of Illinois.

THE TALC LITIGATION

Talc Bankruptcy Update

As previously reported, Johnson & Johnson (J&J) created a new subsidiary in October 2021 called LTL Management (LTL) and shifted all talc liabilities to this subsidiary before LTL filed for bankruptcy protection in North Carolina.  In November 2021, the bankruptcy judge issued a preliminary injunction, which stayed all talcum powder litigation against all J&J entities.  The bankruptcy judge then transferred the bankruptcy to Judge Kaplan of the U.S. Bankruptcy Court for the District of New Jersey.

At the end of February, Judge Kaplan denied plaintiffs’ motion to dismiss the bankruptcy.  Additionally, he issued another preliminary injunction, which continues the stay on all talcum powder litigation.  Although Judge Kaplan originally planned to revisit the stay on June 29, 2022, that was delayed until at least July 26, 2022, at press time.

Currently, our lawyers are appealing Judge Kaplan’s decision on the motion to dismiss to the U.S. Court of Appeals for the Third Circuit.  On July 21, the Third Circuit scheduled oral arguments on plaintiffs’ appeal for Sept. 19, less than two weeks after the final brief is filed.  This fast schedule is quite unusual and suggests that the circuit court is very interested in reviewing J&J’s action in bankruptcy.  Though we have no idea what the outcome of the appeal might be, we find this to be an encouraging development.

In the meantime, Beasley Allen lawyers continue investigating new cases involving women diagnosed with ovarian cancer after using Johnson’s Baby Powder or Shower to Shower.  For more information, contact Melissa Prickett or Brittany Scott.

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 and mesothelioma cases. Several key team members have been focused on Johnson & Johnson’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.

While Charlie Stern and Will Sutton are on the team, 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

U.S. Supreme Court Issues CSA Decision In Opioid Litigation

The U.S. Supreme Court is demanding a stronger showing of intentional impropriety “in cases where federal opioid prosecutors target “pills-for-profits schemes” under the Controlled Substances Act (CSA), Law360 reports. As a result, the U.S. Department of Justice (DOJ) will have lots of decisions to make on all pending cases relying on the CSA as the basis for liability of a defendant. 

In this opinion, the Supreme Court interpreted the CSA to require proof beyond a reasonable doubt in criminal cases that medical professionals “knowingly or intentionally” prescribed narcotic painkillers in an unauthorized manner. Physician defendants can now show that they were engaged in good-faith treatment more easily. Government prosecutors attempts to portray the doctors as seriously removed from “mainstream medical practice,” as Law360 explained. 

The high court’s decision shifts the balance of power in CSA trials. Recently, such trials involved doctors who wrote many prescriptions for addictive opioids such as hydrocodone and oxycodone. These prescriptions were presumably for pain management but, at times, were for their gain. 

Civil cases in the future will be presented to juries differently. Jurors can expect more testimony from health care practitioners regarding their subjective views and arguments that they legitimately prescribed large amounts of addictive opiates. However, the effect on CSA prosecutions against corporate defendants isn’t as straightforward.

The cases are Ruan v. U.S., case number 20-1410, and Kahn v. U.S., case number 21-5261, before the U.S. Supreme Court.

Source: Law360.com

Opioid Litigation Update

The City of San Francisco settled with Opioid Manufacturers Teva and Allergan during their opioid MDL bellwether trial for a combined $58 million, although a portion of that total involves a naloxone product an opioid overdoes reversal drug.  The city had previously settled with Endo for $10 million.

Teva and its subsidiary Cephalon inappropriately marketed its fentanyl lollipop, Actiq, and lozenge Fentora off-label. Because fentanyl is so potent, much more potent than morphine, it creates a greater risk of addiction and death to an opioid-naïve patient, hence the prescribing limitations.

Allergan, Teva’s co-defendant, faces claims that it misbranded its opioid product Kadian, for which it received a warning letter from the FDA. The agency accused Allergan predecessor Actavis of touting that the product produced results that were not supported by any evidence while omitting or minimizing the risk of addiction and death from the product. Kadian is an extended-release morphine product. 

Extended-release opioids tend to release upwards of 40 percent of the opioid within the hour of ingestion despite the intention that they only are taken every 12 hours.  Minimizing such risks associated with such a product is thus especially egregious relative to immediate-release opioids that contain much less active ingredient.

Beasley Allen, along with the Cooper Firm, Barnes Law Group, and Franklin Law, represents the State of Georgia in its litigation alleging Teva, Allergan, and Endo fueled the opioid epidemic in Georgia.  Beasley Allen represents the State of Georgia against these two defendants in its opioid litigation.  The trial is scheduled for April of 2023.

Opioid Distributors Agree To $250 Million Settlement With Oklahoma

The State of Oklahoma has claimed that drug distributors fueled the state’s opioid crisis, and a $250 million settlement earlier this summer between Oklahoma and defendants McKesson, Cardinal and AmerisourceBergen will end those claims if Oklahoma cities and counties approve it.

This settlement came months after Oklahoma Attorney General John O’Connor rejected the nationwide settlement saying Oklahomans would have been “short-changed,” Law360 reported.

Attorney General O’Connor said he was pleased that his state and the local governments could work together to reach the proposed settlement. The settlement is subject to approval by Oklahoma cities and counties. The Attorney General stated that many Oklahoma families have been devastated, and millions of lives have been lost within the state’s borders by opioid addictions and overdoses.

Attorney General O’Connor refused to join the $26 billion national settlement with the three distributors and Johnson & Johnson in February, citing “the outsized impact the opioid epidemic had had on the state.”

During that time, Oklahoma and two other states refused to join the nationwide settlement. Yet, 46 of the 49 eligible states, along with Washington, D.C., all eligible territories and 90% of the eligible local governments, agreed to the settlement, resolving their claims over the opioid crises.

After the $250 million settlement this summer, Oklahoma’s opioid crisis recovery from drugmakers and distributors totals more than $680 million. The most recent settlement also includes provisions that the defendant drug distributors will establish a “clearinghouse that consolidates data from the three distributors,” Law360 explained. State regulators can use the data to help “prevent prescription opioids from ending up in the wrong hands.”

Last November, the state’s Supreme Court overturned a historic $465 million verdict in the first opioid crisis trial in the U.S., which was against Johnson & Johnson. The Oklahoma Supreme Court determined that the award against J&J, in that case, relied on the incorrect expansion of the state law and was flawed because it was based on an inaccurate interpretation of the “public nuisance” law.

The cases are City of Huntington v. AmerisourceBergen Drug Corp. et al., case number 3:17-cv-01362, and Cabell County Commission v. AmerisourceBergen Drug Corp. et al., case number 3:17-cv-01665, both in the U.S. District Court for the Southern District of West Virginia. The MDL is In re: National Prescription Opiate Litigation, case number 1:17-md-02804, in the U.S. District Court for the Northern District of Ohio.

Source: Law360.com

Rite Aid Settles Opioid Case And Gets Litigation Freeze

Rite Aid Corp. has agreed to settlements valued at $10.5 million to exit three opioid-crisis cases headed toward bellwether trials in multidistrict litigation (MDL). The agreement is between Rite Aid and Montgomery County, Ohio, Cobb County, Georgia, and Durham County, North Carolina. The pharmacy chain will be shielded for 18 months from any other test cases in the MDL. Interestingly, while the settlement was marked confidential, the information relating to the agreement is now in the public domain. One of the counties posted the deal online in connection with a meeting about the settlement.

Payments under the settlement will be split evenly among the three counties with bellwether cases against Rite Aid and other major pharmacy retailers. The settlement agreement also included a promise from lead plaintiffs’ lawyers managing thousands of MDL cases “not to include any Rite Aid entity … as a defendant in any opioid action designated as a ‘bellwether’ in the MDL” for 18 months. This provision protects Rite Aid from MDL cases until 2024.

According to the settlement agreement, allegations against Rite Aid included that it “failed to effectively monitor and report suspicious orders of prescription opioids” and “failed to implement measures to prevent diversion of prescription opioids, which contributed to an increase in opioid addictions, overdoses and deaths in Montgomery, Cobb and Durham counties.”

The cases are Montgomery County Board of County Commissioners et al. v. Cardinal Health Inc. et al., case number 1:18-op-46326; Cobb County v. Purdue Pharma LP et al., case number 1:18-op-45817; Durham County v. AmerisourceBergen Drug Corp. et al., case number 1:19-op-45346; and In re: National Prescription Opiate Litigation, case number 1:17-md-02804, all in the U.S. District Court for the Northern District of Ohio.

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. The vastness of the problems caused has resulted in no slowdown at Beasley Allen 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

Supreme Court To Review DOJ Authority To Dismiss FCA Suits

The U.S. Supreme Court will review a case brought originally by a relator on behalf of the federal government in 2012. The justices will consider:

• whether the Department of Justice (DOJ) can dismiss qui tam suits brought under the False Claims Act (FCA), despite a relator’s objection, and
• if the agency can do so after refusing to intervene in such a case, known as a qui tam action.

The Court will also have the opportunity to consider the standard of review that should apply when the DOJ dismisses FCA suits.

Under the FCA, the federal government can file a lawsuit on its behalf to reclaim money that was acquired deceptively and additional money damages and penalties.  The law also permits a whistleblower (relator) to bring a lawsuit on behalf of the government. The government can then intervene and prosecute qui tam cases or allow the relator to proceed alone. FCA also gives the DOJ power to dismiss such actions upon notice to the relator and despite the relator’s objections.

The Supreme Court is reviewing the DOJ’s authority to dismiss qui tam cases as the agency has begun dismissing such claims more frequently. A January 2018 memo by Michael Granston (the Granston memo), the former director of the DOJ’s Commercial Litigation Branch, instructed the agency’s lawyers to consider more thoughtfully and thoroughly whether to seek affirmative dismissals of potentially meritless FCA cases (Granston Memo). Since then, the DOJ has dismissed at least 50 qui tam actions.  Before the Granston Memo, DOJ exercised its dismissal authority only 45 times in approximately 30 years.

In the current FCA pending case before the Supreme Court, the relator filed his FCA claim in 2012 accusing of overbilling Medicare by falsely certifying inpatient services as medically necessary.  The government refused to intervene two years later.  But it did not seek to dismiss the case until 2019, after seven years of costly litigation borne by the relator. The DOJ contends the FCA vests the government with “complete discretion” to dismiss an FCA lawsuit at any point in the litigation. 

Hopefully, the Court’s decision will address the government’s authority to dismiss a qui tam suit where it failed to intervene and resolve disagreements among circuit courts regarding the appropriate standard of review for dismissals under the FCA.  These standards have ranged from one circuit granting DOJ “unfettered” discretion to dismiss qui tam cases to another circuit requiring the DOJ to demonstrate a “rational relation between the dismissal and a valid governmental purpose.”

If the Supreme Court grants the DOJ the broad authority to dismiss cases over the objections of relators, it threatens the efficacy of the FCA.  Defendants will be more likely to actively encourage the DOJ to dismiss the lawsuit throughout the qui tam litigation well after DOJ has initially declined intervention. Such a ruling could also discourage relators from considering qui tam lawsuits out of concern that their time and resources could be wasted if the DOJ opts to dismiss their case well after its initial refusal to intervene.

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, you can contact a lawyer at Beasley Allen for a free and confidential evaluation of your claim.  There is a contact form on the firm’s website, or you may email one of the lawyers on our whistleblower litigation team:  Lance Gould, Larry Golston, Leon Hampton, Paul Evans, Lauren Miles or Tyner Helms.

Source: National Law Review

Supreme Court Urged To Correct Circuit Split Over FCA Scienter Rule

Scienter, or the knowledge of wrongdoing, is at the heart of a petition before the U.S. Supreme Court by two whistleblowers. They have urged the high court to review a circuit court’s finding that supermarket chain SuperValu Inc.’s alleged overcharging of federal health care programs was not a False Claims Act (FCA) violation because there was no scienter.

The whistleblowers alleged that SuperValu Inc. overcharged Medicare and Medicaid for pharmaceuticals. There is a profound split between the circuit courts over deciding if scienter existed in an FCA case. Yet, in responding to the petition and asking the court not to reexamine the case, SuperValu Inc. tried to leave out aspects of the split among the circuits in its brief. Relators Tracy Schutte and Michael Yarberry, in that reply brief,said:

The conflict is unsurprising, as the question goes to the heart of the FCA, providing a key distinction between actionable misconduct and innocent mistakes.

United Natural Foods Inc. now owns SuperValu. Schutte and Yarberry, both pharmacists, had accused SuperValu of misrepresenting its “usual and customary” pricing for generic drugs to third-party insurers, including Medicare and Medicaid, thus failing to account for price-matching discounts regularly provided to customers in the usual and customary pricing offered to the government programs.

But the Seventh Circuit, in a 2-1 decision in August 2021, found that SuperValu had made an “objectively reasonable” determination of usual and customary pricing and that there was “nothing in the language of the FCA [that] suggests that a defendant’s subjective intent is relevant,” meaning there was no scienter. The Seventh Circuit reinforced that ruling in a similar case in April this year over dissents in both cases, arguing the decisions would effectively facilitate fraud against the government.

In doing so, the Seventh Circuit joined other circuit courts by ruling that the Supreme Court’s so-called Safeco standard, laid out in a 2007 Fair Credit Reporting Act case, also applied to FCA cases. In the Safeco decision, the high court had found that a defendant was not considered to have knowledge of alleged wrongdoing or to have otherwise acted with “reckless disregard” if they made an “objectively reasonable” interpretation of an unclear law or regulation without any available “authoritative guidance” to the contrary.

There is a 4-4 circuit split “roiling the courts of appeals” on the question presented by Schutte and Yarberry in their April petition, the relators argued, which is whether a subjective understanding or belief of lawfulness of the accused conduct matters for determining whether a defendant “knowingly” violated the FCA. That split has only been aggravated since their petition was filed and can only be resolved by the high court, the realtors said.

But instead of addressing the proposed question and the related circuit split head-on in its June brief, the whistleblowers argued that SuperValu had instead tried to downplay the conflict between courts, for example, by arguing that “no circuit has declined to apply Safeco’s objective standard to the FCA where falsity turned on an unclear legal obligation.” The whistleblowers said:

The difference matters because Safeco does not compel the Seventh Circuit’s holding that a defendant’s subjective understanding or beliefs are irrelevant to scienter. On the contrary, many courts cite Safeco as relevant precedent and hold that a defendant’s subjective understanding matters.

The U.S. Chamber of Commerce and Pharmaceutical Research and Manufacturers of America filed Amicus briefs coming down on SuperValu’s side. Sen. Chuck Grassley, R-Iowa, supports the whistleblower’s side. Sen. Grassley, whom the relators described as “the FCA’s principal architect,” as he was the key author behind 1986 amendments to the law that have led to a significant increase in qui tam whistleblower cases, said in his amicus brief that the Seventh Circuit’s decision had left “a gaping hole in the government’s primary fraud-fighting tool.”

Sen. Grassley said that allowing that decision to stand would effectively allow companies to hide behind “post hoc brainstorming” by defense counsel, creating “a robust liability shield for plainly culpable defendants.”

This is a critical issue to any lawyer representing a whistleblower or defending against a whistleblower’s claim for recovery, as Sen. Grassley so aptly points out in his public comments on the issue. If the Supreme Court addresses this issue, it appears most observers believe the court will find that the statute’s intent is more aligned with Sen. Grassley’s position.

We will keep our readers posted on any new developments in this case. For those interested in following the case in more detail, the case is U.S. ex rel. Schutte et al. v. SuperValu Inc. et al., case number 21-1326, before the Supreme Court of the United States.

Source: Law360.com

Effects Of The $9 Million Aerojet FCA Settlement On Whistleblowers

There has been lots of speculation as to the effect of Aerojet Rocketdyne’s $9 million settlement to resolve a False Claims Act suit. It was alleged that the company had misled the government about its cybersecurity. Some believe the settlement in the case could result in more similar cases being filed if the Justice Department (DOJ) is really committed to backing up whistleblowers. But based on the position of the DOJ in other FCA cases, I have to wonder where the government will land in this area of litigation.

Brian Markus, a former Aerojet cybersecurity executive, accused Aerojet Rocketdyne of distorting “its digital defenses to win contracts with the U.S. Department of Defense and NASA,” according to Law360. He will receive $2.61 million from the settlement announced last month.

The DOJ did not get involved in Markus’ suit by formally intervening when the case was initially filed. However, in October 2021, DOJ lawyers filed a 13-page “statement of interest” supporting several of Markus’ arguments. The DOJ made the filing on the heels of launching its Civil Cyber-Fraud Initiative aimed at encouraging more whistleblowers to report cybersecurity-related suits of their own.

It will be interesting to see if the DOJ lives up to its commitment to allocate resources to the issue. If so, the Aerojet case could encourage others to report similar fraudulent claims. Clearly, the case highlights the liability government contractors can face by not addressing cybersecurity concerns raised by their information security teams. Sean Griffin, a lawyer with Dykema Gossett PLLC, made this observation:

This is an effective warning shot across the bow of any government contractor who has not yet been taking cybersecurity as seriously as they ought to.

The DOJ’s Civil Cyber-Fraud Initiative is one of several efforts by government cybersecurity officials to improve government contractors’ security. They have been top targets for hacking groups. 

President Joe Biden issued an executive order in May 2021 implementing data breach reporting requirements for IT sector government contractors. He also signed a law in March this year requiring “critical infrastructure companies to report ‘substantial’ cyber incidents” within 72 hours of occurrence to the federal Department of Homeland Security’s Cybersecurity and Infrastructure Agency.

A former DOJ trial attorney, Griffin, explained that the agency is working to prevent or slow cyberattacks in the industry and hopes that holding contractors accountable will help its efforts. He observed:

You can’t have a defense contractor with lax cybersecurity when you have well-funded nation-states with demonstrated capabilities and motivation to infiltrate American defense contractors. They’ve done it before, and they are going to do it again.

The DOJ launched its initiative last October, saying that it aims to “hold accountable entities or individuals that put U.S. information or systems 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.” However, there is little to indicate the extent to which the agency will intervene in cases like Aerojet.

These cases are complicated and take time to develop. The Markus case is a prime example. He filed his whistleblower suit in October 2015, explaining that he failed to use internal processes to get the company to meet its federal cybersecurity obligations. He was fired when he refused to sign documents saying the company had fulfilled those obligations. The case was finally settled in April, on the second day of a jury trial.

Aerojet’s $9 million settlement is the second high-profile payout in an FCA cybersecurity case in recent years. Cisco’s 2019 $8.6 million agreement to resolve a whistleblower’s allegations of knowingly selling hackable video surveillance gear to government agencies was the other high-profile FCA cybersecurity case settlement. The Aerojet settlement also comes as federal agencies, particularly the Defense Department, have recently increased cybersecurity requirements for contractors, potentially leaving them open to claims of not living up to their promises.

Since 2020, for example, thousands of government contractors have been required to submit a scorereflecting their compliance with 110 security standards. These standards are outlined by the National Institute of Standards and Technology, part of the U.S. Department of Commerce that has influenced cybersecurity expectations for businesses for a long time.

Source: Law360.com

Biogen Pays $900 Million To Resolve Whistleblower’s Kickback Suit

Biogen has settled a long-running kickback lawsuit centered on multiple sclerosis (MS) drugs. Biogen, whose MS franchise has been under serious threat from generics and new competition, Biogen has reached an agreement in principle to pay $900 million to resolve the whistleblower suit. The suit, filed in 2015, alleges that the company paid kickbacks to doctors to increase prescriptions of Biogen’s MS drugs Tecfidera, Tysabri and Avonex.

The suit was asking for treble damages, which permits a court to triple the amount of the damages, plus civil penalties and certain fees. Michael Bawduniak, a sales rep at Biogen between 2004 and 2012, originally brought the lawsuit. According to the plaintiff, Biogen held sham consulting meetings and speaking programs as venues to offer kickbacks to physicians.

The suit alleges that even Biogen’s own compliance department constantly raised concerns that there were simply too many meetings and too many consultants involved in marketing the medicines. But when Bawduniak tried to halt the payment of alleged kickbacks, he was demoted from a director of regional marketing position in 2011 and eventually left the company the next year.

Bawdunkiak is represented by Thomas M. Greene and Michael Tabb of Greene LLP. The government is represented by Evan D. Panich and Patrick M. Callaham of the U.S. Attorney’s office for the District of Massachusetts.

The case is U.S. v. Biogen Inc., case number 1:12-cv-10601, in U.S. District Court for the District of Massachusetts.

Source: Fiercepharma.com

The Beasley Allen Whistleblower Litigation Team

Fraudulent conduct continues to cause huge problems in many industries in this country. Our firm has assigned several lawyers to the whistleblower litigation and increased its healthcare whistleblower practice. Lance Gould, Larry Golston, Tyner Helms, Paul Evans, Leon Hampton and Lauren Miles, lawyers in our Consumer Fraud & Commercial Litigation Section work in this area known as “qui tam” or “whistleblower cases.” They continue to handle cases throughout the country involving fraud against the government. A notable recovery occurred in Birmingham when our firm obtained a $14 million verdict in federal court dealing with a healthcare whistleblower issue.

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 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, as stated above, 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). The whistleblower litigation is definitely increasing. 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, Lauren Miles and Jessi Haynes. Dee Miles heads our Consumer Fraud & Commercial Litigation Section and works with the litigation group.

SECURITIES LITIGATION

$85 Million Settlement In Salmon Buyers Price-Fixing Litigation

A proposed class of direct purchasers of salmon in late May asked a Florida federal judge to grant preliminary approval of an $85 million settlement they reached with North Atlantic salmon-farming companies, Law360 reported.  The class complaint, filed in 2019, alleged that the salmon farms, primarily located in Norway, engaged in price-fixing that affected farm-raised salmon prices all over the world since the benchmark price is set in Norway. 

The settlement will be divided among the estimated 800 settlement “direct purchaser” class members.  Direct purchasers are companies that bought salmon products directly from defendants, like food service distributors and resellers.  Beasley Allen lawyers represent an Alabama plaintiff in a parallel class case for indirect purchasers, such as restaurants and retail stores, which is still ongoing. 

The court ordered the parties to discuss settlement before the deadline for filing for class certification by the direct purchasers. The settlement talks yielded a proposed global settlement. The purchasers said:

This sum not only provides the settlement class with ample relief but also comes at a relatively early stage in the litigation, which is particularly significant in an antitrust case because such cases often last for years. This resolution thus spares the settlement class both litigation risks and substantial litigation costs, preserving more funds for the settlement class.

The direct purchasers alleged in a consolidated complaint that SalMar ASA, Mowi ASA, Grieg Seafood ASA, Lerøy Seafood ASA, Cermaq Group AS, and others engaged in price-fixing on farmed salmon since at least mid-2015.  They allege the price fixing directly impacted and inflated farm-raised salmon prices in the U.S. 

The claims arose from unannounced inspections by the European Commission in February 2019 of Norwegian-owned companies that farm Atlantic salmon. The commission suspected the companies might have inked agreements to coordinate price increases. Later, in November 2019, the U.S. Department of Justice opened a parallel antitrust investigation.

According to the proposed settlement agreement, the settlement class would include all persons or entities in the U.S., their territories and Washington, D.C., who purchased farm-raised Atlantic salmon or related products from the defendants from April 10, 2013, until the date of preliminary approval of the settlement.

The direct purchasers’ lawyers also intend to seek a fee award not to exceed 30% of the settlement fund and recover expenses no greater than $2,250,000. Each settlement class member who submits a valid claim can receive a payment in an amount “based on the claim’s volume of commerce in comparison with the submissions of other claimants on a pro rata basis.”  Defendants could still terminate the settlement if many larger plaintiffs opt out of the settlement, which is conditioned on a certain amount of the volume of salmon sold in the U.S. being included in the settlement. 

We will keep our readers posted on the indirect purchasers class case our firm is involved in and any developments in that very important class. For those that desire to follow the progress of these cases, the case is In re: Farm-Raised Salmon and Salmon Products Litigation, case number 1:19-cv-21551, in the U.S. District Court for the Southern District of Florida. You can also contact James Eubank, a lawyer in our Consumer Fraud & Commercial Litigation Section, who represents indirect purchasers in the case.

$28 Million Settlement In Harman Investors’ Buyout Suit Gets Initial Approval

U.S. District Judge Robert N. Chatigny for the District of Connecticut initially approved a settlement between Harman International Industries Inc. and investors for $28 million. The agreement will resolve claims that the company misled shareholders when it was seeking to acquire Samsung Electronics Co. Ltd. 

The order seeking preliminary approval was filed July 13 by plaintiff Patricia B. Baum. Ms. Baum said the agreement seemed “fair, reasonable, and adequate to class members.”

In the order, Judge Chatigny also granted preliminary certification to the proposed class, which includes those who purchased, sold or held Harman shares between Jan. 10, 2017, when the company held a special stockholder meeting about its merger, and March 12, 2017, when the merger closed. Ms. Baum and her legal team, which is led by Robbins Geller Rudman & Dowd LLP, were also given preliminary certification as class representative and class counsel in the case. Judge Chatigny also scheduled a final approval hearing on the settlement for Nov. 10.

Ms. Baum alleged that Samsung acquired Harman for $8 billion despite the fact that the company was worth “far more” than that. She also claimed that “in contrast to shareholders at large, Samsung personally rewarded Harman insiders with additional payments for consummating the acquisition and continuing with Samsung post-close,” specifying that the company’s chief executive Dinesh C. Paliwal, who is also a defendant in the suit, “negotiated a historically massive side-deal from Samsung,” locking down a nearly $22 million “retention award.”

Ms. Baum is represented by Randall J. Baron and David A. Knotts of Robbins Geller Rudman & Dowd LLP, William H. Narwold of Motley Rice LLC and Brett M. Middleton of Johnson Fistel LLP.

The case is Baum v. Harman International Industries Inc. et al., case number 3:17-cv-00246, in the U.S. District Court for the District of Connecticut.

Source: Law360.com

Beasley Allen Securities Litigation Team

Our firm is actively involved in securities cases, and we continue to grow this area of our practice. Lawyers in our Consumer Fraud & Commercial Litigation Section welcome any opportunity to investigate suspected practices and are blessed to be able to engage with both new and established colleagues in federal securities law and state securities litigation. You can contact a member of our Securities Litigation Team concerning any securities issues. The team consists of:

James Eubank, Demet Basar, Rebecca Gilliland and Paul Evans. Dee Miles, who heads the Section, also works with the team.

THE JUUL LITIGATION

JUUL Class Certification Granted

On June 28, 2022, Judge William H. Orrick of the U.S. District Court for the Northern District of California certified four classes of people who bought JUUL products. The order certified the following classes of plaintiffs:

• Nationwide Class: All persons who purchased, in the U.S., a JUUL product;
• Nationwide Youth Class: All persons who purchased, in the U.S., a JUUL product and were under the age of eighteen at the time of purchase;
• California Class: All persons who purchased, in California, a JUUL product; and
• California Youth Class: All persons who purchased, in California, a JUUL product and were under the age of eighteen at the time of purchase.

Before a class action lawsuit can proceed, the class must be certified. The court must find certain similarities among the plaintiffs requesting the certification.

The court found plaintiffs’ fraud, unfair conduct, unjust enrichment, warranty, and Racketeer Influenced and Corrupt Organizations Act (RICO) claims are all common to the classes. The four defendants (JUUL Labs Inc., the Altria entities, the Founder Defendants, and Other Director Defendants) opposed the motion to certify, arguing the Court should follow previous decisions in other cases involving tobacco and addictive substances where class certification was refused because “the highly individualized nature of decision-making surrounding purchases of products that contain an addictive ingredient” precludes “any finding of common reliance, materiality, and injury, given class members’ different reasons for use and levels of addiction.” Judge Orrick disagreed in his order: He said:

Defendants paint with too broad a brush. They ignore the specific facts and legal theories here that distinguish the cases they rely on and the expert support provided by plaintiffs that was missing in those cases.

Just the week before the certification, the U.S. Food and Drug Administration announced it was removing JUUL’s products from the market because its requests for approval did not include enough evidence that their benefit to adult smokers outweighs the public health. Subsequently, the FDA stayed the ban. We will write on that development below.

Beasley Allen lawyers continue investigating new cases involving people harmed by JUUL e-cigarettes.  For more information, contact Melissa Prickett or Sydney Everett.

Sources: Law360.com and Businesswire.com

Impact Of FDA’s Ban Of JUUL Products On JUUL Litigation

On June 23, the Food and Drug Administration (FDA) rejected JUUL’s application to sell its current e-cigarette products. The ban was delayed in the days and weeks following the marketing denial order. On June 24, the U.S. Court of Appeals for the D.C. Circuit granted JUUL’s request for a temporary administrative stay of the FDA order to give the court sufficient opportunity to consider petitioner’s forthcoming emergency motion for stay pending court review. On July 5, the FDA administratively stayed its order, noting “scientific issues unique to the JUUL application that warrant additional review.” The agency stated carefully in an update to a news release about the ban: “This administrative stay temporarily suspends the marketing denial order during the additional review but does not rescind it.”

The impact of this ban on the multidistrict litigation (MDL) pending in the U.S. District Court for the Northern District of California against JUUL will surely favor the plaintiffs numbering over 3,000. As one lawyer advising vaping companies on regulatory compliance issues has stated:

I think what Juul was banking on in some level was ultimately getting authorized by the FDA [so they could say to the judge that] FDA said our product is appropriate for the protection of the public health. [The order] could have a secondary effect of really hurting [the defense of] those other lawsuits.

Beasley Allen lawyers continue to take a leading role in this MDL and are investigating new cases involving people harmed by JUUL e-cigarettes.  For more information, contact any of the lawyers on the JUUL Litigation Team listed below.

Sources: Food and Drug Administration, CNBC, New York Post and Consumer Affairs

The Beasley Allen JUUL Litigation Team

Beasley Allen lawyers in the Mass Torts Section, led by Joseph VanZandt, are heavily involved in the JUUL litigation. The lawyers represent individuals suing JUUL, the top U.S. vape maker, for the negative impact its products have had on the lives of victims. Our lawyers also represent a number of school systems in the JUUL litigation. The firm’s JUUL Litigation Team has filed lawsuits nationwide on behalf of school districts. This litigation seeks to protect students and recover resources spent fighting the vaping epidemic.

Beasley Allen continues to file cases for 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 trial 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.

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

“Phantom Exposures: The Defendants’ Search For Alternative Causation”

In a nutshell, asbestos litigation comes down to (1) product identification, (2) causation and (3) liability.  It is generally agreed that asbestos causes mesothelioma, but the defendants in asbestos litigation rarely admit that their asbestos caused the it-issue mesothelioma.  Instead, the defendants attempt to identify alternative sources of asbestos that they can argue were the real causative exposure. 

In a recent case, Charlie Stern says his client’s mesothelioma was caused by routine and repeated exposures to industrial talc. Despite the clear evidence of these exposures, the defendant attempted to shift blame to the client’s work in a phosphate mine.  However, the defendant had no evidence to substantiate such claims and was entirely based on speculation. 

The suggestion of alternative causation can be challenging to overcome, especially if unsubstantiated, before a jury.  To protect against this tactic, mesothelioma clients must be prepared for what otherwise would seem to be harmless questioning by defense counsel.  Additionally, Beasley Allen lawyers file necessary motions in limine to eliminate the threat of misleading and speculative arguments attempting to create exposures of which there is no legitimate evidence.

Eliminating this common defense tactic is necessary to protect your client’s case and furthers the truth-finding mission.  At Beasley Allen, our mesothelioma lawyers are prepared and skilled in staving off this attempt by the defendants. With this advocacy, we put our clients in a position to ensure that their cases are as strong as possible. If you need more information on asbestos litigation, contact Charlie Stern.

Union Carbide Asbestos Verdict Restored

Union Carbide, a unit of Dow Chemical, faces a $2.38 million verdict after the New Jersey Supreme Court reinstated a trial court’s ruling, Law360 reported.

The state’s high court endorsed the lower court’s findings that  Union Carbide was responsible for ensuring workers were aware of the risks associated with handling the company’s asbestos-containing products. The court relied on a longstanding law that asbestos manufacturers like the defendant have a “dual duty.” They must give adequate warnings of the risks of their products to employers and employees.

The plaintiff in the case was Thomasenia Fowler, who filed the lawsuit after her husband, Willis Edenfield, died from mesothelioma. She alleged that Mr. Edenfield’s mesothelioma developed due to his exposure to Union Carbide’s asbestos-containing products.

While the defendant put warnings on its asbestos bags that warned of “serious bodily harm” since at least 1972, the state’s high court noted that Union Carbide’s own staff said the labels weren’t adequate enough to warn of exposure threats. The company didn’t improve and replace the labels. Instead, it sent materials such as data sheets and safety pamphlets to employers.

Referencing the precedent, the court explained that it isn’t enough for asbestos manufacturers to warn employers and expect them to pass the information to their employees. It said:

Union Carbide knew that asbestos exposure causes cancer. Placing adequate warnings on asbestos bags was clearly feasible, yet Union Carbide chose not to do so. Union Carbide therefore deprived Edenfield of critical information — information that would have allowed him to make vital decisions concerning his life and health.

The lawyer representing Mr. Edenfield’s family, Amber R. Long of Levy Konigsberg LLP, told Law360 that the win was important for the family and “for the health and safety of the workers of New Jersey.” She added:

The Supreme Court reaffirmed that manufacturers of dangerous products cannot evade liability when they fail to place adequate warnings on those products and injure innocent people. As gratifying as it is to see Union Carbide held accountable by a jury and by New Jersey’s highest court for its part in causing Mr. Edenfield’s mesothelioma, it is equally as wonderful to have secured this huge victory for public safety and workers’ rights in New Jersey.

Mr. Edenfield worked at a Bloomfield, New Jersey, plant that made adhesive products in Bloomfield, New Jersey, between 1954 and 1994. During his time at the plant, Mr. Edenfield worked for at least three different companies.

Rodney Dover was a former co-worker of Mr. Edenfield and testified at trial. He told the court that Mr. Edenfield worked in a small room and frequently cut open bags of asbestos, weighed them then placed them in containers that were sent to other areas of the plant for processing. Mr. Dover testified that he shared concerns about inhaling the dust with his supervisor. He even explained the need for better ventilation. The response to his concerns was inadequate, according to Mr. Dover. The employees were not instructed how or when to use the company’s respirators.

In ruling in favor of Ms. Folwer, the trial court found that Union Carbide failed to provide adequate warnings on its asbestos bags, which was the proximate cause of Mr. Edenfield’s exposure to the asbestos, a substantial factor in causing his mesothelioma. It also found that the defendant failed to take reasonable steps to ensure Mr. Edenfield also received the same warnings as his employers.

The trial court’s verdict was returned by a state appellate division court. It found that a manufacturer could rely on the employer to relay its warnings to the employees under certain circumstances. After hearing arguments in January, the New Jersey Supreme Court overturned the appellate court’s decision and reinstated the trial court’s verdict.

The plaintiff, Ms. Fowler, is represented by Amber R. Long of Levy Konigsberg LLP. The case is Thomasenia L. Fowler v. Akzo Nobel Chemicals Inc., case number 085939, in the New Jersey Supreme Court.

Source: Law360.com

New York Jury Awards Worker’s Family $15 Million In Mesothelioma Case

After a three-week trial, a New York state court jury reached a verdict last month in favor of the family of Munir Seen, a construction worker who died of mesothelioma at 69 in 2019. The jury awarded Mr. Seen’s family $15 million after finding that Kaiser Gypsum Co. Inc. “acted with reckless disregard for safety in selling a joint compound that contained asbestos,” according to Law360. 

A lawsuit was filed in 2018 after Mr. Seen was diagnosed with mesothelioma in 2016 when he experienced shortness of breath. The construction worker worked in New York and New Jersey from the 1960s to the 1980s, using a joint compound made by Kaiser Gypsum. The defendant’s directions for using the product instructed Mr. Seen to sand down the compound, generating dust that contained asbestos.

Initially, Mr. Seen’s lawsuit named other contractors, manufacturers and companies. The trial court dismissed some of the companies from the lawsuit or granted summary judgment, while others settled.

The Seen family is represented by Daniel P. Blouin, Donald P. Blydenburgh, Randy S. Cohn, James R. Huss and Olivia Kelly of Simmons Hanly Conroy. The case is Seen v. 84 Lumber Co. et al., index number 190225/2018, in the Supreme Court of the State of New York, County of New York.

Source: Law360.com

The Beasley Allen Asbestos Litigation Team

Asbestos litigation continues to be extensive nationwide. Beasley Allen’s Asbestos Litigation Team is headed by Charlie Stern in our Dallas, Texas, office. 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, so he was selected to lead the Beasley Allen team. If you need assistance with cases involving asbestos products, contact one of the team members.

MASS TORTS LITIGATION

Belviq: European Medicines Agency Recommended Rejection Of Belviq Drug Application In 2013 Due To Potential Cancer Link

On Jan. 17, 2013, the European Medicines Agency (EMA) recommended rejecting the weight loss drug Belviq’s initial application due to identifying several tumor types in rats, particularly in males.  In its assessment report, the EMA concluded that “the risk of carcinogenicity in a man should be further considered in the light of these preclinical findings, together with a discussion on the potential impact on the risk benefit.”

Further, the EMA determined for both sexes that “[t]he overall risk benefit is currently considered negative.”  As a result, the EMA required Arena Pharmaceuticals, Inc. (Arena) to provide a written report justifying Belviq’s approval. On May 3, 2013, Arena responded that it would withdraw its application because it would not be able to resolve the EMA’s objections within the required regulatory timeframe.

The U.S. Food and Drug Administration (FDA) approved Belviq’s New Drug Application in June 2012. Still, it required the manufacturer to conduct a randomized, double-blind, placebo-controlled clinical study to evaluate the risk of cardiovascular problems due to similar weight loss drugs, which were later linked to cardiovascular issues.  The FDA’s analysis of the study found that just over 7% of patients treated with Belviq were diagnosed with cancers compared to the placebo group.  This ultimately led Belviq’s manufacturers to withdraw Belviq from the U.S. market voluntarily.

Beasley Allen lawyers investigate cases on behalf of individuals prescribed Belviq and subsequently diagnosed with cancer, including but not limited to pancreatic, colorectal, thyroid, and breast. For more information, contact Melissa Prickett or Roger Smith.

Sources: European Medicines Agency

Philips May Have Known For Years The Damage Its Machines Can Cause

On June 14, 2021, Philips Respironics issued a voluntary recall of over 15 million CPAP, BiPAP, and ventilator devices, at least half of which are used daily in the U.S. In a recent court filing, Philips’ claims that it did not know of the devices’ defect was put under the microscope when emails from a project mechanical engineer for the company were read. Vincent Testa, the Philips engineer, wrote an email discussing the breakdown of the sound abatement foam and how the material, when shed, is pulled into the ventilator air path. Testa’s email asks a company supplier what could cause the foam to break down. The answer is “high humidity.” Since ventilators and CPAPs rely on water to keep users’ mouths from drying out while sleeping, the existence of “high humidity” is nearly a certainty.

The engineer’s email is not the first evidence of Philips being warned about this issue. FDA investigators are alleging that Philips may have known as early as 2016 that the sound abatement foam was capable of harming its users. One internal email cited by the FDA inspectors seems to imply that a Philips consumer alerted the company to the breakdown of the foam. Further, an email chain among Philips staff discussed testing that confirmed consumer complaints about the foam’s degradation when exposed to heat and humidity. Then, in that very same conversation, Philips staff decided against changing the design of the foam to address this issue.

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. Philips claims it will have all defective machines refurbished or replaced by the fourth quarter of 2022.

For more information, contact Melissa Prickett or Beau Darley.

Sources: FDA.gov, NBCChicago.com and Bloomberg News

Baby Formula & Necrotizing Enterocolitis – Litigation Update

As we have previously reported, litigation is ongoing against the manufacturers of cow’s milk-based infant formula. These lawsuits allege that these formulas caused babies to develop necrotizing enterocolitis (NEC). NEC is a devastating disease that typically occurs in premature infants. The mortality rate of NEC ranges from 10% to 50%, depending on the severity of the disease, with the smallest babies at the highest risk.  Children that recover from NEC may be left with a host of lasting gastrointestinal effects, including incontinence in older children and teens.

So far, Beasley Allen lawyers have filed eleven lawsuits in Madison County, Illinois, where at least one of the manufacturers is located. These cases include five children who recovered from NEC but continue to deal with the consequences years later and the parents of six children who died due to NEC brought about by cow’s milk formula.

Many states have rules extending the amount of time allowed to file personal injury or wrongful death lawsuits on behalf of babies and children, so it is important to get potential cases evaluated, even if the diagnosis was years ago.   Beasley Allen lawyers are investigating cases on behalf of the parents of children who suffered from NEC.  For more information, contact Melissa Prickett or Brittany Scott

THE PARAQUAT LITIGATION

Update On The Paraquat MDL

The Paraquat Products Liability Litigation multidistrict 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.

Syngenta is one of three defendants who manufactured, marketed, and distributed paraquat.  The acute poisonous properties of paraquat are well known:  drinking a thimble full can immediately kill a person.  Defendants also knew that exposure to paraquat can cause extensive damage to the human nervous system. Despite this knowledge, the defendants took active steps to conceal the devastating side effects of paraquat.  Syngenta expanded the cover-up to continue bringing in profits by publishing a website, which is still active to this day, at www.paraquat.com to convince the public that paraquat is safe.

This website touts “the benefits of paraquat” on the farm, the environment, and rural communities.  An entire section of the website is entitled “paraquat does not cause Parkinson’s disease,” which is filled with propaganda and is designed to mislead the agricultural community. Despite science proving the connection between paraquat and Parkinson’s disease, Syngenta actively disavows a connection. Paraquat is still being sold to farmers today. 

Beasley Allen lawyer Julia A. Merritt is a member of the Plaintiffs’ Executive Committee on the Paraquat MDL. Our firm’s Paraquat Litigation Team will be glad 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 lawyers continue accepting cases where clients applied paraquat and have Parkinson’s Disease or Parkinson’s-like symptoms. You can contact a lawyer on the team if we can be of assistance to you in your paraquat applicator cases.

The Paraquat Litigation Team

The Paraquat Litigation Team at Beasley Allen includes lawyers in our Toxic Torts Section. They handle 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 he works with the team on this important litigation.

EMPLOYMENT AND FLSA LITIGATION

Beasley Allen Litigates Federal And State Employment Law Matters

For more than 40 years, the team of employment lawyers at Beasley Allen has helped thousands of clients resolve workplace disputes, including wage and hour disputes, wrongful termination, retaliation, discrimination, whistleblower protections, and sexual misconduct.  Employment law is a broad area of the law that covers the rights, obligations, and responsibilities of an employer and its workers.  Numerous federal and state laws, regulations, and judicial precedent relate to the employer-employee relationship and define their respective rights and responsibilities. We will write on each area below.

Wage and Hour

The Fair Labor Standards Act (FLSA) is a federal law passed by Congress in 1938 that applies to most businesses in the U.S.  The FLSA establishes a national minimum wage, guarantees overtime pay for hours worked more than 40 per week in certain jobs and prohibits employers from exploiting minors and engaging in “oppressive child labor.”  While the FLSA applies to nearly every business or organization in the U.S., it does not apply to independent contractors or volunteers because they are not considered “employees” under the FLSA.

A cornerstone of wage and hour litigation is the Equal Pay Act, the “Equal Pay for Equal Work” law that prohibits sex-based wage discrimination between men and women in the same establishment performing jobs that require equal skill, effort, and responsibility under similar working conditions.  According to the Equal Employment Opportunity Commission (EEOC), wages can include more than just hourly or annual pay; they include bonuses, company cars, expense accounts, insurance, and other forms of compensation.  If an employee proves he was paid an unequal amount, the court can award back pay, attorney’s fees and litigation expenses.

Employment Discrimination

Employment discrimination can be considered a form of workplace injury.  This refers to discriminatory employment practices such as bias in hiring, promotion, job assignment, termination and compensation, and various types of harassment.  Both federal and state laws regulate workplace discrimination so that it can vary from state to state.  Federal law prohibits employers from making professional decisions based on the following: age, disability, national origin, race, religion and sex.  The EEOC notes that discrimination based on race and gender are the two most commonly “reported” areas of discrimination.  However, that does not necessarily mean these are the two areas with the most discrimination.

Wrongful Retaliation

Closely related to the issue of discrimination is workplace retaliation.  Retaliation may occur in the workplace when an employer punishes an employee for an action permitted by law but which the employer wants to discourage.  For example, an employer may retaliate against an employee who makes harassment or discrimination complaints, reports workplace injuries, reports fraud or other wrongdoing or participates in an investigation.  Retaliation may come in many forms, from outright firing to demotions, being denied a promotion or a pay raise, or reassigned to a less desirable job or shift.  There are federal and state laws in place that protect employees from illegal retaliation in the workplace. 

Wrongful Termination

Wrongful termination occurs when an employee is fired for an illegal reason, such as unlawful discrimination.  Federal employment law provides that no employee can be fired based on race, gender, ethnic background, religion, or disability.  An employee may also have a wrongful termination case if fired for lodging a legal complaint against the employer or making whistleblower allegations exposing the employer’s wrongdoing.  Firing an employee for these reasons is illegal, even if she is an at-will employee.

Sexual Harassment

Sexual harassment is outlawed by Title VII of the Civil Rights Act of 1964 because it is a form of discrimination, as stated by the EEOC.  The agency defines sexual harassment as “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”  More specifically, quid pro quo harassment involves a supervisor or person who has the power to make or recommend employment decisions, requiring an employee to accept unwanted advances or to participate in a sexual relationship in exchange for keeping their job or getting a promotion.

Our team of employment lawyers has helped thousands of clients resolve workplace disputes under federal and state laws.  If you have questions about whether you are a victim of workplace violations or need help on a case, you can contact one of our lawyers on the Employment Litigation Team.

Supreme Court Punts “BMS Issue” In FLSA Collective Actions

In June, the U.S. Supreme Court refused to hear cases that could end a circuit split over the issue of “whether federal courts may exercise personal jurisdiction over claims of nonresident plaintiffs who join Fair Labor Standards Act (FLSA) collective actions” even if their claims are not connected those of the defendant in the forum state, The National Law Review reported. The issue, known as a “BMS issue,” is a result of the 2017 U.S. Supreme Court ruling in Bristol-Meyers Squibb Co. v. Superior Court. The Court’s refusal to hear the cases raising this issue leaves it to the circuit courts to determine if the ruling in BMS applies to FLSA collective actions.

At this juncture, only the First, Sixth, and Eighth Circuits have ruled on the issue. In January 2022, in Waters, the First Circuit held that federal courts have personal jurisdiction over claims asserted by nonresident opt-in plaintiffs, thus concluding that the “BMS issue” didn’t apply to FLSA cases.

However, in August 2021, the Sixth Circuit ruled in Canaday that the “BMS issue” did apply in FLSA cases claiming federal courts did not have personal jurisdiction over nonresident plaintiffs who join FLSA collective actions. The next day, on Aug. 18, 2021, the Eighth Circuit came to the same conclusion in Vallone v. CJS Solutions Group, LLC.

In BMS, the plaintiffs brought a mass tort action in California state court against the defendant over defects in its blood-thinning drug, Plavix. The plaintiffs included California residents and nonresidents who alleged injuries linked to Plavix. Nonresidents did not assert a relationship with the forum state. They didn’t purchase the drug in California, nor did they claim that they suffered harm from the drug in California.

The Court determined that the similarity between resident and nonresident plaintiffs’ claims was an “insufficient basis” for exercising specific jurisdiction. It found that plaintiffs had to show their claims occurred or resulted from the defendant’s contacts with California, the forum state. Without such evidence, the lower court could not exercise personal jurisdiction over the company regardless of “the extent of a defendant’s unconnected activities in the State.”

The Court conceded that its ruling in BMS would likely result in more litigation because of separate actions by nonresident plaintiffs in their own states. However, it also pointed out that the plaintiffs could have brought a mass tort action in New York, where the defendant’s headquarters are located or in Delaware, where the company was incorporated. The BMS ruling was limited to mass torts. It left open the question of whether the decision applies to cases that differ procedurally, including federal class actions in general and FLSA collective actions. Currently, the circuits are divided on these cases and how to apply BMS in such cases.  

Many in the plaintiffs’ bar are outraged at the Supreme Court’s ruling in BMS. Personal jurisdiction is essential to render a fair forum for all parties. Aggregating claims is also an important principle in the law. However, when personal jurisdiction issues interfere with aggregating claims, the result can undermine the effective enforcement of substantive laws and procedural rules.

The Supreme Court’s decision in BMS has created a disturbing issue in that personal jurisdiction could potentially block the certification of a nationwide class action or a collective action under FSLA, which is often necessary for court access and enforcement. A correct understanding of BMS and the broader principles that the Supreme Court has developed in the past on personal jurisdiction does not translate to the “BMS issue” applying to class actions and FLSA collective actions.

The Constitution permits specific jurisdiction in any case where there is specific jurisdiction over the named plaintiff’s claim against the defendant, provided that the class action or collective action under the FLSA is led by that plaintiff would satisfy the certification requirements of a class action and an FSLA collective action.

This principle has been further bolstered by the Supreme Court’s most recent decision on personal jurisdiction—Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S.Ct. 1017 (2021). The upshot is that personal jurisdiction can exist over a class action or an FLSA collective action even if the forum state would not have personal jurisdiction over a hypothetical separate action by an out-of-state individual who is an unnamed member of a class action or FLSA collective action.

Most lawyers, including those at Beasley Allen, believe when the Supreme Court finally decides whether the “BMS issue” actually applies to class actions or FLSA collective actions, it will return to the principles found in the high court’s prior decisions and reflected in the Ford case. That will mean federal courts can exercise personal jurisdiction over nonresident class members and / or FLSA collective actions, meaning the “BMS issue” does not apply to those types of cases. Until that day comes, the debate continues.  We will keep our readers posted – stay tuned!

Source: National Law Review

The Beasley Allen Employment Litigation Team

We discussed above the types of cases Beasley Allen experienced lawyers handle. The following lawyers are on the Beasley Allen Employment Litigation Team:

Lance Gould, Larry Golston, Leon Hampton, Lauren Miles and Jessi Haynes.

PREMISES LIABILITY LITIGATION

Liability Of Charitable Organizations

Generally speaking, nonprofit or charitable organizations may be held liable for the actions of their workers if the worker is acting within the scope of their duties. However, in some states, a nonprofit or other charitable organization may be able to avoid liability for the acts or omissions of its workers by claiming charitable immunity.

Charitable Immunity is a common law doctrine that holds that a charitable organization is not liable under tort law. In a majority of states, this doctrine has been completely abolished. However, Georgia is among a minority of states that have attempted to modify the doctrine so that immunity applies in some cases but not others. Immunity does not extend, for example, to the corporate or original negligence of the charitable entity in the employment or retention of incompetent employees.

Some steps nonprofits can take to minimize risk are regularly performing background checks on potential volunteers and ensuring that selected volunteers are adequately trained and supervised. Unfortunately, these measures are not always undertaken, and people can be harmed. 

If you need more information on premises liability or liability of nonprofit or charitable organizations in Georgia, contact Parker Miller or Houston Kessler, lawyers in our Atlanta office. You can also contact Ben Locklar, a lawyer in our Montgomery office or call the firm at 800-898-2034.

Summer Camp: Signs Of “Grooming” And What Camps Can Do To Prevent Abuse

Summer camps are hugely popular in the U.S. Tragically, they can often be ground zero for sexual abuse. Therefore, camps, kids, and parents must understand the signs of abuse and develop policies aimed at stopping it before it can occur.

Grooming is the process whereby an abuser manipulates the victim into normalizing the abuse. Recognizing that grooming is occurring is one of the best opportunities to spot and end abuse. Grooming often follows a set pattern. An abuser will select, gain access to, and isolate the victim. The abuser will then try to gain the victim’s trust by providing gifts and attention. Finally, abusers often desensitize their victims to physical touch by engaging in “harmless” physical contact such as hugging, wrestling, and / or tickling. This desensitization is meant to normalize physical contact, making it easier for sexual abuse to occur in the future. Understanding grooming and the conditions in which it can happen is essential to combat sexual abuse in the camp setting.

Camps should ensure that policies are implemented to prevent sexual abuse before it can occur. An effective prevention system should include: 1) sexual abuse awareness training, 2) an effective screening system, 3) policies and procedures focused on camper safety that are tailored to fit camp needs, 4) a criminal background check system, and 5) a system to ensure that the policies are utilized, and oversight is extended.

The worst system a camp can employ is one that exists on paper but is never used in practice. By preparing for the worst eventuality, summer camps can ensure that the worst never occurs. 

Beasley Allen lawyers have successfully handled abuse, premises liability, and negligent security cases. For more information, you can contact our Personal Injury & Products Liability Section.

Sources: Abuse Prevention Systems, American Camp Association and RAINN

TOXIC TORT LITIGATION

3M Earplug Litigation Update

The federal judge overseeing the 3M Combat Arms Earplug Version 2 litigation ordered the parties to attend mediation beginning on July 15. Randi S. Ellis serves as the special master for the three-day mediation. Retired judge Mark Falk and Ellen Reisman are assisting the Special Master in the mediation.

3M is potentially facing billions of dollars in liability in over 200,000 lawsuits alleging that its Combat Arms Earplug Version 2 caused hearing loss and tinnitus in veterans. The dual-ended earplugs, which can be traditionally used or flipped into another position to dampen sounds while letting in quieter noises, could imperceptibly loosen and lose their seal. The lawsuits, including a smaller number of consumers and police plaintiffs, started in 2018 after 3M settled a whistleblower lawsuit alleging that it knowingly sold the earplugs to the military without disclosing defects.

The plaintiffs prevailed with significant jury verdicts in 10 of the 16 trials to date. 3M is preparing to defend against another 1,000 lawsuits selected to proceed toward trial. The cases are primarily consolidated in the U.S. District Court for the Northern District of Florida.

If you need more information, contact Will Sutton, a lawyer in our firm’s Toxic Torts Section.

Source: The Wall Street Journal

EPA Issues New Lifetime Health Advisories For PFOA And PFOS

On June 15, 2022, the EPA released new advisories for PFOA and PFOS.  The interim updated health advisory for PFOA is .004 parts per trillion, and the advisory for PFOS is .02 parts per trillion.  These updates are lifetime health advisories, meaning the suggested level is expected to prevent any adverse noncarcinogenic effects. The changes come after the EPA evaluated numerous studies showing that these chemicals can cause adverse health effects at a lower rate than previously believed. Decreased immunity after vaccination appears to be the symptom that occurs at the lowest exposure level to these chemicals, so the EPA is targeting that level specifically in hopes of avoiding any other negative outcomes.  These new health advisories are not legally enforceable and may be updated as new information becomes available.

While these new health advisories may not carry the full weight of enforceable law, the EPA’s history in issuing health advisories for other substances shows that this is likely the first step in the agency’s process of setting maximum contaminant levels. The EPA announced earlier this year its plans to propose a maximum contaminate levels goal, according to Law360. It also plans to announce a national primary drinking water regulation for PFAS and PFOS by the end of this year and a final rule by the end of next year. The maximum contaminate levels would establish the minimum standards states would be required to meet.

Without a comprehensive set of maximum contaminate levels for PFAS and PFOS, states have used the EPA’s advisories to establish their own standards, but there is no uniformity legal analysts explain. The new advisories can provide better guidance to states that have established their own standards and those considering setting their own standards.  

The challenge will come in complying with the new, lower levels. Some industries and facilities have trouble complying with the current levels because of the types of chemicals and the broad use in many different products. For example, airports and landfills will face a larger challenge in finding ways to comply with the new levels.

Environmentalists argue that this should serve as a cautionary tale to the EPA. Before approving and allowing them on the market in the future, the EPA should first prove that chemicals and other substances are safe for use.

Local water utilities and water authorities may incur costs through no fault of their own for the PFOA and PFOS in their water. The toxic torts lawyers at Beasley Allen are prepared to represent those water utilities and authorities against the corporations responsible for the contamination of drinking water sources.

If you have any questions or need more information, contact David Diab.

Sources: Environmental Protection Agency and Law360.com

Class Action Litigation

Water Intrusion Defect Class Action Filed RE: Ram Trucks

Dee Miles, Clay Barnett, Mitch Williams, and Dylan Martin, lawyers in our Consumer Fraud & Commercial Litigation Section, are handling a very important class action lawsuit against Fiat Chrysler Automobiles LLC (FCA) filed in the Eastern District of Michigan. Our plaintiff alleges that 2016-2022 RAM 1500 trucks (Class Vehicles) are designed, manufactured, sold, and leased with a defect that allows water to enter the cabin through the rear cabin window, the roofline third brake light, and / or the roof-mounted auxiliary antenna. This is referred to as the “Water Intrusion Defect.”

These defective Ram 1500 trucks present a serious safety risk to vehicle occupants’ safety and health. Let’s take a look:

• First, the Water Intrusion Defect causes a foul odor, mold, and mildew, which can cause health issues for the vehicles’ occupants.
• Second, the Water Intrusion Defect can short the vehicles’ BCM or other electronic systems connection(s), such as the push-to-start ignition system, locks, windows, headlights, taillights, interior lights, windshield wipers, climate control, infotainment system and navigation, and back up camera. Failure of one or all these systems not only distracts the driver but could also cause, among other things, vehicle start-up failure, headlight and taillight failure (a violation of traffic ordinances and National Highway Traffic Safety Administration (NHTSA) regulations), inoperable turn signals or brake lights (same), inoperable backup camera or infotainment system, inoperable windshield wipers, and the inability to lock (or unlock) the vehicle.
• Third, the water intrusion contacts and interferes with the rear-cabin airbag and its propellant, contaminating and fouling the propellant, creating the same condition in the recalled Takata airbags.

The class alleges that FCA has known of the Water Intrusion Defect as early as 2016 based on consumer complaints submitted to NHTSA, pre-release design and testing, warranty claims for repairs associated with the Water Intrusion Defect, and technical service bulletins issued by FCA. To date, FCA has not recalled model year 2016-022 Ram 1500 trucks for the Water Intrusion Defect, nor has FCA determined the root cause of the defect.

If you or someone you know has experienced the Water Intrusion Defect in their Ram 1500 truck, contact Dee Miles, Clay Barnett, Mitch Williams, or Dylan Martin.

The FCA Water Intrusion case is Norman v. FCA US LLC and is filed in the U.S. District Court for Eastern District of Michigan. The plaintiff and the proposed class are represented by Dee Miles, Clay Barnett, Mitch Williams, and Dylan Martin from Beasley Allen, along with lawyers with The Miller Law Firm, P.C., and Dicello Levitt Gutzler, LLC, both located in Chicago, Illinois.

Ninth Circuit Affirms Class Certification In Canned Tuna Purchasers Class

The Ninth Circuit Court of Appeals, sitting en banc, recently reinstated the district court’s decision certifying classes of StarKist canned tuna purchasers in a multidistrict antitrust case alleging a price-fixing conspiracy.  The en banc ruling comes after a panel of the Ninth Circuit held that the district court abused its discretion in granting class certification by leaving to the jury a dispute among the parties’ experts concerning the number of class members who were injured by the anticompetitive conduct.  The en banc ruling is notable for its implications relating to the circumstances in which class actions are proper for certification under Federal Rule of Civil Procedure Rule 23(b)(3).

In the district court, the tuna purchasers’ expert conducted a statistical analysis and opined that 5.5% of the proposed class may not have suffered injury due to the price-fixing conspiracy.  The tuna purchasers argued that its expert’s statistical evidence was sufficient classwide proof of harm. 

However, the defendants’ expert opined that the tuna purchasers’ expert’s methodology was flawed and that 28% of class members were uninjured, which created individualized inquiries defeating class certification. 

The district court ruled that determining which of the parties’ experts were correct regarding the number of uninjured class members was beyond the scope of a Rule 23 analysis at the class certification stage.  As such, the district court granted class certification, holding that the tuna purchaser’s antitrust claims could be classwide proof under Rule 23(b)(3).    

Upon the defendants appealing the decision, a split panel of the Ninth Circuit vacated the granting of class certification as an abuse of discretion. The panel reasoned that class certification is not warranted where a proposed class includes more than a de minimus number of uninjured class members.  While the panel did not establish a threshold for the percentage of uninjured class members to be more than de minimus, it stated that 28% would be “out-of-bounds.”  After articulating this de minimus rule, the panel remanded with instructions to resolve the dispute among the experts regarding the number of uninjured class members.

The Ninth Circuit then agreed to hear the appeal en banc and ultimately affirmed the class certification decision, holding that the district court did not abuse its discretion in determining that the tuna purchasers’ statistical evidence was capable of establishing injury on a classwide basis. 

The Ninth Circuit further held that “a district court cannot decline certification merely because it considers plaintiffs’ evidence relating to the common question to be unpersuasive and unlikely to succeed in carrying the plaintiffs’ burden of proof on that issue.”  Importantly, the court rejected the de minimis rule for establishing classwide injury articulated by the panel. 

In all, the Ninth Circuit’s en banc decision makes clear that plaintiffs in class actions need only establish that injury is capable of classwide resolution and need not prove, at the certification stage, that the issue of injury will ultimately be resolved in their favor at trial.

If you need more information about this case, contact Paul Evans.

The case is Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, 31 F.4th 651 (9th Cir. 2022).

Source: Law360.com

The Bank Of America Zelle Litigation

A class-action lawsuit has been filed claiming Bank of America has failed to warn customers about the risks of sending money through Zelle. “7 On Your Side,” a program on ABC TV station WABC-TV in New York City, has reported scams linked to the quick-payment app Zelle, owned by major banks. Scammers use various schemes to trick victims into sending them money and draining their targets’ bank accounts.

Fraudsters rely on the convenience the app provides consumers. The app is widely used and can be operated privately by individuals. It is also popular among hundreds of banks, which add the app to their online and mobile banking apps. Zelle makes it quick and easy to transfer money, but when these transfers are not legitimate, it also means they can’t be traced or reversed.

Many Bank of America customers told the news outlet that they were “tricked into sending money to imposters using Zelle.” They filed a federal class action against the financial institution after learning that it doesn’t offer fraud protection for Zelle transactions. The plaintiffs claim that Bank of America encourages its customers to use the app but doesn’t warn about the “huge security risks” that come with linking their bank account with the Zelle app.

The lawsuit also claims that Zelle is the most popular peer-to-peer payment app in the U.S., with $490 billion in money transfers in 2021. And despite being aware of the app’s “massive fraud problem,” Bank of America still “touts Zelle as a secure, free and convenient way to make money transfers.”

According to those who have been tricked while using the app, there is no warning about potential fraud, but 7 On Your Side reports that “[o]nce money is sent, [the app] says, ‘there is virtually no recourse for consumers to recoup losses’ due to fraud.”

One plaintiff in San Jose, California, sent $2.500 to fraudsters by using Zelle and $4,200 by using Venmo and Bank of America refuses to reimburse him for the loss. Plaintiffs say that Bank of America hides behind the customer service agreement: “Neither the bank nor Zelle offer a protection program for authorized payments.”

While officials are warning about the scam, plaintiffs claim that the same warning should be included in marketing materials about the app. They say that Bank of America has refused to reimburse customers defrauded by bank imposters over the past two years, but after the news outlet revealed the scams and fraud, Bank of America reimbursed all those customers who “were brought to its attention.”

The lawsuit only names Bank of America and doesn’t include Zelle or Venmo. It asks for relief for the defendant’s customers who were defrauded through Zelle or other payment apps without being refunded.

Source: WABC-NY, KGO, Law360.com

Credit Suisse Reaches $13.7 Million Settlement With Investors In Libor Case

Representative plaintiffs of a proposed class of investors asked a New York federal court to approve a $13.7 million settlement with Credit Suisse. The California State Teachers’ Retirement System, Frank Divitto, Richard Dennis and Fund Liquidation Holdings LLC submitted a memorandum supporting their bid for approval of a settlement they say is procedurally fair and resulted from “hard-fought, arm’s-length negotiations with Credit Suisse Group AG and Credit Suisse AG, Law360 reported.

The class of investors has accused various financial institutions of working together to manipulate the Swiss franc Libor. Their motion comes after the class asked the court to approve a $21 million settlement with NatWest Markets in June. They also asked the court to approve a $13 million settlement with Deutsche Bank that month.

The plaintiffs said that the settlement is substantively fair, too, because it allows for considerable relief to eligible class members. They say the terms are similar to those of a $22 million settlement they agreed on with JPMorgan Chase & Co., which was approved by the court in 2017. Law360 notes that ‘[i]f all four settlements secure final court approval, the total recovery will be $69.75 million for the settlement class, according to the memo.”

The proposed settlement class, preliminarily approved for the JPMorgan settlement, includes anyone who had any interest in Swiss franc Libor-based derivatives from 2001 through 2011. The investors said their negotiations with Credit Suisse began in August 2021, and they signed the settlement agreement on July 13.

Sonterra Capital Master Fund Ltd. and several related entities accused a group of financial institutions of conspiring to manipulate the Swiss franc Libor, which reflects the daily interest rate benchmarks at which banks can borrow Swiss francs. The original February 2015 suit, one of a number filed in the wake of the alleged Libor-rigging scandal, claimed that the lenders reaped huge profits and undercut competition by conspiring to rig the Swiss franc Libor and control the price of derivatives linked to the benchmark, damaging U.S. investors.

The investors in the complaint contended that the banks ran a cartel to fix the bid-ask spread, which is the difference between prices they offered to buy and sell Swiss franc Libor-based derivatives. UBS; NatWest, formerly known as the Royal Bank of Scotland PLC; JPMorgan; Credit Suisse; and Deutsche Bank — each of which sat on the British Bankers’ Association Swiss franc Libor panel — cashed in by coordinating their efforts to rig the Swiss franc Libor, which was used to price the derivatives.

The case had been ongoing for several years. It involved two dismissals by U.S. District Judge Sidney H. Stein. A successful appeal by the investors to the Second Circuit was successful in September 2017. The appeals court remanded the case for further proceedings in light of its 2021 decision in Fund Liquidation Holdings LLC v. Bank of America Corp. In that decision, the Second Circuit found that even though the initial plaintiff investment funds dissolved before the case began, the real party in interest had standing at all relevant times.

The investors are represented by Vincent Briganti and Geoffrey M. Horn of Lowey Dannenberg PC. The case is Sonterra Capital Master Fund Ltd. v. Credit Suisse Group AG et al., case number 1:15-cv-00871, in the U.S. District Court for the Southern District of New York.

Source: Law360.com

Class Action Settlements

There have been a number of significant class action settlements around the U.S. during July. Several of the settlements have received court approval.

Court Grants Final Approval Of $264 Million Mylan EpiPen Settlement

On July 12, U.S. District Judge Daniel D. Crabtree issued a memorandum and order granting final approval of a $264 million settlement between Mylan and EpiPen consumers, bringing five years of litigation to a close.  Mylan was the final defendant remaining in the multidistrict litigation, which was consolidated in federal court in the District of Kansas in August 2017. 

According to the settlement terms, Mylan will pay the class a $264 million cash settlement.  The recovery is guaranteed to be distributed to the class, with no funds reverting to Mylan.  Combined with the $345 million Pfizer settlement approved in November 2021, the recovery for consumers in the class totals $609 million.  The court granted class counsel’s request for attorneys’ fees of one-third of the settlement, citing that the recovery was “substantial” in the face of “hotly contested” disputes regarding liability and damages. It also said that class counsel had taken the case wholly on a contingency, with no guarantee of a fee or of recouping the “huge expenditures” involved in litigating the case, which totaled more than $11 million throughout the action. 

The class action accused pharmaceutical companies, including EpiPen seller Mylan and Pfizer, of racketeering and state antitrust violations.  Last October, District Judge Crabtree dismissed several claims against Mylan, including counts violating state antitrust laws, conspiracy, and racketeering claims brought under the Racketeer Influenced and Corrupt Organizations Act.  The state law claims alleged Mylan’s marketing and sales tactics, including Mylan’s use of exclusive rebates to undermine competition, created an unfair monopoly in the epinephrine auto-injector market that inflated prices for consumers. 

The sprawling multidistrict litigation was sparked after the price of an EpiPen climbed up to $600 in 2016 from its $100 price tag less than a decade earlier. The buyers claimed that Mylan, selling EpiPens made by Pfizer, conspired to maintain the emergency treatment’s monopoly through large rebates issued to insurers and Medicaid plans that refused to cover a competing medication.  The two companies are also accused of employing reverse-payment patent settlements and other tactics to thwart the emergence of generic competitors. 

Like the previous Pfizer settlement, settlement funds would be divided into two pools, one for individual consumers and one for third-party payors. 

James Eubank from our firm has been involved in the litigation, representing an Alabama resident with serious allergies whose doctor prescribed EpiPens for him in case of anaphylaxis. 

The case is In re: EpiPen Marketing, Sales Practices and Antitrust Litigation, case number 2:17-md-02785, in the U.S. District Court for the District of Kansas.

Apple Settles Claims Over Defective ‘Butterfly’ Keyboard

A California federal judge is considering approving a $50 million settlement proposed by a certified class of Apple MacBook users. The settlement would resolve claims that the Cupertino, California-based multinational technology company knowingly sold laptops with defective “butterfly” keyboards.

The nationwide settlement seeks up to $16.6 million in fees, up to $2 million in expenses, and a $5,000 award for each class representative. If the plan is approved, class members who purchased multiple keyboard replacements due to the butterfly keyboard issue would receive $300, and those who only purchased one replacement would receive $125. Class members who had single keycaps replaced would get $50.

The lawsuit was initially filed against Apple Inc. in 2018 over claims that the company knowingly sold laptops with defective butterfly keyboards prone to sticking or becoming unresponsive. Consumers paid between $400 to $700 for replacements.

In April 2019 and again in December 2019, U.S. District Judge Edward Davila, who was tapped to oversee the litigation, reduced some allegations and dismissed some claims. In March 2021, he certified a consolidated class of Apple consumers in multiple states.

The class claims the settlement is fair and reasonable, considering ongoing litigation could result in a judgment ranging from $178 million to $569 million if the class prevailed at trial and appeals. The proposed $50 million settlement represents about 9% to 28% of the total estimated damages, which, according to the motion, “falls within the typical range of recovery in class action settlements.”

A hearing on the class’s motion is scheduled for Jan. 19.

Judge Approves $11.7 Million Attorney Fee From $35 Million KPMG Settlement

One-third of the $35 million settlement accounting firm KPMG agreed to pay last March to end a class action lawsuit brought by Miller Energy Resources Inc. investors will go toward attorney fees. U.S. District Judge Thomas A. Varlan approved the $11.7 million disbursement and more than $500,000 for litigation expenses. Miller Energy investors had sued KPMG, alleging the firm helped the energy company overvalue financials regarding its oil and gas assets.

The lawsuit was originally filed in 2016. The investors alleged that in 2009, Miller Energy paid $4.45 million for oil and gas assets in Alaska but claimed those assets were worth $480 million. The investors urged Miller Energy to retain an accounting firm two years later. Meanwhile, the U.S. Securities and Exchange Commission (SEC) also began asking questions about the energy company’s valuation of those assets.

Miller Energy hired KPMG, which endorsed the company’s valuation. However, when it came to light that KPMG had understated extraction costs, Miller Energy’s stock plummeted, leading to its delisting from the New York Stock Exchange in 2015. The energy company filed for bankruptcy shortly thereafter.

The investors filed the lawsuit alleging that KPMG’s actions essentially protected Miller Energy from investor scrutiny by endorsing the company’s financial statements instead of exposing it as fraud. In 2017, the SEC slapped KPMG with $6.2 million in fines for audit failures.

Trading App Robinhood Agrees to Pay $20 Million to Settle Hacking Claims

Robinhood Financial LLC has agreed to shell out up to $20 million to compensate thousands of customers who claim the investing and trading app failed to maintain industry-standard security measures which could have prevented third parties from improperly accessing their accounts. Since 2020, about 40,000 Robinhood customers’ accounts were affected.

Under the proposed settlement, Robinhood would pay class members up to $260 each for certain out-of-pocket losses up to $500,000. The proposed settlement covers Robinhood users in the U.S. whose accounts were hacked between Jan. 1, 2020, and April 27, 2022.

The investment company would also provide two years of credit monitoring and identity theft protection services to class members, a package worth an estimated $19.5 million. Robinhood also agreed to improve its data security services. Class counsel is also seeking attorney fees and reimbursement of litigation expenses, as well as service awards for each of the named plaintiffs, Kevin Qian and Michael Furtado.

In January 2021, Robinhood customer Siddhartha Mehta filed a lawsuit in California state court blaming the company for “negligently and in violation of California law allowing unauthorized users to access his personal information and loot his account.”

Once Robinhood removed the action to federal court, Mehta amended his complaint and added fellow plaintiffs Qian and Furtado. Mehta ultimately “elected to pursue individual arbitration” rather than accept the settlement.

The settlement doesn’t cover claims in a separate pending litigation over a data security incident Robinhood announced last November.

Oracle Investors Seek Approval of $17.5 Million Settlement

A class of Oracle Corp. investors asked U.S. District Judge Beth Labson Freeman of the Northern District of California to preliminarily approve a $17.5 million settlement to resolve securities fraud claims. The class is comprised of all persons and entities who purchased or acquired Oracle common stock from May 2017 to June 2018.

The litigation was originally filed in August 2018 over allegations that the tech company and key executives misrepresented Oracle’s cloud services revenue growth resulting in a one-day 9.4% stock price drop. The investors claimed the technology company violated provisions of the Exchange Act by issuing false and misleading information to the media, the U.S. Securities and Exchange Commission, and in statements made during investor and analyst conference calls.

The court certified the class in May, rejecting Oracle’s argument that the investors had failed to prove damages.

Oracle had claimed its profits were the result of providing quality service. However, the investors argued that the company pressured them into buying unnecessary cloud services by threatening to charge them with additional fees and penalties. The investors claimed that the company’s tactics failed when angry customers refused to renew their cloud services, resulting in sluggish growth and a loss of shareholder value.

The motion for the preliminary approval is scheduled for Sept. 15.

$20 Million in Attorney Fees Awarded in JPMorgan Spoofing Case

U.S. District Judge Gregory H. Woods awarded lawyers representing a class of JPMorgan investors $20 million in attorney fees. The award stems from a lawsuit that the investment firm settled in December for $60 million, alleging the company illegally placed and canceled metals futures orders to create demand — a practice known as spoofing.

Judge Woods also granted an additional $400,000 in litigation expenses and $110,000 in incentive awards for the 11 class representatives. The payout represents about 7% of the estimated $915 million in class-wide damages. Once finalized, the settlement will resolve six consolidated investor lawsuits against JPMorgan and three of its former traders.

The class includes individuals and entities that purchased or sold any precious metals futures of options on the New York Mercantile Exchange or the Commodity Exchange Inc., from March 1, 2008, to Aug. 31, 2016.

The settlement also brings to rest civil actions initially filed in 2018 following the guilty plea of former JPMorgan trader John Edmonds and claims against fellow ex-traders Robert Gottlieb and Michael Thomas Nowak. In 2019, former trader Christian Trunz pled guilty to federal spoofing charges. Nowak and three other traders are currently fighting criminal racketeering charges in Illinois federal court.

In Sept. 2020, JPMorgan entered into a deferred prosecution agreement and agreed to pay $920 million in fines, including a $436 million criminal fine, to resolve an investigation by the U.S. government. In September 2021, the company inked a $15.7 million deal with investors over Treasury spoofing.

T-Mobile Agrees to $350 Million Settlement Over Massive Data Breach

T-Mobile agreed to pay $350 million to settle claims from more than 76 million American consumers who allege their personal information was exposed during a 2021 data breach. The telecom giant also agreed to spend an additional $150 million over the next two years to boost its data security.

Under the proposed agreement, T-Mobile would pay members of the proposed nationwide class action $25 per hour, or their hourly rate if it’s higher, to reimburse them for the time they missed at work to deal with the impacts of the data breach. Class members can also receive up to $25,000 for losses resulting from the breach and services to ensure future protection. The plaintiffs also seek to certify a California subclass.

Should the deal be approved, attorneys would be eligible to seek up to 30% of the $350 million settlement, amounting to roughly $105 million.

In August 2021, T-Mobile confirmed that the personal information of tens of millions of its customers had been hacked by bad actors who gained access to the personal data of Tits customers. That data included information such as credit applications from about 41 million customers with details such as names, birth dates, and social security numbers. 

“Plaintiffs believe strongly in their claims, and at the same time, they understand that the great number of uncertainties and the substantial delay in a final litigated resolution weigh in favor of an immediate, guaranteed resolution of the litigation that provides substantial relief,” class members told a Missouri federal court in July.

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 & 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.

CLIMATE CHANGE LITIGATION

West Virginia v. EPA Update

In a 6-3 opinion, the U.S. Supreme Court limited the ability of the Environmental Protection Agency (EPA) to regulate power plant emissions under the Clean Air Act. This decision, reported by Law360.com, reverses a prior D.C. Circuit Court ruling striking down the Trump administration’s Affordable Clean Energy rule, which repealed the Obama administration’s Clean Power Plan, replacing it with more limited regulations of carbon dioxide emissions from existing power plants. The big oil companies had been working long and hard to bring about a “gutting” of the Clean Air Act. This decision is a disaster in the ongoing battle to control climate change.

In previous rulings, the Supreme Court had made it crystal clear that the EPA has the authority to regulate greenhouse gases under the Clean Air Act. However, the majority in the West Virginia case calls into question the EPA’s authority to institute these regulations, finding that the EPA exceeded its authority in allowing states to issue regulations focused on increasing the use of cleaner electricity sources because these regulations impacted economic forces outside of individual powerplants. The majority opinion emphasizes that a “decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body,” according to Law360.

This decision severally limits the EPA’s overall policy-making power, and while it does not eliminate the EPA’s authority to regulate greenhouse gas emissions, it is a blow to efforts to control climate change. Beasley Allen lawyers are evaluating the effects of the high court’s opinion. We will report further on this matter in future issues.

Sources: Law360.com

THE CONSUMER CORNER

The Federal Trade Commission Warns PBMs: Manufacturers That Pay For Formulary Placement Damage Consumers And Competition

The Federal Trade Commission (FTC) recently issued a policy statement warning drug companies and Pharmacy Benefits Managers (PBMs) that enforcers are watching. The FTC’s issue statement was a pretty clear indication, supported by research that it and others are looking at rebates and other pricing schemes that block patients’ access to cheaper medications. 

During an open meeting where the commission voted unanimously to issue the statement, Chair Lina Khan said:

I’m committed to ensuring that we are scrutinizing the business practices across the pharmaceutical supply chain that may be contributing to this urgent problem. She also explicitly stated the intent of the issue statement was to “put market participants on notice.”

Turning to the price of insulin as a stark example, the issue statement noted the wholesale price nearly tripled between 2009 and 2017, forcing some patients to pay upwards of $500 per month out of pocket for the medicine. It also recognized testimony where people talked of family members dying after rationing their insulin supplies in response to fears about the rising costs.

There may be other factors in rising prescription drug costs, and the FTC recognized that in its issue statement, but the commission is rightly focusing on rebates drugmakers pay to PBMs and other intermediaries to get their products preferential treatment on formulary lists. These lists determine which drugs are covered by insurance and at what cost to consumers. Some of these rebates (paid to the PBMs) are based on usage – more prescriptions flowing through the PBM equate to higher payments to the PBM – or are based on the exclusion of other, sometimes cheaper, similar treatments. 

Research shows the result is incentivization to steer patients to higher-cost drugs while excluding the lower-cost generic or biosimilar versions to maximize the rebates they receive, which the agency said are not always shared with patients. Not only may the practices increase costs to consumers directly, but the practices also indirectly increase costs by stifling competition.

The statement accompanies the FTC’s recently launched study to probe PBM business practices, issuing information requests to six of the biggest companies in the industry: UnitedHealth Group Inc.’s OptumRx, Aetna/CVS Health Corp.’s Caremark, Cigna Corp.’s Express Scripts, Humana Inc., Prime Therapeutics LLC, and MedImpact Healthcare Systems Inc.

Lawyers in our firm have been tracking drug pricing concerns, particularly PBMs, for many years and will continue to do so to lend our hand to tackling this extremely important issue. If you have any questions, contact Beasley Allen lawyer Rebecca Gilliland. Rebecca is in our Mobile office and will be glad to talk with anyone interested.

Source: Law360.com

Prenatal Exposure To Acetaminophen Potentially Linked To Cognitive, Learning & Behavioral Problems

A growing body of research suggests that using pain relievers with acetaminophen (also known as paracetamol) by pregnant women might alter fetal development. Over the past several years, scientists, researchers, clinicians, and public health experts around the globe have observed that in utero exposure to acetaminophen may be partially responsible for male reproductive disorders and cognitive, learning and behavioral problems among children. This consensus statement was published in Nature Reviews Endocrinology on Sept. 21, 2021.

Acetaminophen is mainly used to relieve moderate pain and fever and is the active ingredient in over 600 medications. Acetaminophen was first marketed in the United States in 1950, and its widespread use started in the 1980s when sales first surpassed those of aspirin.  Initially, government authorities in the United States considered acetaminophen to be of minimal risk for pregnancy use. However, concerns related to prenatal exposure have increased in recent years as up to 50% to 60% of women in the United States have used this medication during pregnancy.

Zeyan Liew, Ph.D., M.P.H, a Yale professor, noted, “Our lab was among the first to report potential harmful effect of acetaminophen on fetal brain development in a large longitudinal human cohort study. It is time to take the growing body of evidence seriously and consider precautionary measures.”

According to the Yale School of Public Health’s website, it “has previously contributed to published research that linked pregnancy intake of acetaminophen with an increased risk for attention deficit hyperactivity disorders (ADHD), as well as impaired cognitive and executive function. The cohort included more than 60,000 mothers and children. A replication of findings for the association observed between maternal intake of acetaminophen and childhood ADHD was also performed, using a national cohort of nurses and their children in the United States.”

In 2015, the FDA reviewed the reports concerning the safety of prescription and over-the-counter pain medicines, including acetaminophen, used during pregnancy. The FDA concluded that more evidence is needed and suggested pregnant women always consult their health care professional before taking any prescription or OTC medicine.

It is now recommended by the signatories that women forgo using acetaminophen unless medically indicated after consulting with a physician. They also note that pregnant women should minimize risk by using the lowest effective dose for the shortest possible time. Lastly, the signatories think it would be ideal for packaging medications containing acetaminophen to include warning labels informing users about this advice.

If you have any questions or need more information, contact Aigner Kolom, a lawyer in the firm’s Mass Torts Section.

Source: Yale School of Public Health

FTC Sues Walmart For “Turning A Blind Eye To ‘Scam Artist’”

The Federal Trade Commission (FTC) has sued Walmart for allowing its money transfer services to be used by fraudsters, who fleeced consumers out of hundreds of millions of dollars. In its lawsuit, the FTC alleges that for years, the company turned a blind eye while scammers took advantage of its failure to secure the money transfer services offered at Walmart stores properly. The company did not properly train its employees, failed to warn customers, and used procedures that allowed fraudsters to cash out at its stores, according to the FTC’s complaint. The FTC is asking the court to order Walmart to return money to consumers and to impose civil penalties for Walmart’s violations. Samuel Levine, director of the FTC’s Bureau of Consumer Protection, stated:

While scammers used its money transfer services to make off with cash, Walmart looked the other way and pocketed millions in fees. Consumers have lost hundreds of millions, and the Commission is holding Walmart accountable for letting fraudsters fleece its customers.

In addition to its retail business, Walmart offers financial services to consumers in its stores, including money transfers, credit cards, reloadable debit cards, check cashing, bill payments and more. Walmart acts as an agent for multiple money transfer services, including MoneyGram, Ria and Western Union, offering some services under its own brand, like “Walmart2Walmart” and “Walmart2World.” According to the complaint, tens of millions of money transfers are sent or received at Walmart stores each year, where Walmart employees process them.

Money transfers are services that people use to send money to a recipient in another location. They are frequently used by fraudsters across a wide variety of scams because they are nearly impossible to retrieve after the money has been picked up. The FTC has brought multiple cases against money transfer services in recent years, including against MoneyGram and Western Union, alleging they failed to protect consumers who used their services.

Walmart’s practice of turning a blind eye to fraud had grave consequences for consumers, according to the complaint. The complaint cites numerous instances in which law enforcement investigations found that scammers relied on Walmart money transfers as a primary way to receive payments, including in telemarketing schemes like IRS impersonation schemes, relative-in-need “grandparent” scams, sweepstakes scams, and others. Based on information from fraud databases maintained by MoneyGram, Western Union, and Ria, from 2013 to 2018, more than $197 million in payments that were the subject of fraud complaints were sent or received at Walmart, with more than $1.3 billion in related payments also possibly connected to the fraud.

The FTC’s investigation of Walmart’s money transfer practices showed, according to the complaint, that Walmart knew about the role money transfer services play in scams and frauds. Despite that, the company’s money transfer services harmed consumers in numerous ways, including:

• Allowing the payout of suspicious transfers: For years, according to the complaint, it was Walmart’s stated policy for its employees to issue payouts even in the case of a suspicious money transfer, making it easy for scammers to retrieve fraud proceeds at a Walmart location. The complaint cites a Walmart reference guide for employees that stated: “If you suspect fraud, complete the transaction.”  Walmart did not begin training employees to deny fraudulent payouts until at least May 2017, but even then, it provided this training only to employees at a limited number of locations.
• Having no anti-fraud policy or an ineffective, poorly enforced policy: According to the complaint, despite offering money transfer services for many years, Walmart did not have a written anti-fraud or consumer protection program until November 2014. After that time, the complaint cites numerous instances in which Walmart failed to have an effective program or violated its own policies, as well as the policies of its partners, like MoneyGram, that were ostensibly in place to protect consumers from fraud.
• Allowing cash pickups for large payments: The complaint notes that, unlike most other outlets where money transfers can be received, Walmart pays even large payments in cash. In addition, the complaint notes that scammers were often able to retrieve their payments from Walmart by using fake IDs. This made it an attractive option for fraudsters looking to conceal their identities.
• Not providing materials to prevent consumers from sending fraudulent payments: According to the complaint, Walmart failed to display or provide required materials to consumers at many of its locations that could have warned them about potential frauds and stopped them from sending money to scammers. More recently, the company stopped using a paper “send form” that included important information for consumers to help them realize they may be making a bogus payment, replacing it with a printout that contains only small print warnings.
• Failing to effectively train or retrain staff: The complaint alleges that Walmart’s training materials for the tens of thousands of employees who worked with money transfers were often contradictory or unclear. In many cases, employees who were authorized to handle money transfers as “backups” received no anti-fraud training at all or only limited training related to transfers. The complaint notes that in some instances, Walmart staff were complacent or complicit in scams, accepting cash tips from scammers in exchange for processing fraudulent payments or being directly involved in the scams themselves.
• Allowing money transfers to be used for telemarketing purchases: The FTC’s Telemarketing Sales Rule has since 2016, prohibited money transfers from being used to pay for telemarketing purchases because of the high risk of fraud. But the complaint alleges that, for years, Walmart failed to take steps to comply with that provision.

The FTC vote to file the civil penalty complaint was 3-2, with Commissioners Noah Joshua Phillips and Christine S. Wilson dissenting. The FTC filed the complaint in the U.S. District Court for the Northern District of Illinois. We will continue to report on the progress of this case as it further develops.

Source: Federal Trade Commission

TikTok Sued Over “Blackout Challenge” Deaths Of Two Girls

Two new wrongful death lawsuits renew attention on TikTok and what advocates and plaintiffs call the deadly Blackout Challenge. The suits were filed by the Social Media Victims Law Center on behalf of the parents of two girls – the latest victims in the social media platform’s challenge that “encourages users to choke themselves with belts, purse strings or other similar items until passing out.”

Lalani Erika Walton, 8, of Temple, Texas, and Arriani Jaileen Arroyo of Milwaukee, Wisconsin, 9, died July 15, 2021, attempting the challenge with fatal results due to self-strangulation, PennLive reported. It also noted that the platform was previously sued over the blackout challenge.

The Washington Post reported in May that Nyla Anderson, a 10-year-old Pennsylvania girl used a clothes hanger and purse to hang herself in her mother’s closet. Nyla’s mother, Tawainna Anderson of Chester, Pennsylvania., filed a wrongful-death lawsuit against TikTok in the U.S. District Court in Eastern Pennsylvania following her daughter’s death.

The latest lawsuit claims that TikTok’s “dangerous algorithm” pushed the deadly Blackout Challenge into the girls’ “For You Page”  “intentionally and repeatedly.” It further claims that this action incentivized the children to participate in the challenge that killed them. Matthew P. Bergman, a laywer who founded the Social Media Victim’s Law Center, said:

TikTok needs to be held accountable for pushing deadly content to these two young girls. TikTok has invested billions of dollars to intentionally design products that push dangerous content that it knows are dangerous and can result in the deaths of its users.

The Washington Post reported other children who allegedly died performing the blackout challenge after seeing it on TikTok, “including a 14-year-old Australian boy in April 2020, a 10-year-old Italian girl in January 2021, a 12-year-old Colorado boy in April of that year and a 12-year-old Oklahoma boy in July 2021, according to the lawsuit.”

The Washington Post reported that TikTok argued that the Blackout Challenge existed before the social media platform and that the challenge has never been a trend on the platform. The news outlet reported that TikTok has also been sued for other deadly challenges. It noted that two Wisconsin men were electrocuted while performing fractal wood burning. Other deaths occurred due to a challenge that “involved jumping in front of moving trucks.”

Pennsylvania Attorney General Josh Shapiro announced in March that the state is joining eight others as they investigate the dangers TikTok poses to children and young adults. Hopefully, those efforts will be successful.

Source: PennLive.com, The Washington Post

Fisher-Price And Regulators Warn Of Baby Rockers’ Risks After 13 Deaths

The Washington Post reported more Fisher-Price products have federal regulators and the company warning parents about their risks – the Infant-to-Toddler Rocker and Newborn-to-Toddler Rocker. In June, the Consumer Product Safety Commission (CPSC) announced that parents should not leave infants unsupervised, unrestrained or asleep in the rockers. During a 12-year span, 13 deaths were reported involving the rockers.

The rockers have reclining seats designed to swing back and forth to soothe the child. Yet the CPSC’s new regulations require infant sleep products to have a sleep surface angle of 10 degrees or less. The American Academy of Pediatrics also warns that a reclining position puts a baby at risk of suffocation. The group’s guidelines specify that infants should sleep on their backs in an empty crib or bassinet. Parents and caregivers should avoid placing extra materials, such as pillows or toys, in a baby’s sleep area to reduce the risk of suffocation further.

“No inclined product, made by Fisher-Price or any other company, is safe for infant sleep. Only a firm, flat surface is safe,” CPSC Commissioner Richard Trumka Jr. said. He noted that Congress passed the Safe Sleep for Babies Act and could ban such products starting June 23.

In April 2019, the CPSC recalled another Fisher-Price product, “the Rock ’n Play Sleeper,” after the agency linked more than 30 infant deaths to the product. The Rock n’ Play also has an inclined seat, and certain models include headrests and toys.

The company had manufactured 4.7 million Rock n’ Play sleepers that sold for $40 to $149 each at the time of the recall. The Washington Post explained that this was a popular alternative to high-end bassinets for parents looking for ways to help their children sleep.

Another group echoed warnings that positioning babies on their backs is the safest way for them to sleep. Injury Prevention Project Coordinator with Blank Children’s Hospital in Des Moines, Janna Day, said an inclined sleeping surface should only be used when there is an identified medical need and parents and caregivers should discuss options with the child’s health care provider.

She explained that inclined sleeping areas “are more of an area for the baby to sit, maybe play with their toys, but they are not suitable for sleeping.” She also noted that the products can be used but should be used under adult supervision and when the child is properly secured.

The CPSC issued a safety alert, not a recall, because the incidents are still under investigation, according to Pamela Springs, Director of Communications at the CPSC. The agency will determine if a recall is needed after it completes its investigation.

The agency issued another warning in 2019 after an infant’s death was associated with an inclined rocker made by Kids II. Although the CPSC learned about the deaths in April, Commissioner Richard Trumka explained that a law requires the agency to negotiate with a manufacturer before publicizing the issue. He called the requirement a “gag rule,” condemned it for “needless” delay and called on Congress to repeal it immediately. He said:

If CPSC cannot issue timely warnings, dangers will remain hidden in people’s homes.

In some cases, talks between safety regulators and companies break down, forcing the agency to take action. For example, in July 2021, CPSC sued Amazon over hundreds of thousands of hazardous products sold on the company’s platform, including faulty carbon monoxide detectors and flammable children’s sleeping garments. The agency could not reach an agreement with the company for a voluntary recall after months of behind-the-scenes negotiations.

Members of the public can report any incidents involving baby rockers at www.saferproducts.gov. Consumers can reach Fisher-Price at 800-432-5437 to report related incidents and view safety videos on the company’s Safe Start webpage at http://www.fisherprice.com/SafeStart.

Source: The Washington Post

CURRENT CASE ACTIVITY AT BEASLEY ALLEN

The Latest 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, the top navigation, or the Practices page of our website. 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

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

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 on the Cases page of our website.

Resources to Help Your Law Practice

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 essential 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, both 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 our publications, visit our website at BeasleyAllen.com/Publications.

PRACTICAL TIPS FOR TRIAL

Keys To Preparing A Successful Products Liability Case

Success in products liability cases is essential for plaintiffs and importantly for all consumers. Obtaining compensation for those injured due to the wrongdoing of others and prompting industry-wide changes to improve safety are just two crucial outcomes of products liability cases. It’s important to realize that these cases can be complicated, expensive and time-consuming. The secret to success is for a lawyer to create a strong foundation from which they can build their case. Here are a few tips from Graham Esdale, a lawyer in our Personal Injury & Products Liability Section who handles Product Liability cases, to keep in mind and which will help build a strong foundation for a products liability case.

Consider your client. How the judge or jury perceives your client is paramount both in the courtroom and in mediation. Their credibility is just as important as the story and details behind their case. If you have questions about whether your client is trustworthy, sympathetic or likable, you can expect the judge, jury or defense lawyer will, too.

Find non-party witnesses. The same concerns hold true with your client’s family members and other key witnesses. This strengthens the importance of finding non-party testimony. Neutral first responders, doctors, co-workers and eyewitnesses are more apt to come across as credible because they have nothing to gain at the end of the case.

Preserve evidence. It is imperative that you take swift action to preserve evidence such as the vehicles or equipment involved in the accident. Model number, year and date of sale, the manufacturer and where the product was made are critical to your investigation. Research any recalls or investigations related to that product. Scour consumer report studies and investigate any warnings related to the product showing the maker knew there were concerns about the product.

Examine the extent of your client’s injury. A judge or jury will be tasked with assigning a value to your client’s injury and will consider factors such as the amount of pain and suffering and your client’s ability to work. If the injury is not debilitating or fatal, the case costs will consume most, if not all, of the recovery. As difficult as it may be, it is a reality you have a responsibility to share with your client.

Consider the venue. The venue can similarly impact the case: How receptive will your judge be to a time-consuming, complex case? How receptive will your jury be to holding a product manufacturer accountable? How do you believe your client or critical witnesses will be received? Will the jury harbor bias? Is the defendant important to the local economy? These are not insurmountable challenges, but they are factors that will affect your case and, as such, should be considered. It would help if you also prepared for the possibility that your case may be removed to another court. 

Know the law. Anticipate and prepare to counter the defenses the product defendants will proffer. The primary defenses are personal jurisdiction, statute of limitations, statute of repose, the innocent seller doctrine, altered product by a third party, spoliation, awareness of defect, preemption or optional equipment. In some states, statute of repose and comparative negligence can be major defenses to products claims.

RECALLS UPDATE

A large number of safety-related recalls were issued during July. 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

Angela Frazier

Angela Frazier, who works in the firm’s Operations Department as a Receptionist, has a job that is quite active. She answers the firm’s phone line and transfers calls and messages to the appropriate individual or area. Angie is also responsible for appropriately distributing daily fax messages received and assisting with other projects as needed. Angela has been a dedicated employee of the firm for over 17 years. Her role is vital to the firm, and we are proud to have her with us!

Angela and her husband, Gary, have been married for 43 years. Angela says Gary is a wonderful husband, father, and “Papa.” The Fraziers have three adult children who Angie says are married to their “wonderful spouses.” They also have seven grandchildren, ranging from one to 21. Angela says this group keeps them on their toes but also brings them a lot of joy! Angela says that she and her husband are truly blessed! In her spare time, Angela loves spending time with her family, completing puzzles on her tablet, reading, crocheting, and cross stitching. She also enjoys ceramics and yard work with her grandson.

Angela shared that her favorite thing about working at Beasley Allen is the wonderful people she works with daily. She says, “I enjoy helping the clients and others if needed.” Once again, we are fortunate to have Angela with us!

Ben Locklar

Ben Locklar joined Beasley Allen in 2005.  Prior to joining the firm, Ben had been practicing law for almost 18 years, primarily doing plaintiff work at his prior firm.  Ben first worked in the firm’s Mass Torts Section, primarily on the Vioxx litigation. The Vioxx cases settled for $4.85 billion. When the Vioxx litigation concluded, Ben moved to the firm’s Personal Injury & Products Liability Section. He currently handles a variety of cases, including car accidents, trucking accidents, product liability cases, and others.  Ben previously handled mesothelioma and nursing home neglect cases.   

Ben recalls two experiences from his youth that fueled his desire to become a lawyer. In a mock trial during his days at Capitol Heights Junior High School, he defended an accused murderer.  The prosecutor in the case was Quinton Seay, son of famed civil rights lawyer Solomon Seay. During high school, Ben participated in the Alabama Youth Judiciary. He remembers a mock trial in which he faced the son of former Alabama Supreme Court Justice Henry Steagall II. The trial judge in the mock trial was then Judge Joe Phelps.    

When Ben began attending Cumberland Law School in 1986, his dream was to one day become a judge. However, he says:

Time changes perspectives. What I found when I became a lawyer is that I had been entrusted with a great responsibility. I had been charged with the opportunity to serve the judicial system by helping others to maneuver through the complexities of this world. I became a captain of a ship, if you will, with the court system being the ocean.

Ben has come to understand his true calling over time. He had this to say about his change in plans:

I may have become a lawyer because of my desire to try cases and later become a judge, but I have found that the reason the Lord prepared a path for me to be a lawyer is so that I could serve others and, as our firm’s motto states, ‘help those who need it most.’ Though I may have become an attorney for my own selfish reasons, I have found fulfilment by representing and serving my clients.

Ben says his favorite part of practicing law is the people with whom he interacts and the relationships he has developed. He says that he and some of his former clients keep up with each other’s families, and he frequently hears from clients he represented years ago. Ben describes a typical initial meeting with a client, saying:

When I meet a client for the first time, that client has a mountain before them. Sometimes, that mountain is defined by tragedy, such as the loss of a child or other loved one or because of a life-changing injury. Most find the challenges caused by the unfortunate event they brought to me to be overwhelming. It is my responsibility to, first and foremost, be honest with the client. My clients have found that I am a straight shooter. I tell them like it is, and they appreciate it.

Ben believes what sets Beasley Allen apart is its godly leadership and the desire to follow God’s will. He says:

Beasley Allen is unique because we do it the right way. Judges, other lawyers and clients know that Beasley Allen lawyers will not cut corners, will represent our clients with compassion, are not afraid to go to trial, and speak truthfully while protecting our clients. I do not believe there is another firm in the country with the level of respect that our firm has inside and outside the legal community. I am thankful to play a small part in a wonderful law firm.

Martindale-Hubbell has rated Ben an AV Preeminent attorney – the highest possible Martindale-Hubbell rating a lawyer can achieve in legal knowledge, analytical capabilities, judgment, communication ability and legal experience. He has also been selected to the Best Lawyers in America list since 2017 and the Midsouth Super Lawyers list since 2018. Ben is a talented trial lawyer who is dedicated to his clients. He works very hard to help them receive justice in their cases. We are fortunate to have Ben with us, and he is a tremendous asset to the firm.

Paula Shaner

Paula Shaner is a Legal Secretary in the firm’s Mass Torts Section, where she has worked for nearly nine years. She is responsible for various clerical and administrative duties, including making phone calls to clients and assisting with other projects as needed. Paula has been a dedicated employee of the firm for 19 years. She does excellent work! We are thankful to have Paula with us! 

Paula and her daughter live with her mother. Paula shares that as her mother is aging, she is thankful to be in a position to help her as needed. Paula says that her “fur baby, Bear,” is very diligent in keeping her on track! Paula’s hobbies include reading, working on different crafts, and catching up with friends.

When asked what her favorite thing about working at Beasley Allen is, Paula replied:

I have enjoyed my years with the Beasley Allen family. Over the years, some very special people have come into my life through working here. There is only one place that I have worked that actually puts family first. Beasley Allen has seen me through several life events, and I do not know what I would have done without this family.

Roger Smith

Roger Smith joined the firm in 2001, focusing his practice on complex litigation involving pharmaceutical and medical devices in Beasley Allen’s Mass Torts Section. He has successfully resolved thousands of cases and helped negotiate the $4.85 billion Vioxx and $2.4 billion Actos global settlements. Roger also served as lead attorney and obtained multimillion dollar settlements for Beasley Allen’s clients in numerous cases, including Rezulin, Serzone, Ephedra, PPA, herbal supplements, Gadolinium, Yaz/Yasmin, and Fleet Phospho-soda. He is currently working on injury claims related to Belviq, a weight loss drug pulled from the market due to cancer risks and acetaminophen usage linked to autism. 

Growing up in Greeneville, Tennessee, a close friend’s father, John T. Milburn Rogers, inspired Roger both in and out of the courtroom. John was a highly skilled, award-winning criminal defense and civil lawyer consistently ranked as one of the “Top 100 Trial Lawyers” by the National Trial Lawyers Association. Following his death in 2018, the Tennessee Trial Lawyers Association posthumously honored John with its Lifetime Achievement Award.

Roger was fortunate as a youngster to hear stories about John’s cases, often surrounded by poster board exhibits, skeletons, and X-rays in the lawyer’s office. John also coached Greeneville High School’s mock trial team, guiding the team to a state championship win. Roger says that John is the reason he became a lawyer.

Roger enjoys the challenge of practicing law and exhibiting Beasley Allen’s motto of “helping those who need it most.” He says:

As I kid, I was fascinated with true crime novels. A good true crime novel starts with details of the crime, walks the reader through the investigation and the evidence discovered, and ends with the presentation of evidence and a jury verdict. Most often, true crimes are written from the perspective of the investigator or prosecutor. Their ultimate job is putting the pieces of the puzzle together and presenting a cohesive story to the jury. I always loved how the story came together. I think that’s what I like so much about my job – investigating the cause of an injury, discovering the evidence, and putting the pieces of the puzzle together. I am thankful I am able to do this for folks that need help the most.

Roger appreciates his career and clients. He’s also proud of his team and says:

Beasley Allen is unique as a law firm because we are willing to take on the Goliaths of all Goliaths – no case is too large or too complex. Whether it is taking on Johnson & Johnson for causing thousands of women to suffer ovarian cancer, Meta for writing computer algorithms that direct harmful online content to minors or JUUL for marketing e-cigarettes to minors or General Motors for putting costs over safety – our lawyers and staff are up for the long fight.”

Roger has been named to the Best Lawyers list since 2012, and Mid-South Super Lawyers list since 2018. He was also selected as Beasley Allen’s Lawyer of the Year for the Mass Torts Section in 2015.

We are fortunate to have Roger, a talented and hard-working lawyer, at Beasley Allen. He has been a tremendous asset to the firm.

Tammie Thornton

Tammie Thornton works as a Medical Advisor in the firm’s Mass Torts Section, where she began her career just over ten years ago. In her role, Tammie is responsible for reviewing case medical records, entering records into our system chronologically, and providing her medical opinion. Primarily, she works on cases involving hip and knee replacement devices, JUUL, and ovarian cancer. She also assists with other cases as needed. Tammie has a vital role within the firm and is committed to doing an excellent job!

Tammie is happily married and has four boys and one step-son. She also has two grandchildren, whom Tammie says she and her husband adore. When not at work, Tammie enjoys spending quality time with her family, reading, swimming, and mud riding with her husband in their jeep. 

When asked about her favorite things about working at Beasley Allen, Tammie replied, “helping others.” Tammie does an outstanding job in her role in the firm, and we are thankful she is on the Beasley Allen team!

SPECIAL RECOGNITIONS

Fred Gray Awarded Presidential Medal Of Freedom

On July 7, my longtime friend Fred Gray received the nation’s highest civilian honor when he was awarded the Presidential Medal of Freedom. The honor is presented to individuals who have made exemplary contributions to the prosperity, values, or security of the U.S., world peace, or other significant societal, public or private endeavors.

I can’t think of a more influential and deserving individual to be bestowed with this honor than Fred, who is very much a living Civil Rights icon. His courage, tireless work, and perseverance have shaped the course of American history and made justice more accessible to millions of Americans.

Fred continues to practice law in the Tuskegee firm he founded nearly 70 years ago. He has said that the Lord has been the constant guiding force in his work from his earliest days as a lawyer. This faith has helped him move mountains. He is best known for his service as chief legal counsel to Dr. Martin Luther King, Jr. and the protest movement that, with courage and tireless perseverance, enshrined civil rights in our Constitution. Fred defended Rosa Parks and Claudette Colvin during the Montgomery Bus Boycott – a fierce 13-month struggle that culminated with a U.S. Supreme Court decision ending segregation for public transportation.

Fred’s work also led to the desegregation of public schools and state universities throughout Alabama. He filed the lawsuit that cleared a path for the march from Selma to Montgomery after police violently crushed it on the first attempt.

He argued a racial gerrymandering case before the U.S. Supreme Court that established the one person, one vote principle, which continues to govern redistricting after every census. He also represented Dr. King’s Montgomery Improvement Association, the local branch and state conference of the NAACP, allowing it to operate within Alabama after the state’s attorney general banned it.

These are just a few examples of Fred’s landmark work. His cases are taught in every law school in the U.S. and continue to underpin the laws and verdicts that push us further toward liberty and justice for all. We still have further to go. Much further. But the United States of America is a vastly changed and more just nation because of Fred Gray, and we are all the benefactors of his legacy.

Source: The White House

Ben Baker Among 2022-2023 Alabama Association For Justice Officers

Ben Baker has been elected as First Vice President of the Alabama Association for Justice (ALAJ) and will serve during the 2022-2023 term. Ben’s duties as First Vice President include performing all duties and responsibilities assigned by the President and presiding at all meetings in the absence of the President and President-Elect. Others elected to serve as officers alongside Ben this year include Erik Heninger (President), Wesley Laird (President-Elect), Clint Mountain (Second Vice President), Lucy Tufts (Secretary), Derrick Mills (Treasurer), and Gina Coggin (Immediate Past President).

Ben has been a member of the ALAJ since 1994. He was elected Treasurer for the 2019-2020 term. Subsequently, Ben was elected for higher offices within the organization. Those elected serve a one-year term. In addition to Treasurer, Ben served as Secretary and Second Vice President.

 The ALAJ seeks to accomplish its mission of preserving and protecting the constitutional right to a jury trial guaranteed by the Seventh Amendment to the U.S. Constitution through six primary focus areas. These focus areas include eliminating civil justice restrictions, providing members with excellent educational opportunities, strengthening the civil justice system, supporting adequate court funding, participating in the selection and election of a qualified and impartial jury and working in campaigns and with the Alabama Legislature to positively affect the disclosure of public policy. Ben says:

No Alabama citizens and businesses wish to find themselves in court, but if that day ever happens, our organization is there to ensure they have equal access to justice as guaranteed by the Seventh Amendment.

The ALAJ serves the state of Alabama and maintains a Montgomery office location. Ginger Avery, Executive Director of the Association, and her staff do a tremendous job and play a key role in protecting Alabama citizens and preserving their rights.

Ben joined Beasley Allen in 2001 and practices in the firm’s Personal Injury & Products Liability Section. He has obtained numerous multimillion dollar verdicts for his clients and is involved in many professional associations in addition to the ALAJ. He is an Alabama Civil Justice Foundation Board Member and also an American Board of Trial Advocates (ABOTA) member. Ben was recognized as Best Lawyers 2021 “Lawyer of the Year” for Personal Injury Litigation – Plaintiffs in Montgomery. He was also named to the Mid-South Super Lawyers list consistently from 2010 through 2021 and has been included on the Best Lawyers list since 2013. Public Justice selected him as a finalist for 2014 Trial Lawyer of the Year. Beasley Allen named Ben Litigator of the Year in 2012 and 2014. He was also selected as the firm’s Lawyer of the Year for the Products Liability Section in 2008 and 2010.

FAVORITE BIBLE VERSES

The scriptures for this issue are being furnished by those lawyers and staff who are being featured in the Report this month. Each is giving their favorite Bible verses.

Ben Locklar

Ben Locklar shared two of his favorite Bible passages.

Trust in the Lord with all your heart and lean not on your own understanding; in all your ways submit to him, and he will make your paths straight.

Proverbs 3:5-6

What then shall we say in response to these things?  If God is for us, who can be against us? …. Who shall separate us from the love of Christ?  Shall trouble or hardship or persecution or famine or nakedness or danger or sword?  …. No, in all these things we are more than conquerors through him who loved us.  For I am convinced that neither death nor life, neither angels nor demons, neither the present nor the future, nor any powers, neither height nor depth, nor anything else in all creation, will be able to separate us from the love of God is in Christ Jesus our Lord.

Romans 8:31, 35, 37-39

Paula Shaner

Paula Shaner encourages us to read all of 1 Peter Chapter 5 with a special focus on 1 Peter 5:7. She says this has been her go-to verse for about 25 years, saying, “I was able to confirm this verse in 2006 [while] undergoing chemo and radiation for breast cancer. I gave it to the Lord before the diagnosis was confirmed. I look at that time as a bump in the road.”

Casting all your care upon him; for he careth for you.

1 Peter 5:7

Paula says another favorite verse lets her know that Jesus Christ is guiding her steps in life.

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

Jeremiah 29:11

She says that Isaiah 41:10 confirms that Christ is always with her.

 Fear thou not; for I am with thee: be not dismayed; for I am thy God: I will strengthen thee; yea, I will help thee; yea, I will uphold thee with the right hand of my righteousness.

Isaiah 41:10

Angela Frazer

Angela Frazer says John 16:33 is important to her because God tells us he has overcome this world; even though we have troubles, he is always with us giving us peace and strength to face anything that comes our way.

I have told you these things, so that in me you may have peace. In this world you will have trouble. But take heart! I have overcome the world.

John 16:33

Angie is fond of the foreshadowing of Jesus in John 3:14-15. She says, “God tells us how Moses lifted the snake in the wilderness that the Son of Man had to be lifted up so that whosoever believes in Jesus he would not perish but have everlasting life.”

Just as Moses lifted up the snake in the wilderness, so the Son of Man must be lifted up, that everyone who believes may have eternal life in him.

John 3:14-15

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

I am convinced that God definitely has plans in our lives for all of us. Sometimes we don’t understand what God’s plan is for our life.  For example, I thought at an early age that I would eventually become a football coach, and that would be my lifetime work.  However, when my football career ended in college after a knee injury, I became a college dropout for two years.  When I returned to school at Auburn University, I really had no idea what the future held for me, but I knew I had given up on coaching as a career.

Lots happened in my life from 1957 through 1978, but I will jump forward to the year 1979. This was the time when my professional life turned in a totally different direction, and I will give a brief summary of how things worked out.  Having lost the race for governor in 1978, I found myself in January of 1979 being in debt and unable to secure a job in a law firm.

I was at a loss as to what I needed to do.  Having developed a relationship with Judge Frank M. Johnson during the time I was Lt. Governor, I decided to go visit with the Judge and seek his advice.

During my visit with Judge Johnson, I relayed to him that I had sent résumés out to a number of law firms but had not gotten any responses.  I also told him that Gov. Fob James had offered me a job in state government and that I was considering taking the position.  Judge Johnson quickly responded in a rather stern manner.

The Judge asked me if I still had my law degree, and even though I realized he already knew the answer, I responded in the affirmative.  He then told me that there was a real need for lawyers in Alabama to represent victims of corporate wrongdoings and abuse and that Montgomery was notably lacking in that respect.  Judge Johnson then told me emphatically that I needed to get my rear-end (my terminology – not his) out of politics and practice law.  He then ended our visit and wished me well.

I took Judge Johnson’s advice, opened a one-lawyer office in Montgomery in January of 1979, and the rest is history.  I am convinced that God sent me to see Judge Johnson and that God led me to follow the advice the judge gave me.  God does things in sometimes unusual ways!